Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County, Super. Ct. No. 1092533, Super. Ct. No. 1092534, Super. Ct. Nos. 1092532 & 1095865, Nancy E. Ashley, Judge.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant Jose Alexander Torres.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant Willie Wildmer Torres.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant Lawrence Mejia.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Stephen G. Herndon and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, J.
STATEMENT OF THE CASE
On May 12, 2006, a second amended information was filed in the Superior Court of Stanislaus County charging appellants/codefendants Jose Alexander Torres (Jose), Willie Wildmer Torres (Willie), and Lawrence Mejia (Lawrence) with the following offenses.
In counts I through IV, robbery (Pen. Code, § 211) only as to Jose and Lawrence; count V, robbery as to Jose, Willie, and Lawrence; count VI, felon in possession of a gun only as to Jose; and count VII, participation in a criminal street gang (§ 186.22, subd. (a)) as to Jose, Willie, and Lawrence. As to counts I through VI, it was alleged the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). As to counts I through V, it was alleged a principal was armed with a firearm (§ 12022.53, subds. (b) & (e)(1)). There were also allegations of personal use of a firearm pursuant to section 12022.5, subdivision (a) as to Jose in counts I and IV, Lawrence in count II, and Jose and Lawrence in counts III, V, and VII. It was further alleged Willie served three prior prison terms (§ 667.5, subd. (b)). Appellants pleaded not guilty and denied the special allegations. Thereafter, their joint jury trial began.
All further statutory citations are to the Penal Code unless otherwise indicated.
On June 7, 2006, the jury found the appellants guilty as charged in counts I, II, III, V, and VI, and found the attached special allegations true. As to count IV, robbery by Jose and Lawrence, the jury could not reach verdicts. As to count VII, participation in a criminal street gang, the jury found Jose and Lawrence guilty, and could not reach a verdict as to Willie. The court declared a mistrial on counts IV (Jose and Lawrence) and VII (Willie) and the prosecution did not seek retrial on those charges.
On June 14, 2006, Willie admitted a prior prison term enhancement and the court found the other enhancements were not supported by the evidence.
On July 19, 2006, Jose was sentenced to an aggregate term of 42 years eight months, and Lawrence was sentenced to 42 years eight months. On July 20, 2006, Willie was sentenced to 14 years.
On July 28, August 15, and September 20, 2006, Jose, Willie, and Lawrence, respectively, filed timely notices of appeal. These cases have been consolidated for purposes of appeal.
FACTS
Appellants Jose Torres, his brother Willie Wildmer Torres, and their associate Lawrence Mejia, were convicted of multiple felonies based on a string of armed robberies committed at four convenience stores in Stanislaus County. The evidence established that Jose and Lawrence entered the stores and committed the robberies, and that Willie acted as the getaway driver for the final charged offense. The jury also found the gang enhancements true, that the robberies were committed for the benefit of a criminal street gang, the Nortenos.
On appeal, appellants challenge the admissibility of Lawrence’s postarrest statements, whether the jury was properly instructed about those statements and the gang allegations, the admissibility of the expert opinions on robberies and gangs, the sufficiency of the evidence as to the gang allegations, and the imposition of probation report preparation fees. We will strike the probation report preparation fee as to Willie, order the abstract of judgment corrected as to Lawrence, and otherwise affirm.
Count I: Riverbank AM/PM Store
Around 11:40 p.m. on May 22, 2005, Susan Butler was working as the cashier at the AM/PM convenience store on Oakdale and Patterson in Riverbank. She had removed the cash register drawers and placed them on the counter to count the cash, when two men entered the store. One man was larger and heavier than the other. The larger man walked to the beer cabinet and removed two or three 12-packs of Corona beer. The smaller man was wearing a hat and holding a gun. The gun was a “silverish” pistol. The gunman went to the counter and told Butler, “‘This is a robbery, and it ain’t no joke.’” Butler complied and gave him the money. The gunman asked for a carton of Marlboros. Butler again complied. The larger man arrived at the counter and said, “‘Give me all of your Camels.’” Butler was about to hand over the cigarettes but the gunman said, “‘No. Come on. Let’s go.’” The two men left together. They were not wearing any red clothing or did not make any gang statements or signs.
Robert Stokes and his son drove into the store’s parking lot and saw two Hispanic men run out of the store. One man was larger than the other, and carried four cases of beer. Stokes remarked to that man, “I’d like to go to a party, too.” Stokes testified the smaller man stuck a gun in his face and “told me I’m not F’ing following him anyplace.” The men ran in front of the Stokes’s car, the smaller man aimed the gun at Stokes and his son, and the smaller man warned, “‘Don’t follow me, mother fucker.’” The larger man threw the four cases of beer into the back of an older model Chevrolet pickup truck, and Stokes believed the beer bottles broke when they landed into the truck bed. The two men got into the truck and the vehicle quickly left the scene.
Stokes and his son went into the store and found Butler standing at the counter and on the telephone. The cash register drawers were on the counter, and they asked Butler if she was okay. Butler was scared, upset, and crying, and said she had just been robbed.
Stanislaus County Deputy Sheriff Ross Bays responded to the robbery dispatch and found the empty cash drawers on the counter. A criminalist took fingerprints off the drawers but the prints were not matched to anyone. Deputy Bays interviewed Stokes and his son, and they said the smaller man had a small silver or chrome semi-automatic handgun. Butler said both suspects were Hispanic males in their 20’s. The gunman held the silver semi-automatic gun, and he was about five feet four inches tall, 160 to 170 pounds, had a thin mustache, wore a tank top, and had tattoos all over his forearms. The larger man, who walked out with the beer cases, was five feet nine inches tall and 200 pounds.
Deputy Bays also retrieved the store’s surveillance videotape, which depicted two men entering the store, one man going to the back wall and taking beer, the other man pointing a gun at the clerk, the clerk emptying the cash drawers, and both men leaving the store. Deputy Bays put out a “be-on-the-lookout” warning for two Hispanic males in a 1960’s white Chevrolet pickup truck.
A few days after the robbery, Detective Priscilla Woods joined the investigation because she knew about similar convenience store robberies in Modesto and Stanislaus County. Detective Woods contacted Detective Brocchini, who was investigating the other robberies, obtained photographs of the suspects and the vehicle used in those other robberies, and compared them with suspects depicted in the Riverbank AM/PM store’s surveillance videotape. Woods determined one of the suspects from the other robberies (later determined to be Lawrence), looked similar to one of the men at the Riverbank AM/PM store, because he was wearing the same clothes, had the same weight, height, hair style and color, eyes and face, and was wearing a belt buckle with “N” on it.
