Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF014876. F. Paul Dickerson III, Judge.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lynne McGinnis, and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Introduction
Alleging insufficiency of the evidence and prosecutorial misconduct, defendant Bernardo Torres challenges the gang enhancements to his convictions for burglary and aggravated assault. We will affirm.
Facts and Procedural history
In 2005, the M. family — Mark, Claudia, and their four children — lived in a ground-floor unit of the Temecula Gardens apartment complex. The children had grown up in San Diego and were Padres and Chargers fans. Defendant, known as “Vago,” lived at the property too. One day in October eight-year-old A. wore a “San Diego” jersey to school. When he returned home that afternoon he was nervous and scared and asked for his asthma pump. His mother asked why, and the child told her that defendant had said, “Fuck San Diego. This is Old Towne.”
About 6:00 p.m. on December 31 a 14-year-old friend of one of the M. children came to have New Year’s Eve dinner and spend the evening. The friend, G., was wearing a San Diego Padres shirt and hat. Claudia had just gotten out of the shower and Mark was taking a nap in the bedroom when A. came to tell her that Vago was at the front door. Claudia got dressed and went to ask defendant what he wanted. Defendant answered that he did not want to talk to her, but to “the kid,” pointing to G. When Claudia told him to leave and that she was not going to let any of the children go outside, defendant put his foot over the threshold and blocked the door so she could not close it. As defendant walked away Claudia heard him repeating, “Fuck San Diego. This is my neighborhood. Old Towne Trece.”
Shortly afterward Claudia heard her 10-year-old daughter screaming, “Mommy, Daddy, he’s coming. He’s breaking in the window. He’s cutting the screen with a knife.” Mark also heard his daughter’s screaming and both parents moved to close the windows: Claudia went to the bedroom and Mark to the living room. As Mark tried to shut the living room window, defendant leaned in and stabbed his right forearm with a knife. The resulting gash was about four inches long and half an inch deep and it required nine stitches. At the time, Mark had a lot of pain from the stab wound; six months later he still had numbness and muscle stiffness in the injured arm.
It took four law enforcement officers to subdue defendant after the incident. In his pocket, they found a serrated knife with blood on it. Defendant first told the officers that he had stabbed the victim because, “They threatened my sister.” Later he said, “It wasn’t because of my sister. It was because he’s from San Diego and I hang out with Old Towne Trece.” Defendant denied being a member of the gang.
On March 1, 2006, defendant was charged by information with residential burglary (Pen. Code, § 459; count 1), and assault with a knife (§ 245, subd. (a)(1); count 2). As to count 1, the information alleged that defendant personally used a deadly weapon, a knife, in the commission of the burglary (§§ 12022, subd. (b)(1) & 1192.7, subd. (c)(23)); as to count 2, it alleged that he personally inflicted great bodily injury upon the victim (§§ 12022.7, subd. (a) & 1192.7, subd. (c)(8)). As to both counts, the information alleged that defendant committed the offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
In addition to Claudia and Mark M., Riverside County Sheriff’s Deputies Orlando Castaneda and Richard Donoho testified at defendant’s trial. Castaneda testified to his encounter with “Periko,” an Old Towne Trece gang member he met walking away from the scene. Donoho identified Periko as Ernesto Mora, an Old Towne Trece member who lived at the apartment complex.
Castaneda and Donoho separately identified Periko from People’s exhibit 26, a photograph of several Old Towne Trece gang members. In the photograph, Periko was throwing the gang’s hand signs.
Donoho had been with the gang unit in Temecula since 2004 and, besides background training in gang-related crimes, had also had experience working with gang members in jail. His current job involved dealing with gang members on a daily basis. He kept track of their activities and entered identifying information — monikers, tattoos, social security numbers, and gang membership — on sheriff’s department field identification cards and in a state-wide database. He also investigated gang-related crimes, speaking to witnesses and victims.
Donoho was familiar with the Old Towne Trece gang and its history. Old Towne Trece was formed in the late 1990’s from remnants of the Temecula Locos, a gang from the mid-1990’s that had largely disbanded after some of its members left the area. In 2000, some Old Towne Trece adult members were sent to prison and activities among the remaining “young Hispanic kids” decreased as the gang “lay low for a little bit.” The gang’s identifying symbols include the letters O and T, and the numbers 1520 and 13. The gang has special hand signs for O and T. As of December 2005, the gang’s primary activities consisted of vehicle thefts, drug sales, assaults, graffiti, “and stuff of that nature.” From photographs and certified court documents admitted into evidence, Donoho identified two incarcerated gang members personally known to him: Victor Bedolla (“Conejo”) and Marcos Mendoza (“Beater”). Bedolla had been convicted of assault for the benefit of a gang and Mendoza of methamphetamine possession for sale. In a photograph that included defendant, Donoho also identified Old Towne Trece gang members Steven Cortez (“Little Wicked”) and Arturo Ramos (“Blacky”).
