Opinion
F048739
5-18-2007
THE PEOPLE, Plaintiff and Respondent, v. PONDY JOHN THONG, Defendant and Appellant.
Christine Levin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Pondy John Thong, a member of the Asian Boyz (ABZ) criminal street gang, challenges his conviction of two felonies — driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)) (taking) and knowingly receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) (receiving) — both of which were committed for the benefit of, at the direction of, or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)) (criminal street gang enhancement) — and his conviction of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)) (criminal street gang crime).
On the authority of the jurys true findings of a taking prior (Pen. Code, § 666.5, subd. (a); Veh. Code, § 10851, subd. (a)) and a strike prior (Pen. Code, §§ 667, subds. (b)-(j), 1170.12, subds. (a)-(e); Veh. Code, § 10851, subd. (a)), the court imposed an aggregate seven-year sentence on count 1 — the 4-year (double the 2-year) mitigated term on the taking and, consecutively, the 3-year middle term on the criminal street gang enhancement — and stayed sentence on counts 2 and 3. (Pen. Code, § 654.) Thong raises no sentencing issue on appeal.
On appeal, Thong raises eight issues. First, he argues an insufficiency of the evidence that he committed the taking and the receiving 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. Second, he argues an insufficiency of the evidence that the ABZ "had an identifying sign or symbol," that the charged taking could be one of the two crimes necessary to establish "a pattern of criminal gang activity," and that one of the ABZs primary activities was the commission of takings. Third, on the premise that the court should have stricken the gang experts testimony as improper, he argues an insufficiency of the evidence of the criminal street gang crime and the criminal street gang enhancements. Fourth, he argues that the admission of hearsay in court records and field identification (FI) cards to which the gang expert testified violated his right to confrontation.
Fifth, on the issue of whether he was a criminal street gang member, Thong argues that the admission of evidence of FI cards from his sealed juvenile adjudication prejudiced him. Sixth, he argues that the admission of a prior identical to one of the charged crimes was an abuse of discretion and a violation of due process. Seventh, on the premise that the criminal street gang crime is a lesser included offense of the taking and the receiving with the criminal street gang enhancements, he argues that his sentence on the criminal street gang crime must be stricken. Eighth, he argues cumulative error. We will affirm the judgment.
DISCUSSION
1. Insufficiency of the Evidence of Criminal Street Gang Enhancement
Thong argues an insufficiency of the evidence that he committed the taking and the receiving "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." (Pen. Code, § 186.22, subd. (b)(1).) The Attorney General argues alternatively that Thong forfeited his right to challenge the evidence of the gang experts testimony and that Thongs argument is meritless.
Thong purports to raise a sufficiency of the evidence challenge to the criminal street gang crime on identical grounds, but neither the elements of the crime nor the authorities on which he relies in any way supports that aspect of his argument. (Compare Pen. Code, § 186.22, subd. (a) with Pen. Code, § 186.22, subd. (b)(1).) So we address his sufficiency of the evidence challenge only with reference to the criminal street gang enhancement. (See People v. Hardy (1992) 2 Cal.4th 86, 150; cf. Cal. Rules of Court, rule 8.204(a)(1)(B).)
Preliminarily, we turn to the Attorney Generals forfeiture argument. In the opening brief, Thong argues that a gang expert cannot "express an opinion that the defendant in a gang case acted with the requisite criminal intent," that the gang expert here so testified, and that by doing so he gave "improper opinion" that "cannot be relied upon to form the basis of substantial evidence." In the respondents brief, the Attorney Generals forfeiture argument emphasizes that the gang expert testified, with no objection, that stealing cars benefited the ABZ by providing not only the income to buy drugs and weapons but also the tools to commit other crimes. In the reply brief, Thong emphasizes that he opposed the prosecutors motion in limine to allow the gang expert to testify about his association with or membership in a criminal street gang. He notes that he objected to the gang experts testimony on the ground that whether stealing cars benefits a gang requires no expert testimony. Finally, he points to his numerous objections to analogous questions that the prosecutor posed to the gang expert at trial.