Detective Woods presented a photographic lineup to Robert Stokes, which included a picture of Lawrence. Stokes could not identify any suspect. Woods also showed Stokes a photograph of the vehicle used in the other robberies. Stokes immediately identified the vehicle as the same white truck he saw the suspects enter in the AM/PM parking lot.
Based on this incident, Jose and Lawrence were charged with count I, robbery. At trial, Butler identified Jose as the smaller suspect with the gun. Butler testified she believed Lawrence looked like the larger man who took the beer, but she did not look that man in the face and instead focused on the gunman’s face. Butler was never shown a photographic lineup with Jose’s picture, and she was unable to identify anyone from a lineup with Lawrence’s picture.
At trial, Robert Stokes positively identified Jose as the smaller man with the gun. Stokes’s son testified he could “possibly” recognize the men again but did not identify anyone at trial. Also at trial, Stokes’s son was shown a photograph of a truck driven by Willie Torres when he was arrested a few days later. He was certain he recognized the white Chevrolet truck depicted in the photograph, as the same vehicle the suspects used in the parking lot, because “I’m very good with vehicles and descriptions of vehicles and stuff. Looking at this truck, it’s the same truck [as the one in the AM/PM parking lot].” Robert Stokes also identified the truck as the same one in the store’s parking lot. The convenience store’s surveillance tape, which depicted the robbery, was played for the jury.
Jose and Lawrence were convicted of count I, robbery, with findings as to both appellants that a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)); they committed the offense for the benefit of a criminal street gang; and that Jose personally used a firearm (§ 12022.5, subd. (a)).
Count II: Modesto Stop-and-Save
Around midnight on May 23, 2005, about 30 minutes after the Riverbank AM/PM robbery, Adrian Niave was working as one of the clerks at Stop-and-Save store on Yosemite Boulevard in Modesto when a man entered and tried to buy cigarettes from the other clerk. The clerk refused to sell the cigarettes because the man did not have valid identification. The man left and then returned a minute later, and held a small chrome pistol in his left hand. The man pointed the gun at Niave and ordered him to put money into a bag. The gunman was wearing a black T-shirt and jean shorts. Niave complied and emptied the register. The gunman then demanded, “Down there, too,” referring to the safe below the counter. Niave grabbed a handful of coins from the safe and threw them in the bag.
Niave testified the gunman had a tattoo of the letter “B” on the side of his neck. Niave noticed another man was standing by the door, with a red bandana or “rag” covering the lower portion of his face, and wearing blue jeans. Niave gave the money to the gunman, he headed for the door, the other man held open the door, and they both left. Niave thought they got into a gray Jeep Cherokee.
Based on this incident, Jose and Lawrence were charged with count II, robbery. Niave identified Lawrence as the gunman at the preliminary hearing and the trial. Niave was unable to identify the second suspect because his face was covered by the red rag. At trial, Detective Brocchini reviewed the store’s surveillance tape and noted that the second suspect in the Stop-and-Save robbery was wearing the exact same hat, shirt, and long shorts as worn by the suspect later identified as Jose, during the first burglary at the Riverbank AM/PM store, which occurred just 30 minutes earlier. Brocchini also noted that during the Riverbank AM/PM burglary, Jose had a red bandana knotted around his neck, and that bandana was similar to the red rag which covered the second suspect’s face at the Stop-and-Save robbery.
Jose and Lawrence were convicted of count II, robbery, with findings as to both appellants that a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)); and they committed the offense for the benefit of a criminal street gang; and that Lawrence personally used a firearm (§ 12022.5, subd. (a)).
Counts III & IV: North Carpenter Quick-Stop
Around 3:00 a.m. on May 25, 2005, Youbert Mazloumi was working at the Quick Stop store he owned, located on North Carpenter Road and Kansas Street in Modesto. He was training a new employee in the back of the store when the front bell chimed. The new employee went to the front of the store, saw a man wearing a mask, and tried to hide in the store. Mazloumi looked out and saw two masked men. Both men were holding guns. The shorter man waved his gun, ordered Mazloumi to come out, and demanded money. Mazloumi went to the register, opened it, put the drawer on the counter, and both men took the money (count III). The shorter gunman also demanded Mazloumi’s own money, and he emptied his pockets and gave his money to the gunman (count IV).
Mazloumi was unavailable at trial, and his preliminary hearing testimony was read to the jury.
Mazloumi testified both men were standing next to each other at the counter when they took the money from the register and his pockets. The shorter man wore a baseball cap and had a red bandana on his face as a mask, which covered his nose and mouth. Mazloumi could see the shorter man’s eyes and part of his neck, and noticed an “A” tattooed on his neck. The taller man was wearing a multi-colored Halloween mask which completely covered his face. The men did not take any merchandise and left with the money.
Mazloumi was unable to identify anyone as the robbery suspects. However, Mazloumi was later shown a mask which had been recovered when Lawrence was arrested, and identified the mask as the one used in the robbery.
Around 3:04 a.m., Officer Paul MacDonald responded to Mazloumi’s store, conducted an investigation, and obtained the store’s surveillance videotape. The videotape was played for the jury.
Based on this incident, Jose and Lawrence were charged with count III, robbery from Mazloumi at the Quick Stop, and count IV, robbery of Mazloumi’s personal money. Detective Brocchini testified the store’s surveillance tape depicted a suspect wearing the same hat and red bandana that Jose wore in the Riverbank AM/PM and Stop-and-Save robberies.
Jose and Lawrence were convicted of count III, robbery of the Quick Stop, with findings as to both appellants that a principal used a firearm, the offense was committed for the benefit of a gang, and they personally used a firearm. The jury was unable to reach verdicts as to both Jose and Lawrence for count IV, robbery of Mazloumi, a mistrial was declared, and the charges were subsequently dismissed.
Count V: Standiford AM/PM store
The last robbery charged in this case occurred around 3:20 a.m. on May 25, 2005, just 20 minutes after the Quick Stop robbery. James Wisler was working at the AM/PM store on Standiford and Prescott in Modesto when two men entered the store. One man went to the cooler in the back of the store. The other man had a red bandana tied around his neck; it did not cover his face. This man held a revolver at Wisler and demanded money. Wisler emptied the cash register and gave the money to the gunman. The gunman asked for money from the other register and Wisler complied. The other man, who was larger than the gunman, took two cartons of Camel cigarettes. Wisler testified both men had tattoos, and the man who took the cigarettes had a tattoo of a yellow bumble bee ready to sting.