Being an Old Towne Trece gang member, Donoho testified, included stopping “disrespect” from any person in the gang’s territory. To stop disrespect, a gang member might need to assault the person to send a message that Temecula is “run by Old Towne Trece.” Anyone coming into Temecula from San Diego could be perceived as “disrespecting” Old Towne Trece. A gang member who assaulted such a person would be thought of more highly by other gang members and would be benefiting the gang by demonstrating that “you’re taking care of business. You’re not waiting around to see what they do to disrespect you. They might be disrespecting you by just coming in. And if they’re a gang member or not, you’re gonna take that disrespect and squash it.”
In Donoho’s opinion, defendant was a member of the Old Towne Trece gang. His moniker “Vago” was part of a list of Old Towne Trece gang members Donoho had personally found on a 30- to 40-foot wall of graffiti on Pujol Street. Defendant also had “O.T.” and “13” and “South Side” tattooed on his chest and hands. At the time of his arrest defendant told Donoho that he had joined Old Towne Trece eight months earlier for protection from San Diego gangs.
On June 12, 2006, a jury found defendant guilty of both charges and found all the allegations true. On July 7, the court sentenced him to 15 years in state prison: the midterm of four years on count 1, plus one year for the personal use of a deadly weapon enhancement, plus 10 years for the gang enhancement. On count 2, the court sentenced defendant to the midterm of three years, plus three years for the great bodily injury enhancement, plus five years for the gang enhancement. Pursuant to section 654, the sentence on count 2 was stayed.
Discussion
Defendant’s first argument is that there was insufficient evidence to support the gang enhancements because Deputy Donoho’s opinion that Old Towne Trece’s primary activities consisted of crimes listed in section 186.22 was unsupported by the facts in evidence. We disagree.
Standard of Review
When a criminal defendant contends the evidence was insufficient to support his conviction, the reviewing court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) We examine the entire record to determine whether it discloses substantial evidence, in the light most favorable to the judgment below and we presume every fact the lower court could reasonably deduce from the evidence in support of its judgment. (People v. Killebrew (2002) 103 Cal.App.4th 644, 660.) Substantial evidence must be reasonable, credible, and of solid value. (Ibid.)
Gang Enhancements and Expert Testimony
Section 186.22, subdivision (b)(1) provides: “[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished [by an additional term.]” If the felony is a violent felony as defined in subdivision (c) of section 667.5, the additional term is 10 years. (§ 186.22, subd. (b)(1)(C).) The infliction of great bodily injury on a person other than an accomplice is a violent felony. (§ 667.5, subd. (c)(8).)
Subdivision (f) of section 186.22 defines a criminal street gang: “As used in this chapter, ‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in . . . subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” Among the 33 relevant crimes listed in subdivision (e) are assault with a deadly weapon; possession, transportation or sale of controlled substances; burglary; felony vandalism; and carrying a concealed firearm. (§ 186.22, subds. (e)(1), (e)(4), (e)(11), (e)(20) & (e)(32).) Evidence of either past or present commission of one or more of the statutorily enumerated crimes by gang members is relevant in determining the group’s primary activities. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) The crimes establishing a pattern of behavior within the meaning of section 186.22, subdivision (f) need not be gang related. (People v. Gardeley (1996) 14 Cal.4th 605, 621-622.)
Expert testimony regarding gang behavior is permissible because the subject matter is sufficiently beyond common experience that such testimony can assist the trier of fact. (Evid. Code, § 801; People v. Olguin, supra, 31 Cal.App.4th at p. 1371.) An expert’s opinion may be based on facts of a type reasonably relied upon by an expert in forming an opinion even if those facts would not ordinarily be admissible in evidence. (Evid. Code, § 801.) However, an expert’s opinion is no better than the facts upon which it is based. (People v. Gardeley, supra, 14 Cal.4th at p. 618.)