The rule is settled that to preserve the right to appellate review a party has the obligation to "record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." (People v. Morris (1991) 53 Cal.3d 152, 187 (Morris), disapproved on another ground by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; see Evid. Code, § 353.) To "prevent error," the rule requires "a specifically grounded objection to a defined body of evidence" so the court can "consider excluding the evidence or limiting its admission to avoid possible prejudice" and so the proponent of the evidence can "lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal." (Morris, supra, at pp. 187-188.) Thong made the court and the prosecutor aware of the nature of his opposition to the gang experts testimony. If an issue of forfeiture presents a close question, a reviewing court should assume the party seeking to raise an issue on appeal has preserved the right to appellate review and should address the merits of the issue. (People v. Champion (1995) 9 Cal.4th 879, 908, fn. 6, abrogated on another ground recognized by People v. Combs (2004) 34 Cal.4th 821, 860.) The rule "`does not exalt form over substance." (People v. Partida (2005) 37 Cal.4th 428, 434, citing Morris, supra, at p. 188.) Applying the governing law, we reject the Attorney Generals forfeiture argument and turn to Thongs insufficiency of the evidence argument.
The prosecution is entitled to prove the elements of a criminal street gang enhancement by a combination of expert testimony, documentary evidence of a prior, and testimony by percipient witnesses. (People v. Gardeley (1996) 14 Cal.4th 605, 626 (Gardeley).) Here, the vehicle owner testified to its disappearance from outside her home and to its recovery by the police a couple of days later minus the dashboard, gear shift lever, speakers, and other parts. An officer testified he arrested Thong after he saw him driving the partially dismantled vehicle. A gang unit detective testified he made probably 20 contacts with Thong, who claimed "lots of times" he was an ABZ member.
The gang expert testified the ABZ is a criminal street gang that claims the color blue, uses the ABZ sign, and has as primary activities the commission of auto theft, burglary, and possession of stolen property. He testified to police documentation of 15 incidents of Thongs associations with ABZ members, 15 occurrences of his display or possession of physical evidence of gang membership, and 7 instances of his claims of ABZ association or membership. Thong "claim[ed] West Side," he testified. "Its what the Asian Boyz claim, thats their territory." He testified Thong admitted the ABZ criminal street gang allegation in his taking prior and opined he was an active participant in, and a member of, the ABZ. (Peo. Exh. 1.)
Citing Pacific Gas & Electric. Co. v. Zuckerman (1987) 189 Cal.App.3d 1113 (Zuckerman), Thong argues expert testimony is not substantial evidence if based on assumptions that lack support in the record or on factors that are conjectural, remote, or speculative. (Id. at pp. 1135-1136.) Yet he suggests no plausible reason why the gang expert could not reasonably base his testimony on the observations of the vehicle owner, the arresting officer, and the gang unit detective. (See Evid. Code, § 801.) His reliance on Zuckerman is misplaced. An expert may base an opinion on any matter known to him or her, including otherwise inadmissible hearsay, on which he or she reasonably can rely. (People v. Montiel (1993) 5 Cal.4th 877, 918 (Montiel).) Specifically, a gang expert who bases an opinion on personal observations of, and discussions with, gang members, as well as on information from other officers and police department files, presents an adequate foundation for his or her opinion. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.)
To prove the element of "specific intent to promote, further, or assist in any criminal conduct by gang members," a gang expert can testify to "whether and how a crime was committed to benefit or promote a gang" but not to whether "a specific individual possessed a specific intent." (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196; People v. Killebrew (2002) 103 Cal.App.4th 644, 657; Pen. Code, § 186.22, subd. (b)(1).) The gang expert here testified that the foundations of his opinion were his review of FI cards and police reports, his formal criminal street gang training, his hundreds of contacts with suspected associates and members of the ABZ and rival gangs, and his investigations of over 100 gang crimes. On that basis, he opined that Thongs stealing cars benefited the ABZ but not that he acted with the requisite specific intent. His opinion was squarely within the scope of the proof the statute requires and the case law permits, so Thongs argument that his testimony improperly removed from the jurys consideration two elements of the criminal street gang enhancement is meritless. (See People v. Ward (2005) 36 Cal.4th 186, 209-210.)