Kara Franklyn had just purchased gasoline at the AM/PM and went inside to get her receipt. When she entered the store, she saw two men at the counter facing the clerk. She realized one man was holding a shiny silver gun. She noticed a tattoo on the back of the gunman’s neck that was partially covered, and appeared to be “half a sun or something like a C.” The gunman wore a red bandana and a baseball cap with a black and white swirly design on it. Franklyn described the gunman as the smaller of the two suspects. The other suspect was taller and larger than the gunman, and he was gathering things in his arms. The cash register drawer was open, and Franklyn saw Wisler place the money in the gunman’s bag. She also saw money in the larger man’s hand. The larger man hit the smaller man on the shoulder and said, “‘Let’s go.’” Both men ran out of the store and went around the corner.
Based on this incident, Jose and Lawrence were charged with count V, robbery. At trial, Franklyn identified Jose as the gunman, and testified she immediately recognized him when she attended a prior court hearing, even though there were other people in the courtroom on that occasion. Wisler identified Jose as the gunman and Lawrence as his accomplice. Detective Brocchini testified the store’s surveillance tape revealed one suspect was wearing the same hat and red bandana which Jose wore in the prior robberies. As we will discuss post, Willie was subsequently apprehended as the getaway driver.
Jose, Lawrence, and Willie were convicted of count V, robbery, with findings as to all appellants that a principal personally used a firearm and they committed the offense for the benefit of a criminal street gang; and both Jose and Lawrence personally used a firearm.
Apprehension of Lawrence Mejia
Appellants were apprehended in separate encounters with the police shortly after the robbery of the Standiford AM/PM store.
Around 3:23 a.m. on May 25, 2005, Officers Gutierrez and Yokom were driving on Prescott in a marked patrol car. They were responding to a burglary alarm at a school when they drove by the Standiford AM/PM store. They noticed a suspicious white older-model Chevrolet GMC pickup truck parked near the store, with the lights flickering. Officer Gutierrez knew about the convenience store robberies and realized the white truck was parked northbound, facing away from the store. He performed a U-turn, turned off all the lights on his patrol car, cruised by the white truck, and watched it. The driver was the only occupant of the white truck.
After observing the truck for a few minutes, the officers decided to continue to their original burglary dispatch and turned back on Prescott, but the truck pulled away and performed an illegal U-turn in front of the patrol car. Officer Gutierrez trained the patrol car’s spotlight on the white truck as it passed in the opposite direction, and only saw the driver inside.
Shortly afterward, Officers Gutierrez and Yokom received a dispatch of a robbery alarm at the Standiford AM/PM store and that the suspects were on foot. They headed back to the convenience store with the patrol car’s lights and siren on, and drove toward a canal with the intent to block the suspects’ possible escape route.
As they arrived near the canal, Officer Gutierrez saw the same white truck with the same driver. Officer Yokom saw someone jump out of the truck bed and run toward the canal, and another person was already running in front of him. One of the running suspects appeared taller than the other. The shorter suspect was the person who jumped out of the truck bed. The officers put out a dispatch about the suspects’ location, decided to let the truck driver get away, and got out of the patrol car to chase the other suspects on foot. They left on the patrol car’s spotlight to illuminate the canal bank area. One suspect tripped on the canal bank and seemed to drop a light-colored object, then got up and continued to run. The other suspect appeared to jump a fence. Officers Gutierrez and Yokom thought they heard shots being fired, and they broke off the chase and returned to the patrol car for safety reasons.
The police had been investigating the North Carpenter Quick Stop robbery when the dispatch went out on the suspects in the Standiford AM/PM robbery. The police set up a perimeter around the area where Officers Gutierrez and Yokom saw the suspect jump the fence, and a SWAT team and K-9 units joined the search. Officer Gutierrez escorted one of the K-9 units through the area, and they heard and saw movement as if someone was stepping on leaves in one of the adjacent backyards.
Appellant Lawrence was apprehended by the SWAT team as he was hiding in the backyard of a residence with an address on Chippewa. Lawrence was found on the ground, next to a hot tub. A black baseball cap was also found in that backyard, on the patio next to the hot tub. Lawrence was wearing sweatpants that lacked belt loops, but he had a black canvas belt wrapped around his waist with the letter “N” on the belt buckle, signifying Nortenos.
The officers found a handgun and a rubber or plastic mask on the top of the common fence line of the adjoining residence. The handgun was a real weapon and it had been placed inside the mask. One round was in the gun’s chamber but the magazine was empty. There were two full cartons of Marlboro cigarettes and two full cartons of Camel cigarettes on the canal bank behind the houses. Lawrence’s fingerprints were on one carton of Marlboro cigarettes and one carton of Camel cigarettes.
The police drove Wisler, the Standiford AM/PM store clerk, to Chippewa and Shawnee for an in-field showup with Lawrence. Wisler asked the officers to have Lawrence turn so he could see his neck, and Wilser identified Lawrence as the man who took the cigarettes, based on the bumble bee tattoo on the side of his neck. Wisler subsequently viewed a photographic lineup and identified Jose as the gunman. At the preliminary hearing and trial, Wisler identified Jose as the gunman and Lawrence as the person who took the cigarettes.
Apprehension of Willie Torres
At 3:27 a.m., Officer Costales responded to the dispatch of the robbery at Standiford AM/PM store, and received Officer Gutierrez’s report about the suspects’ vehicle as a white Chevrolet pickup truck, with the driver wearing a black jacket with black hair. As Costales approached the intersection of Cheyenne and Carver, he saw a truck which matched the description. Costales performed a traffic stop of the truck, and Costales and other officers approached the vehicle and ordered the occupant to get out.
Appellant Willie Wildmer Torres was the driver and sole occupant, and he complied with the officers’ orders. Officer Costales searched the truck’s passenger side and found a cell phone and pack of cigarettes in the ashtray. A red bandana was behind the passenger seat. Another cell phone was in Willie’s pocket.
During the search of the truck, the cell phone in the truck’s ashtray rang. Officer Costales asked Willie if he could answer it and Willie said yes. The cell phone rang a second time. Officer Wilson picked it up but it went to voicemail. Officer Wilson asked Willie for the code to retrieve the voicemail and Willie supplied that information. Officer Wilson punched in the code and listened to a garbled message, and then the cell phone rang again. Wilson answered it and heard a male voice. The caller did not identify himself, but the name “Anthony” appeared in the cell phone’s caller ID screen.
The white truck that Willie was driving was registered to Lydia Lopez Anthony, wife of Paul Anthony Lopez, who was the older brother of Willie and Jose Torres. One of the cell phones in Willie’s car belonged to Lawrence. Paul Anthony Lopez called Lawrence’s cell phone just as Willie was being arrested and said, “‘Get out of there.’” Lawrence’s cell phone also contained Willie’s cell phone number, along with several gang-related photographs, videos, and music.
Paul Anthony Lopez was not arrested in this case. Detectives Brocchini and Delgado explained that Paul was born in 1973 and appeared older than the suspects depicted in the surveillance videos.