Here there was substantial evidence, based upon facts reasonably relied upon by an expert with his background and experience, to support Deputy Donoho’s opinion and the jury’s conclusion that Old Towne Trece was a criminal street gang within the meaning of the statute and that defendant was a member of the gang. As a member of the gang unit, Donoho knew the history and characteristics of the Old Towne Trece gang and was personally familiar with several of its members. He also knew of gang members’ commission of specific criminal acts enumerated in section 186.22, subdivision (e): vehicle theft, drug possession and sales, assaults, and graffiti. While the deputy did not testify about vehicle thefts, he did recognize and identify Old Towne Trece members Bedolla and Mendoza as having been convicted, respectively, of assault for the benefit of a gang and possession of methamphetamine for sale. (Pen. Code, §§ 245, subd. (a)(1), 186.22, subd. (e)(1); Health & Saf. Code, § 11378.) In addition, Donoho had personally found and photographed the Old Towne Trece graffiti on Pujol Street, graffiti that included defendant’s moniker.
Defendant attempts, in vain, to rely upon In re Alexander L. (2007) 149 Cal.App.4th 605. The court in In re Alexander L. reversed a gang enhancement because the expert in that case testified only in a general way that the gang had been involved in certain crimes: “No specifics were elicited as to the circumstances of these crimes, or where, when, or how [the expert] had obtained the information.” (Id. at pp. 611-612.) Here, as we have noted, Donoho testified to his personal acquaintance with specific gang members and their convictions. Moreover, as the Attorney General points out, the prosecution could have relied upon defendant’s current convictions for burglary and assault with a knife as the additional crimes needed to establish the gang’s primary activity. (People v. Sengpadychith, supra, 26 Cal.4th at p. 323.)
Prosecutorial misconduct
Defendant’s second complaint is that some of the prosecutor’s comments during closing argument amounted to reversible error. Again, we disagree.
To preserve a claim of prosecutorial misconduct during argument, a defendant must object and seek a jury admonition at the time the alleged misconduct occurs. (People v. Bonilla (2007) 41 Cal.4th 313, 336.) “‘“[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. . . .”’ [Citation.]” (People v. Ward (2005) 36 Cal.4th 186, 215.)
Some of defendant’s claims were waived by failure to object; others amounted to no more than permissible comments and reasonable inferences drawn from the evidence. (People v. Bonilla, supra, 41 Cal.4th at p. 334.) In the first half of his closing, the prosecutor argued that defendant had repeatedly manifested his Old Towne Trece identity by words and conduct, including his “Fuck San Diego” remark to eight-year-old A. “That’s what he—that is what he is doing on a day-to-day basis as evidenced by the crimes and acts you’ve seen in this case. . . . [¶] . . . This is typical of what goes on out there.” Defendant did not object to the prosecutor’s statement at the time it was made, and his claim that it was improper is forfeited. (People v. Bonilla, supra, at p. 336.)
Moreover, the jury could reasonably have inferred that defendant’s crimes were in fact typical of his and his gang’s ongoing pattern of similar conduct. Regarding the gang, jurors had heard from Deputy Donoho about Old Towne Trece’s territorial claims in Temecula; they had heard about gang members’ habit of challenging people they perceived as outsiders; they had heard evidence of other specific gang-related crimes, including assault. Regarding defendant, jurors had heard that he was part of the gang and that he had made gang-like remarks to eight-year-old A. on an earlier occasion.
Defendant also objects to the prosecutor’s response to defense counsel’s remark characterizing Mark M. as the “so-called victim of this case.” During rebuttal the prosecutor commented, “I wonder sometimes if—if we’re sitting here listening to the same case. This case is clearly what it purports to be. This is gang violence perpetrated by a gang member against members of society. You have—and everything is fine and dandy making an argument until you call somebody like [Mark M.] a so-called victim. He’s a so-called victim? He is a victim of gang violence like everybody else that lives in that area that’s victimized [on a] day-to-day basis.” At this point, defense counsel objected: “Counsel is testifying. Assumes facts not in evidence regarding other people or day-to-day basis,” and the court, correctly, overruled the objection. The prosecutor’s statement fell within the “wide latitude” permitted him, especially as it was defense counsel who had brought up the question of whether Mark M. was truly a victim. And as explained above, the jury could well have inferred from Deputy Donoho’s testimony about the specifics of defendant’s conduct and that of his fellow gang members that there was ongoing gang activity against the citizens of the community of Temecula.
In sum, there was substantial evidence to support the jury’s finding that Old Towne Trece was a criminal street gang within the meaning of section 186.22 and there was no misconduct in the prosecutor’s closing argument.
Disposition
The judgment is affirmed.
We concur: McKINSTER, J., GAUT, J.