So the issue before us is straightforward. Our limited role in a challenge to the sufficiency of the evidence in a criminal case is limited to a determination of whether, viewing the entire record in the light most favorable to the prosecution and presuming in support of the judgment every fact reasonably inferable from the evidence, a rational trier of fact could find the accused guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).) We can reverse the judgment for insufficiency of the evidence only if there is "no hypothesis whatever" on which a sufficiency of the evidence supports the judgment. (People v. Redmond (1969) 71 Cal.2d 745, 755 (Redmond).) Here, on a record showing the combination of expert testimony, documentary evidence of a prior, and testimony by percipient witnesses that the case law contemplates (Gardeley, supra, 14 Cal.4th at p. 626), Thongs argument essentially asks us to reweigh the facts. That we cannot do. (People v. Bolin (1998) 18 Cal.4th 297, 331-333 (Bolin).)
2. Insufficiency of the Evidence of Asian Boyz as Criminal Street Gang
Thong argues an insufficiency of the evidence that the ABZ "had an identifying sign or symbol," that the charged taking could be one of the two crimes necessary to establish "a pattern of criminal gang activity," and that one of the ABZs primary activities was the commission of takings. (Pen. Code, § 186.22, subds. (a), (b)(1), (e), (f).) The Attorney General argues the contrary.
With commendable candor, Thong acknowledges the law is settled that a charged crime can be one of the two crimes necessary to establish "a pattern of criminal gang activity" and he raises the issue solely to preserve his right to later review. (Pen. Code, § 186.22, subds. (e), (f); see, e.g., People v. Duran (2002) 97 Cal.App.4th 1448, 1457, citing, e.g., Gardeley, supra, at pp. 616-617; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) So we turn to the other facets of his argument.
Thong challenges the sufficiency of the evidence that the ABZ had an identifying sign or symbol. By statute, proof of "a common name or common identifying sign or symbol" is necessary to establish that an "ongoing organization, association, or group of three or more persons" is a criminal street gang. (Pen. Code, § 186.22, subd. (f); italics added.) The gang expert testified to a common name (Asian Boyz) and to a common identifying sign (ABZ) but not to a common identifying symbol. His testimony, like the statutory requirement of proof, was in the disjunctive, not the conjunctive. No failure of proof arises from that. Again, Thongs reliance on Zuckerman to challenge the gang experts testimony is misplaced. (See ante, part 1.)
Citing People v. Sengpadychith (2001) 26 Cal.4th 316 (Sengpadychith ), Thong challenges the sufficiency of the evidence of the commission of takings as one of the ABZs primary activities. By statute, a criminal street gang must have "as one of its primary activities the commission of one or more of the criminal acts" that the statute enumerates, one of which is a taking. (Pen. Code, § 186.22, subds. (e)(25), (f).) Thong acknowledges his guilty plea and admission to an ABZ criminal street gang allegation in his taking prior, a fellow gang members guilty plea and admission to an ABZ criminal street gang allegation in another ABZ taking case, and police documentation showing his and the gang members association with each other "on a number of occasions."
Additionally, the record shows that the takings that ABZ gang members commit provide not only the income to buy drugs and weapons but also the tools to commit other crimes, including the property crimes — burglaries, receivings, and takings — and the violent crimes — homicides, attempted homicides, and drive-by shootings — that are among the ABZs primary activities. Sengpadychith characterizes the statutory phrase "primary activities" as implying that the commission of statutorily enumerated crimes is a "chief" or "principal" occupation and as excluding the "occasional" commission of those crimes from the scope of the statute. (Sengpadychith, supra, 26 Cal.4th at p. 323.) Thongs argument impliedly confers talismanic significance on a pair of passing references in Sengpadychith to evidence that "might" constitute sufficient proof of "primary activities." We decline to indulge in that kind of speculation. (Cf. Bolin, supra, 18 Cal.4th at pp. 331-333; Ochoa, supra, 6 Cal.4th at p. 1206; Redmond, supra, 71 Cal.2d at p. 755.) We decline his tacit invitation to reweigh the facts. (See Bolin, supra, at pp. 331-333.)
3. Insufficiency of the Evidence without Gang Experts Testimony
On the premise that the court should have stricken the gang experts testimony as improper, Thong argues an insufficiency of the evidence of the criminal street gang crime and the criminal street gang enhancements. The Attorney General argues the contrary.