Willie Torres was charged and convicted with count V, robbery of the Standiford AM/PM market, with the firearm and gang enhancements, based on his role in driving the getaway car.
Apprehension of Jose Torres
Around 3:30 a.m., Maria Santana, her father Raul, and her brother Paul, were leaving their house on Chippewa to go to work. As they were getting into the family’s van, Raul said, “‘Who’s that?’” Maria looked and saw a man jump off the roof of her house. The man appeared at the van’s passenger side, where Maria was sitting, and was holding a small chrome pistol. The man spoke to Raul, who was in the driver’s seat, and said, “‘Can you give me a ride? The cops are after me.’” The man offered gas money for the ride.
Maria told Raul not to give the man a ride, but Raul agreed to help the man. The man asked to go to Needham Liquor Store. Raul replied it was closed, but he agreed to drop him off somewhere else. The man got into the rear of the van and sat next to Maria’s brother, Paul. Paul noticed the man had a tattoo of the letter “W” on left side of the back of his head. During the drive, the man said “he left his friend behind because he couldn’t jump the fence and that he was at a bar, and he got into a fight or something went wrong.” The man later said the bar fight story was not true, used a Spanish slang word—“jale”—which meant he did “a job,” and said his friend could not jump the fence into Maria’s backyard. Raul later explained to Paul that the man’s slang word meant he had done “like robbery or something.” The man put the gun in his pocket during the drive. Raul dropped off the man at the AM/PM market on 5th and I Streets, located downtown near the freeway.
Detective Brocchini later showed Maria a photographic lineup which contained Jose’s picture. Maria initially said she could not identify anyone, but then picked Jose’s picture and said that suspect stood out because of his “big head.” At trial, Maria identified Jose and said she was pretty sure he was the man who got into their van, and that “I remember the picture, and I remember his face right here.” She remembered the nose and cheek-bone area of his face. Maria testified that when she looked at the photographic lineup, she told the officer that she could not identify anyone because she “didn’t really want to identify him. That’s why,” but knew “I had to do it.” “Well, I have a conscience, so I know I had to do it, but I was just scared to, like.” She was scared and nervous that she could be charged with an offense for giving him a ride.
Maria’s brother could not identify anyone from a photographic lineup, but recognized the “W” tattoo on the back of Jose’s head, as depicted in a photograph.
The police later obtained the surveillance videotape from the store where the Santanas dropped off the man, which depicted a silver van stop in front of the store and a man get out and walk into the store at 3:46 a.m. The man was wearing a hat and other clothing similar to what was worn in three of the four previous robberies. Detective Brocchini believed the man was Jose Torres, based on his prior personal dealings with Jose.
On May 26, 2005, the police placed a stake-out around the Oakdale house of Claudia Arciga, Jose Torres’s girlfriend, and her roommate. The officers observed Jose at the house, and arrested him there. Michael Gratton, a documented Norteno member, was at the house when Jose was arrested. Jose was wearing a gold ring, which looked similar to the ring worn by one of the robbery suspects as depicted on the surveillance videotape of the Standiford AM/PM. An officer removed the ring from Jose’s finger, and Jose said that he “wears it everywhere, and he’s been wearing it for a long time.” The police also seized Jose’s phone book. Among the names and numbers in Jose’s phone book was Jason “Loony” Cortez, an active Norteno who was involved in a tattoo shop homicide committed on a gang dropout, as ordered by Nuestra Familia. There was also a listing for someone named “China,” with several phone numbers.
Detectives Brocchini and Delgado described Arciga’s residence as a gang house. The police found a red bandana in Arciga’s bedroom; there was a knot in the back of the bandana, similar to how the bandana was worn by the robbery suspect, as depicted by the Standiford AM/PM store’s surveillance video. An empty carton of Marlboro cigarettes was in the trash can.
The police found a vehicle parked outside Arciga’s house which was quite dirty, and there were several words and initials written in the dust on the car. The initials “WWR” were on the vehicle’s sunroof. “WWR” was known as the Wicked West Riders, a Norteno gang primarily based on Wheatley Avenue in southwest Modesto. The vehicle also had the word “Joser,” which was Jose’s admitted gang moniker, “Motown,” meaning Modesto, and “WCN” and “XIV,” which signified “West Coast Nortenos” and the number 14, a common sign for the Nortenos. The police did not record the car’s license plate number and did not determine who the car belonged to. Detective Delgado testified that these dusty scribbles demonstrated to people that Arciga’s residence was a West Coast Nortenos gang house, that gang members live or associate with the area, and to back off and not mess with the car or anyone else.
Officer Scott Muir testified that gang paraphernalia was found inside Arciga’s house, including a jersey with the number 14 on it, a hat with “WCN” on it; a red bandana on a picture or mirror frame; photographs of people wearing and displaying red bandanas; photographs of Jose throwing a “W” and “C” gang signs for “West Coast”; photographs of Jose and other men throwing “West Coast” gang signs; photographs of Jose and other men wearing red rags and red clothing; and a photograph of Jose with Michael Gratton, an associate of Wicked West Riders.
Lawrence’s Postarrest Interview
At 10:20 a.m. on May 25, 2005, Lawrence was interviewed by Detectives Brocchini, Delgado, and Owen. The interview lasted one and one-half hours, and portions of the videotape were played for the jury. Lawrence was advised of the Miranda warnings; he waived his rights and agreed to answer questions.
Miranda v. Arizona (1966) 384 U.S. 436.
The officers advised Lawrence that they “pretty much” knew everything, they had pictures and photographs from the armed robberies, and Lawrence was “pretty darn clear” in every one of them. Lawrence did not deny that he was involved but said he did not know the other guys. Lawrence said he was from San Jose, he came down to Oakdale and was hanging out with a girl, and he needed money to get home. Lawrence’s grandmother lived in the area.
Lawrence admitted his involvement in four armed robberies. Lawrence said he committed the robberies with a girl and the “other guy, that guy, I don’t know his name.” The girl drove him to the stores in “[s]ome old bucket,” like a Datsun. Lawrence denied ever being in a white truck.
Lawrence said he committed the robberies with a guy he did not know, but the guy’s name was “Mike.” He did not know “Mike’s” telephone number, and Mike’s picture was not in his cell phone. Lawrence thought the first robbery was at Stop-and-Save, the clerk was a woman, and he just took money from that store. Lawrence said he took beer during one of the robberies and cigarettes during the last robbery, but he did not know what the other guy took. Lawrence said they went their separate ways after the robberies.
Detective Brocchini asked Lawrence if he got any money from the robberies. Lawrence replied he got $20 and some food, and “that dude just gave me 20 bucks.” Brocchini asked if that was “[t]he same dude as tonight?” Lawrence replied, “Ahhhh I guess, I’m in the videos, the videos should show.” Brocchini said he already knew who the other guy was, and he wanted to see if Lawrence was telling him the truth. Lawrence replied he did not know anything, he was not from this area, and he was just trying to get home. Brocchini asked what Mike looked like, and if he had tattoos. Lawrence said Mike was about his height but maybe a little shorter, and he had tattoos of four dots and a cross on his hands. Lawrence did not know if Mike had tattoos on his head because he always wore a hat.
Brocchini asked Lawrence about the robbery that occurred earlier that night (count V, Standiford AM/PM). Lawrence again said he was just trying to get home, but the robbery was done by “me and the dude, fuckin’ Mike and shit.” Lawrence said he left his cell phone with “like one of the other guys” in case something happened. Brocchini asked Lawrence who he was with when he ran away that night. Lawrence said he was with “the Mike guy” when he ran away after the robbery. Brocchini advised him the police stopped a white truck, Lawrence’s phone was in the truck, and asked who was in the truck. Lawrence replied he was “the Vince guy.” Brocchini said the man was in custody but his name was not Vince. Lawrence said, “I really don’t know him and shit. I met him with that guy today” for the first time.
Brocchini asked about the Quick Stop robbery (counts III & IV, Mazloumi) and whether he had a gun for that job, and Lawrence said no. Brocchini asked about the robbery earlier that night. Lawrence said he just “stood there” during that robbery and he just “displayed” a gun, but he did not fire a gun that night.
Brocchini said he did not believe the other man’s name was Mike. At that moment in the interview, Lawrence’s cell phone rang, Brocchini answered it, and the caller asked to speak with “Michael.” Brocchini replied there were no “Michaels” on that phone and hung up. This incident happened in Lawrence’s presence. Lawrence suggested that maybe “that guy,” Mike, “used my phone and called.”
Brocchini resumed the interview and asked Lawrence how he got to the store that night for the robbery. Lawrence said “some chick” drove him in her “little beat up bucket,” and parked down the street, but he was not sure where. Lawrence said they used a .25-caliber gun that night, but it was not his gun and he did not know if it was loaded. Lawrence used a mask for the first burglary that night (counts III & IV, Quick Stop/Mazloumi) but failed to wear the mask for the last burglary at the Standiford AM/PM. Lawrence did not know why he did not wear the mask since it was in his pocket. Lawrence added he wanted to cooperate more but “that dude” just kept him on a “need to know basis.” Lawrence said that the other day, he got a little bit of money from the robberies to buy a toothbrush, deodorant, and something to eat, but he did not get anything tonight.
Brocchini asked Lawrence about running away from the white truck and down the canal bank, and that he left his cell phone in the truck. Lawrence said he did not know anything about a truck, and added, “I think he was around that area, I don’t know, I didn’t see him around [the] area,” and he would have asked that guy for a ride “if he was around the area” as he ran away. Brocchini explained the police followed the white guy and “you guys” ran away and the truck took off, but the police caught the truck with Lawrence’s cell phone. Lawrence again said he was not in the truck. Brocchini asked if they were supposed to hook up with the truck. Lawrence replied that he did not know “the dude,” and “if I woulda knew who he was and I needed to get outta there I woulda jumped in know what I mean.” Brocchini again asked if Lawrence loaned his cell phone to the guy in the white truck. Lawrence said he did not think so, and “if I woulda seen somebody that I knew out here, I woulda ran towards to jump in their car rather than to try run around some area I didn’t even know.”
Brocchini asked Lawrence what happened to the guy who ran away with him. Lawrence said “he was gone” and “I kept running and I went somewhere else. He was gone before I did.” Lawrence tossed the cigarettes because they were not worth it.
The officers asked Lawrence what gang he claimed. Lawrence replied that he was “a Northerner” with “Varrio Eastside” in San Jose. There were about 15 guys in Varrio Eastside, but they did not commit any crimes, and his “homies” had jobs and got mad at him when he drank and did stuff. Brocchini asked what Mike and Vince claimed. Lawrence said he just met Vince that day, he did not know about Mike, but he guessed Mike might be a Northerner. He never saw tattoos on Mike’s head or neck because he was always wearing a hat.
Lawrence said that while he was a Northerner, he did not know the people in Modesto and denied he was a West Coast Norteno. Lawrence said his older brothers were Nortenos, he started hanging out with them when he was six years old, and he claimed Nortenos when he was 13 years old because he wanted to be like his brothers. One brother was in prison for attempted murder, and the other brother was married and doing well in San Jose. He admitted that other members of Varrio Eastside had gone to prison, but that was a long time ago and those people were dead now.
Detective Brocchini asked Lawrence about “Mug,” and why he received calls from him. Lawrence said “Mug” was a friend of his brothers and “[j]ust some guy I know” from San Jose. Lawrence admitted there were pictures of Mug and his San Jose friends in his cell phone, and Mug was throwing a gang sign in the photograph. Lawrence said he did not have any pictures of Mike in his cell phone, and Mike did not know Mug.
Brocchini asked why “Mug” called Lawrence’s cell phone at 3:00 a.m., one minute after the robbery, and Lawrence called him back. Lawrence said he did not know. Brocchini advised Lawrence that “Mug” was Paul Anthony Lopez, who owned the white truck. Lawrence said he just knew him as “Mug,” but insisted Mug was not involved in the robberies, Mug’s truck was not involved, and he was not in “Mug’s” truck after the robberies. Brocchini replied the white truck was on the surveillance videotape from the robbery where they took the beer. Lawrence again said a girl “was drivin’ us around in some little fuckin’ bucket car,” and he was not in a truck.
Brocchini asked Lawrence how many robberies he committed since he was in Modesto. Lawrence said four. Brocchini asked if he did the robberies with the same people. Lawrence replied the girl drove him but he was not with “the same other guy even.” Lawrence said he didn’t usually “do this shit” but the girl asked, “you wanna make some money,” he said yes, and she drove him to the stores.
Brocchini asked the girl’s name, and Lawrence said he was staying in Modesto with a “chick” named “Cheena,” and she drove him to the robberies in her little Datsun bucket. Cheena also supplied the gun used in the robberies. Lawrence did not have her phone number and was not sure where she lived because “she’s just like a floater,” and again explained “people just keep me on a need to know basis, ‘cause they don’t know me .…”
Brocchini told Lawrence that the police arrested Willie Torres, and he had Lawrence’s cell phone. Lawrence replied: “Oh, I don’t know. All I knew his name was Vince.”
Brocchini asked Lawrence how much money he got from the four robberies. Lawrence replied he got about $30 or $40, and “they just gave me little something to eat.” During the first robbery, he did not use the gun and he just got the beer. Lawrence admitted he committed a second robbery shortly after the first robbery, and he used the gun during the second robbery. During the second robbery, he did not wear a mask, he lifted up his shirt to show the gun to the clerk, and asked for the money. Lawrence said another person was by the door. The clerk put the money in the bag, and Lawrence gave the bag to Cheena, who was waiting in her little Datsun.