Having rejected some of Thongs challenges to the gang experts testimony, we will address only other aspects of his argument now. (See ante, parts 1 and 2.) In reliance on Gardeley, he challenges the propriety of the gang experts testimony on the ground that his testimony "did not follow the proper format of answering hypothetical questions." (Gardeley, supra, 14 Cal.4th at p. 619.) However, Gardeley approved questioning a gang expert not only on the basis of hypothetical questions but also on the basis of material of a type on which gang experts reasonably rely, even if that material is not in evidence, and emphasized the courts "considerable discretion" to control the form of questioning of a gang expert. (Gardeley, supra, at pp. 618-619.) His reliance on Gardeley is misplaced.
Additionally, Thong accuses the gang expert of "circular reasoning" by testifying that, although there was "no fact that stands out" about the crime to show that the taking necessarily benefited the gang, the commission of the taking by an active ABZ member led him to believe the crime may have been committed for the benefit of the gang. Elsewhere, however, the record shows that the gang expert testified he would not characterize a taking by an ABZ member apprehended while driving a vehicle home as benefiting the gang but would characterize a taking by an ABZ member apprehended later while driving a partially dismantled vehicle as benefiting the gang since the ABZ routinely dismantles vehicles for parts.
Thongs argument ignores our limited role in a challenge to the sufficiency of the evidence in a criminal case. Our duty is not only to view the entire record in the light most favorable to the prosecution but also to presume in support of the judgment every fact reasonably inferable from the evidence and, on that foundation, to affirm if a rational trier of fact could find the accused guilty beyond a reasonable doubt. (See Bolin, supra, 18 Cal.4th at pp. 331-333; Ochoa, supra, 6 Cal.4th at p. 1206; Redmond, supra, 71 Cal.2d at p. 755.) We reject Thongs gang expert argument in toto.
4. Confrontation Clause
Thong argues that the admission of hearsay in court records and FI cards to which the gang expert testified violated his right to confrontation. (Crawford v. Washington (2004) 541 U.S. 36 (Crawford)). The Attorney General argues that Thong forfeited his right to appellate review and that the evidence at issue is not within the scope of Crawford. In the interest of judicial efficiency, we will assume arguendo that Thong did not forfeit his right to appellate review and will turn to his confrontation clause argument.
With reference to the court records aspect of his argument, Thong acknowledges that the public records exception to the hearsay rule authorizes the admission of evidence of public records to prove acts, conditions, or events but argues that the admission of court records of his 2003 guilty plea to a taking and admission of a criminal street gang allegation and of another gang members 2001 guilty plea to a taking and admission of a criminal street gang allegation nonetheless are within the scope of Crawford. (Peo. Exh. 1, 8; see Evid. Code, § 1280.) Those are non-testimonial records not subject to Crawfords confrontation and cross-examination requirements. (People v. Taulton (2005) 129 Cal.App.4th 1218, 1221-1225.)
Evidence Code section 1280: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
With reference to the FI cards component of his argument, case law is settled that FI cards are police reports on which a gang expert can rely to form his or her opinion and which are admissible under the public records exception to the hearsay rule. (Lake v. Reed (1997) 16 Cal.4th 448, 461; People v. Ruiz (1998) 62 Cal.App.4th 234, 241; see Evid. Code, §§ 801, 1280.) FI cards "are examined to assess the weight of the experts opinion" but "are not elicited for the truth of their contents" and, like other materials on which a gang expert can base his or her opinion, are not within the scope of Crawford. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1208-1210.)
In short, the confrontation clause "`does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (People v. Thomas, supra, 130 Cal.App.4th at p. 1210, quoting Crawford, supra, 541 U.S. at p. 59, fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414.) We reject Thongs argument.
5. Field Identification Cards
On the issue of whether he was a criminal street gang member, Thong argues that the admission in evidence of FI cards from his sealed juvenile adjudication prejudiced him. The Attorney General argues the contrary.
The sole statutory authority for Thongs argument provides that if and only if a juvenile or his or her probation officer petitions the juvenile court to seal his or her records, and that if and only if the juvenile court holds a hearing, finds that the juvenile has no convictions "of a felony or of any misdemeanor involving moral turpitude," and finds that the juvenile has attained rehabilitation "to the satisfaction of the court," then and only then the juvenile court "shall order all records, papers, and exhibits in the persons case in the custody of the juvenile court sealed, including the juvenile court record, minute book entries, and entries on dockets, and any other records relating to the case in the custody of the other agencies and officials as are named in the order." (Welf. & Inst. Code, § 781, subd. (a).)