“... I just gave the fuckin’ girl the bag and shit and said here, but I got this for everybody. Like I said they just gave me like fuckin’ little bit.”
Cheena gave him some money, and he did not know what she gave to the other guy. Cheena dropped him off at his grandmother’s house. Later on, Cheena picked up Lawrence from his grandmother’s house and they spent the night together at another’s person’s house, but Lawrence did not know the person or the location.
Lawrence admitted he was involved in two robberies that night (counts III & IV, Quick Stop/Mazloumi, and count V, Standiford AM/PM). During the first robbery of that evening (counts III & IV, Quick Stop), he wore a mask and showed the gun to the clerk, stood by the door, and he grabbed some money. He gave all the money “to the dude again,” and “to the girl.” “I didn’t even get any, I just gave it to that chick.” Lawrence added that he thought Mike was from Turlock. Cheena drove them to the last robbery, where he took some cigarettes, but she left while Lawrence and Mike were in the store.
Brocchini asked Lawrence when he hooked up with Vince, and Lawrence replied it was at the girl’s house. Brocchini suggested that Lawrence was a pretty nice guy to commit robberies and give away the money. Lawrence replied he was “thankful” that they “let me do a little summin’ so I can survive know what I mean?” Lawrence admitted he was a Northerner but denied he did anything for the gang, and “I don’t know these people out here” and he just knew “that chick.” Lawrence said the chick trusted him, and complained that he trusted her but she was “lookin’ for a guinea pig know what I mean?”
Brocchini again asked when he gave his cell phone to Vince. Lawrence said he was at some place where he stayed with the girl. “I just said hey here’s my phone in case you need to call anybody.” Lawrence did not know where Cheena lived and did not know how to get there. Brocchini asked if Mug was involved even a little bit. Lawrence said no, but he believed Mug “know[s] those people” because Mug told him not to mess with people out here. Brocchini asked why Mug called his cell phone at 3:00 a.m., and whether he said he was hiding in another yard. Lawrence emphatically said no.
Brocchini asked Lawrence to explain his tattoos. Lawrence said he had a “SJ” for San Jose, a “Mongolian warrior,” “V” for Varrio Eastside, his San Jose neighborhood, “VES” for Varrio Eastside, and a bumble bee. Detective Delgado asked if one tattoo was covered up, and Lawrence clarified the tattoo was a “4,” it was not a cover-up, and he had “1” on the other side of his hand. He had a “Huelga” bird on his stomach, and he got it after a Cesar Chavez march and it was just a Mexican symbol, and not about the Nortenos.
The witness to one of the robberies said the suspect had a bumble bee tattoo.
Detective Brocchini advised Lawrence that “the dude you’re callin’ Vince,” who had just been arrested, was “Mug’s” brother. He showed Lawrence a photograph of this person, and again asked if Lawrence knew “Vince.” Lawrence said he knew “Mug” had a brother from San Jose but had not seen him since he was a little kid.
“BROCCHINI: And now you’re doin’ robberies with ah, doin’ 4 robberies and your phone, and we arrest you with Mug’s brother and your phone is—Mug’s brother has your phone, you tellin’ me you didn’t know that was there—that’s his brother?
“MEJIA: Ah like I said I only knew him as Vince, or Vince and shit, I know him as Vince. I don’t know fuckin’ to, like hey, I’m being honest. I really am bein’ honest.”
Detective Delgado asked if Vince gave him a ride in the truck. Lawrence said no, he was never in the truck, and some girl drove him around.
“I’ll tell you right up front I wasn’t [in] no truck. Guarantee ya I wasn’t in no truck.”
The officers advised Lawrence that the white truck was on the surveillance videotape from the first robberies. Brocchini said he understood that Lawrence was trying to protect “your Norteno homeboys,” the guys he knew as Vince and Mike, and they knew he was in the truck. Lawrence insisted he was never in a white truck and “the cop didn’t see me in that truck,” he did not know who was driving that truck, and the girl drove him around. Lawrence admitted he saw a white truck that “had some dude in it real quick as I ran.” Brocchini again asked how his cell phone got into that truck. Lawrence again replied he “left it with that guy Vince” because he did not want to take it to the robbery and drop it.
Detective Delgado again asked who went into the store with him that night. Lawrence again said the “girl took me” and Mike went into the store, and “when we came out she was gone.” Brocchini insisted “[t]he dude in the store was Mike’s, was Mug’s brother. His youngest brother and ah the fact that now you’re told me that you and Mug are like family friends, it’s pretty obvious.” Lawrence again denied it and said Mug was just a family friend. Officer Delgado said he went into store with Mug, who he claimed was Mike. Lawrence again said he went with Mike from Turlock, and he had tattoos on his neck that said “ES” for Eastside. Delgado showed Lawrence photographs from the surveillance cameras, and said “Eastside” was not on the guy’s neck.
“Delgado: ... Okay so don’t give us that line of crap. You’re tryin’ to protect these guys and I—we respect that, knowing that you’re tryin’ to protect your homeboys, ‘cause that’s what you do. Alright?
“Mejia: You said that they were homies and shit, I don’t know these guys.”
The officers advised Lawrence that they were his homies and would not have committed a robbery with him otherwise. Lawrence went back to the “chick” and complained he trusted her but “she was just using me as a dick head,” and she made out until he got busted. Lawrence complained the girl left him in a house all day, then picked him up for the robberies.
Both officers replied that he was “so fulla crap” and to show them more respect, and Delgado asked if was a sex slave. Delgado again asked the girl’s name, and Lawrence only knew her as Cheena, and she drove an “old ass fucked up bucket like a Datsun.” Delgado said he was not helping himself. Brocchini said they had him in the truck twice, once on video and once when the police saw him. He might have been with “Cheena” during the other two robberies “but those two you can’t deny bein’ in that white truck,” his cell phone was in that truck, and maybe his fingerprints were in the truck. Brocchini asked Lawrence how he would explain things if his fingerprints were in the truck. Lawrence said he did not remember being in the truck, and “I’ll stick to my word out there. That cop did not see me in that truck. I didn’t get in that truck.”
“BROCCHINI: Okay maybe he saw you standin’ outside and he saw Jose gettin’ outta the back of it, but you were with the truck, I mean you’re, well soon as you guys split up cops came after you, cops went after the truck, it’s ....
“MEJIA: I said I was with a guy named Mike.
“BROCCHINI: I said you were guy—Jose. I don’t think you were with Mike and I think you know it, but you can say Mike if you want.”
Lawrence replied the guys gave him their names. Brocchini said he was in the truck with Willie and asked if he was scared of these guys. Lawrence chuckled and said no. Delgado said he must be scared because he was lying about the truck, and the truck was nothing compared to the robbery, and he was already admitting having a gun during the robbery. Brocchini added that Lawrence did not want to say anything about the truck because that put the spot on his homeboys, that he knew Mug, and Willie was Mug’s brother “and we’re lookin’ for his other brother now.” Lawrence said he just knew Mug through old family friends, and he knew his brothers a long time ago. He did not think Mug was with Varrio Eastside.
Brocchini said it looked like Lawrence was “payin’ somethin’ off” because he was an admitted gang member but committed four armed robberies and only got $30. Lawrence again said he did not know anyone in town and just wanted to get something to eat. Brocchini suggested Lawrence had enough money to leave Modesto after the first robbery. Lawrence replied that they had to “give to the girl know what I mean?” Brocchini asked why he would give the money to the girl when he committed the robbery. Lawrence said she was the one “thinking of this know what I mean?”
The officers said they knew what was going on, and that Lawrence was “payin’ taxes.” Lawrence chucked. The officers continued that the girl was “a channeler” and he was “channelin’ all the money to her, ‘cause she takes care of it,” because her “old man” was locked up. Delgado asked why he would take a chance of going to prison for 10 years and give the money to some girl. Lawrence said he did not know anyone there and she was the only person he knew. He had no other way and was trying to get some money to get back to San Jose. Lawrence said he was supposed to go to Disneyland with his family the next day. Delgado suggested Lawrence was “puttin’ in all work right now” by committing robberies and giving the money to someone else; Lawrence denied it.
Brocchini asked Lawrence if he was a West Coast Norteno. Lawrence said no. Brocchini asked him about a photograph in his cell phone, where he was with a group and someone was throwing “W” and “C,” West Coast handsigns. Brocchini asked if that person was Mug, and Lawrence said yes. Brocchini said he was in a photograph with a group of guys wearing red and claiming West Coast, they had arrested Willie and Jose who were both West Coast Nortenos, and “now I see you right in the midst of ‘em.” Brocchini asked if Mike and Vince were in the photographs, and Lawrence said no. The officers said Lawrence was obviously West Coast because he was in the middle of the photograph. Lawrence said they were all friends from San Jose and not from Modesto, and they were not from any gangs.
Brocchini again returned to the white truck, and told Lawrence that he did not even know what Willie had said, especially since Willie never went into the store. Willie was scared, he was already on parole, and he had no reason to lie. “I mean your phone is in his car, you know, he, he basically says he just gave you a ride there, you and Mike. But you’re over here wantin’ to say you don’t even know the dude. You don’t know, you know some dude named Vince. You never been in the car. That ain’t the truth though.”
Brocchini instructed Lawrence that he was going to “walk this dude out,” presumably referring to Willie, and for Lawrence to look at him and tell him if that guy was Vince who had his phone. Brocchini said the other guy would not see him. There was a pause and Lawrence said, “Naw that dude wasn’t the Vince guy,” presumably referring to Willie, and that he did not know the guy. Brocchini asked who had his phone. Lawrence replied he did not know. Brocchini advised Lawrence that the guy he just looked at was Mug’s brother, he had Lawrence’s cell phone, and the police got it from him right after Lawrence ran. Lawrence said he did not know the other people, he did not call the dude, and that was not the guy he gave his phone to. Lawrence said he went to the store with Mug on a “regular legit” visit, he committed the robberies with a guy he knew as “Mike,” and the girl drove.
“Brocchini: Okay it’s Mike. You and Mike, but there was no girl in that truck. There was no girl in that truck. Okay, does that re—does it refresh your memory?
“Mejia: No (chuckle), I mean I’m not gonna start changin’ the stories up and shit, I mean.”
Detective Brocchini asked Lawrence about the gun that “Mike” had. Lawrence said Mike used a semi-automatic gun, he also used a semi-automatic gun, it only had one bullet, he never fired the gun, and he pointed it away from people. Lawrence asked how much time he was looking at, and said his adult record was clean. Delgado said things were pretty serious and it was up to the district attorney.
The officers again asked how the dude got his phone and that he had been in the truck. Brocchini said Lawrence had just looked at Mug’s brother and they were both going to jail for the robberies. Lawrence asked if he was looking at four felony convictions, with 10 years each. Brocchini asked if he wanted to go to prison, and if that was why he did the robberies. Lawrence said he was being “a dick head” and it was “a stupid, fuckin’ decision.” Brocchini said he believed about half of Lawrence’s story, and knew he was protecting the other dudes since he would not even admit calling them on his cell phone. Lawrence replied: “The dudes who you’re lookin’ for I guarantee I’m not in pictures or their numbers are not in my phone.” Brocchini replied that Mug called Lawrence’s phone and Willie’s phone at 3:06 a.m. “and said get outta Dodge, get outta here, cops are everywhere. That tells me Mug was there too.” Lawrence said maybe it was Mug and the Vince guy, and the “Vince guy knew what we were gonna do” and Mug was “tryin’ to get us t[o] stop it before we did it or summin’, I don’t know.” “I know he didn’t want us to do that shit and ya know.”
Brocchini asked Lawrence if they robbed any of the clerks during the four robberies with Mike, and made the clerk empty his pockets, and showed him a photograph. Lawrence said no, and that he was standing at the door and did not take money directly from the clerk.
As the interview ended, the officers told Lawrence that he would be placed in protective custody because there were a lot of Surenos in jail. Lawrence said that was not necessary and he got along with all the Nortenos. Detective Delgado asked Lawrence if he could be housed with the Nortenos, and Lawrence said yes. Delgado asked if he was a dropout or active Norteno. Lawrence said he was not a dropout and was not sure if he was active, but he had nothing to worry about. Brocchini noted “you’re goin’ to jail with Willie over here.” Lawrence replied, “That’s fine I never seen the guy, so I got nothin’ to worry about.” Brocchini suggested that Willie might think he was going to jail because of Lawrence. Lawrence said that was no reason to put him in protective custody, that he was not a dropout, and he could be housed with the Nortenos.
Lawrence’s Postarrest Statements to his Family
At 3:43 p.m. on May 25, 2005, Lawrence called his brother from jail. Lawrence told his brother, “They caught—they caught me with fucking everything. They caught me with—fucking with my mask, all that shit. See, they already know it was me.” A sign above the jail telephone warned users that the calls were monitored or recorded.