At pretrial conference, Thong made a motion to exclude, as too old to be relevant, evidence from FI cards of his admissions of gang affiliation, but the court found not only "consistency in the statements" but also no "intervening denials of membership" and denied the motion on those grounds. Thong asked if those records were part of his juvenile case; the prosecutor replied in the negative, saying the gang expert relied on otherwise inadmissible evidence from FI cards that did not come from his juvenile case; and the court found nothing objectionable in the prosecutors offer of proof so long as the FI cards were redacted.
Acknowledging that the FI cards were redacted, Thong cites to nothing in the record to show that he or his probation officer ever petitioned the juvenile court to seal the records from his juvenile case, that the juvenile court ever ordered those records sealed, or that the FI cards he now challenges were ever part of his juvenile case. "One asserting prejudice has the burden of proving it; a bald assertion of prejudice is not sufficient." (People v. Johnson (1988) 47 Cal.3d 576, 591, abrogated on another ground by People v. Reyes (1998) 19 Cal.4th 743, 752-754, and Samson v. California (2006) 547 U.S. __, __ [165 L.Ed.2d 250, 262; 126 S.Ct. 2193, 2202], as stated in People v. Hunter (2006) 140 Cal.App.4th 1147, 1153.) Thong fails to satisfy his burden.
6. Admission of Identical Prior
Thong argues that the admission of a prior identical to one of the charged crimes constituted an abuse of discretion and a violation of due process. The Attorney General argues the contrary.
At pretrial conference, Thong made a motion to exclude evidence of his prior — a guilty plea to a taking with an admission of an ABZ criminal street gang enhancement — as "highly prejudicial" since the prior and one of the charged crimes were "exactly the same charge with exactly the same enhancement." Here, the parties tacitly agree, and we concur, that even though Thong did not cite Evidence Code section 352 his motion fairly apprised the court of the issue, entitling him to argue both abuse of discretion and violation of due process on appeal. (See People v. Partida, supra, 37 Cal.4th at pp. 433-436.)
The prosecutor opposed Thongs motion on the grounds that the gang expert was to testify to "not only a pattern of criminality" but also to the gangs "primary activities" and that both the prior and one of the charged crimes showed "the type of crimes that this particular gang commits." Noting that the prior could neither "be sanitized in any fashion" nor used in any way other than "the specific conviction, the specific charge, and the specific enhancement," the court denied the motion.
On that record, Thong argues that a prior is admissible only if its probative value outweighs its prejudicial effect, that "probative" means not only "material" and "relevant" but also "necessary," and that there is "absolutely no showing" of necessity in the record since the prosecutor could have used another gang members prior instead of his prior. (See People v. Alcala (1984) 36 Cal.3d 604, 632 (Alcala), implicitly abrogated by statute on another ground as stated in People v. Falsetta (1999) 21Cal.4th 903, 911; People v. Thompson (1980) 27 Cal.3d 303, 318, fn. 20 (Thompson), disapproved on another ground in People v. Williams (1988) 44 Cal.3d 883, 907, fn. 7, as stated in People v. Rowland (1992) 4 Cal.4th 238, 260.) We disagree with the novel premise inherent in Thongs argument that his prior and the other gang members prior were fungible. He cites no authority for that premise.
In argument to the jury, the prosecutor linked the criminal street gang enhancement in the charged crime to the criminal street gang enhancement in the prior: "He already pled guilty to that." No doubt to avoid drawing the jurys attention to the prosecutors comment, Thongs attorney did not object. Instead, he emphasized in his own argument to the jury that both the charged taking with an ABZ criminal street gang enhancement and the prior taking with an ABZ criminal street gang enhancement occurred "without another gang member being present." "How does that make that gang activity?," he asked. Drawing analogies to Joe DiMaggio, who "claimed North Beach," and Will Rogers, who "claimed Oklahoma," he argued that a "young Asian boy" like Thong, who "claimed West Side," used the word "claimed" not as a police "term of art" but as a way to "stick together" with other young Asian boys to "deal with a certain amount of prejudice" as "almost every immigrant group thats come to this country" has.
After the adept argument of Thongs attorney, the court carefully cautioned the jury to decide whether he was guilty of the charged crimes before considering the evidence of his taking prior with an ABZ criminal street gang enhancement and to consider that evidence neither as proof of his guilt of the charged crimes nor as proof of bad character or disposition to commit crimes. (CALJIC Nos. 2.50, 17.18, 17.25.) Jurors are presumed able to correlate, follow, and understand the courts instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Nothing in the record here even intimates the contrary.
The prejudice Evidence Code section 352 seeks to avoid is not the prejudice or the damage to a defense that naturally flows from highly probative evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.) To the contrary, "the statute uses the word in its etymological sense of `prejudging a person or cause on the basis of extraneous factors." (People v. Farmer (1989) 47 Cal.3d 888, 912, overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The prior at issue here did not prejudge Thong in that way. By the abuse of discretion standard of review, we cannot disturb the courts ruling unless the admission of his prior "`falls outside the bounds of reason." (People v. Kipp (1998) 18 Cal.4th 349, 371, citing People v. Ewoldt (1994) 7 Cal.4th 380, 405; People v. De Santis (1992) 2 Cal.4th 1198, 1226.) On the record here, the courts ruling falls well within those bounds. We likewise reject his due process argument since abuse of discretion is the premise implicit in that argument. (Cf. People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.)
7. Criminal Street Gang Crime as Lesser Included Offense
On the premise that the criminal street gang crime is a lesser included offense of the taking and the receiving with the criminal street gang enhancements, Thong argues that his sentence on the criminal street gang crime must be stricken. The Attorney General argues the contrary.
The United States Supreme Court characterizes a "sentence enhancement" as "the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict." (Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19 (Apprendi); cf. People v. Seel (2004) 34 Cal.4th 535, 539, fn. 2, citing Sengpadychith, supra, 26 Cal.4th at p. 326.) The law is settled in California that "enhancement allegations are not to be considered in determining lesser included offenses" (People v. Toro (1989) 47 Cal.3d 966, 972, citing People v. Wolcott (1983) 34 Cal.3d 92, 101), that the sole test of a lesser included offense is whether "the statutory elements of the greater offense include all of the statutory elements of the lesser offense" (People v. Reed (2006) 38 Cal.4th 1224, 1227), that "if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former" (People v. Lopez (1998) 19 Cal.4th 282, 288), and that convictions of both a greater crime and a lesser included offense require reversal of the conviction of the latter if substantial evidence of both is in the record (People v. Moran (1970) 1 Cal.3d 755, 763; People v. Pearson (1986) 42 Cal.3d 351, 355).
In People v. Guian (1998) 18 Cal.4th 558, 568, fn. 3, the Supreme Court disapproved dictum on another point in Toro.
The statutory elements of the criminal street gang crime and the criminal street gang enhancement are disparate. The criminal street gang crime requires proof of active participation "in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity." (Pen. Code, § 186.22, subd. (a); italics added.) The criminal street gang enhancement requires proof of commission of a felony "for the benefit of, at the direction of, or in association with any criminal street gang." (Pen. Code, § 186.22, subd. (b)(1).) The criminal street gang crime requires proof of two elements — active participation in a criminal street gang and knowledge of a pattern of criminal gang activity by the members — that are not part of the criminal street gang enhancement. (People v. Bautista (2005) 125 Cal.App.4th 646, 656, fn. 5; People v. Herrera (1999) 70 Cal.App.4th 1456, 1467 & fns. 11, 12.) "[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former." (People v. Lopez, supra, 19 Cal.4th at p. 288.) The test of whether the latter is necessarily included in the former is whether "the statutory elements of the greater offense include all of the statutory elements of the lesser offense." (People v. Reed, supra, 38 Cal.4th at p. 1227.) Thongs argument founders on the test of the criminal street gang crime and the criminal street gang enhancement, so no analysis of either the taking or the receiving is necessary.
8. Cumulative Error
Thong argues cumulative error. The Attorney General argues the contrary. Our review of the record shows no error. (See People v. Bradford (1997) 15 Cal.4th 1229, 1344.) "A defendant is entitled to a fair trial but not a perfect one." (Lutwak v. United States (1953) 344 U.S. 604, 619.) Thong received a fair trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Harris, Acting P.J.
Levy, J.