At 6:34 p.m. on May 25, 2005, Lawrence called his father in San Jose, and a transcript of that call was introduced to the jury. His father asked if he was off the hook. Lawrence said not yet. His father said he knew everything, “Ah you guys doin’ all the ro—all that shit .….” Lawrence said, “I know.” His father continued, “and I know what it was for.” Lawrence asked what was it for. His father replied, “For the shit.” His father said, “You know what Larry you had no business over there. You know—you—you completely just screwed yourself. Or somebody screwed you.” Lawrence replied, “Man it was me.”
Lawrence’s father chastised him for screwing up because “[y]ou didn’t wanna be living at home and you—you wanted to be out there—bein’ a big fool. You know?” His father asked what they had him for. Lawrence replied, “They have me for four armed robberies with my face on videotape. They caught me with a gun—the mask I used—gang enhancement.” His father asked what kind of gang. Lawrence said they were saying “I was doin’ all this shit out here for the gangs and all that.” Lawrence added, “[T]hey busted me like right around the corner from the scene.” His father thought he was arrested during a raid on a house. Lawrence explained:
“No. I was—they caught me like right when we did it—the fuckin’ cops came. And we had jumped backyards for the fuckin’ they had blocked it all off and the SWAT team came in the backyard and they got me.”
His father offered to send money but did not think he could get an attorney. Lawrence replied there was “no point to it” because “I’m on video and every—you know?”
Lawrence’s father told him not to be stupid “and tell ‘em all this and that—this and that. Like you always do.” Lawrence replied, “They have me on video I can’t tell ‘em nothing.” His father asked if he already told them. Lawrence said, “Oh hell no I didn’t do all that.” His father asked, “You didn’t even know the people, humh?” Lawrence replied, “Naw—they’re homies,” and “They were dudes from out here.”
Lawrence also said, “I shouldn’t be here long because I’m not gonna fight a case or anything, they already have all the evidence.” His father replied that he still had to fight it. Lawrence said, “They caught me with everything,” and “with the mask and a gun right around the corner there.” His father advised him not to plead guilty and get “what they want” but to make a deal. Lawrence replied, “Well what do I say when they’re showin’ me tapes of me and all that shit?” His father said he still had to fight it and make a deal. His father also suggested that he tell his public defender that he was “doin’ this shit” because “it was the drugs” and he was stranded there.
Jose’s Postarrest Statements to his Family
Jose’s first visitors in jail were his girlfriend, Claudia Arciga, his mother, and a child, and that visit was tape-recorded. Jose told the child to be good while he was in custody. Jose told his mother that Detective Brocchini had seen the pictures and “he’s trying to say it’s me.” Jose told his mother: “Nothing, they ain’t got nothing. So he’s in most likely than me. Just get fucking blank me, and Larry’s the one that gonna take the rap, know what I mean?”
Jose told Arciga: “They found that. Fuckin’ why did Melissa [presumably Arciga’s roommate] give him permission to search the house?” Arciga replied, “Well, I did, too.” Jose said, “You guys are stupid,” and that the officers found “[t]he carton, gang-related pictures, too, shit like that.” Arciga exclaimed, “Oh, no.” Jose told Arciga to keep “all of that shit that’s there,” but he wanted his mother “to get my clothes. So if the cops go to my house, they won’t be like, well, he’s not living here, and that’s why I’m registered to my mom’s. You know what I mean?”
Jose continued his conversation with Arciga and said: “Yeah, so fuckin’ went to court today. Me and my brother and—and Larry. Shit ain’t looking too good.” Arciga asked whether it was worth it, and Jose replied, “Fuck no. That’s what I was thinking all of the time I was fucking there.” “I said that’s all I was thinking all of the time I was in the back seat of the car. I just don’t know how they found out where I was at.” Arciga told Jose he should have “just stayed home those times I told you to,” and he was “hard-headed” and “retarded.” Jose replied, “I just needed to get some money, some easy-ass money. And that’s what I tried to do.” Arciga asked, “And what did you get out of it?” Jose replied, “Discipline.”
Jose told Arciga to find some pictures and send them to him, but not to send any pictures which were gang-related or had “red pano,” and “[j]ust got to find the pictures where I’m not doing anything.” Arciga told Jose not to get into any fights, and Jose replied he was not “in YA anymore.” Arciga said, “Well, still you’re retarded. You thinking you’re all made of metal?” Jose replied, “Shut up. Not coming here to do that.”
Gang Evidence
The prosecution introduced evidence as to the appellants’ association and active involvement with the Norteno gangs. From 1998 to 2000, Ra Pouv was Willie Torres’ probation officer. Willie was on Pouv’s caseload as a high risk gang offender. During that period, Pouv met with Willie at least 25 times, reviewed the terms of his probation, and asked if he associated with gangs, in violation of the terms of his probation. Each time, Willie said he did not associate with gang members anymore, but Pouv saw Willie with gang members about 10 times.
On January 6, 2000, a probation search was conducted at Willie’s home, and officers found business cards of the company that promoted the “Generations of United Nortenos” CD, a plaque which said “West Side,” and a red jersey. Willie had a “Mongolian style haircut,” with his hair shaved close with a patch at the top grown into a ponytail, which is a symbol of the Nortenos.
On October 10, 2001, Modesto Police officers had contact with Willie and observed several tattoos: “BWSN” on his stomach, a Huelga bird on his right arm, and “Brown Pride” next to the Huelga bird. Willie said “BWSN” meant “Big West Side Norteno. Willie said his uncle gave him the Huelga bird tattoo when his uncle got out of prison and Willie was jumped into the gang. Willie talked about his knowledge of the Nortenos and the “Generations of United Nortenos” CD, and he was passing out cards promoting the CD.
On June 18, 2003, Ra Pouv was an officer with the Modesto Police Department and had another contact with Willie Torres. Willie said he used to claim East Side Nortenos when he was a teenager.
On July 4, 2003, Modesto Police Officer John Sanchez had contact with Jose. Jose was wearing a white tank top and black shorts. Sanchez asked Jose if he was a gang member. Jose said yes and that he was “a West Coast Norteno.” Jose said he was also known as “Joser,” and claimed as a West Coast Norteno for three years. Sanchez noticed Jose had tattoos on his left arm, left hand, and right hand.
On August 7, 2004, an officer conducted a traffic stop near the Turlock fairgrounds and determined Jose was in the car with Michael Gratton and Victor Montoya, both documented Nortenos. Jose said he used to claim Nortenos.
On August 21, 2004, Officer Pouv had contact with Jose. Pouv had met Jose based on his prior contacts with Willie. Jose was with “Primo” Gratton when Pouv spoke with him. Gratton was a documented Norteno, and his father, Robert Gratton, was one of the leaders of Nuestra Family, the Norteno gang in the California prison system. Jose said he “used to claim” West Side Nortenos. Jose was not wearing or displaying any gang clothes or paraphernalia. He had tattoos of “WCN” on the back of his head, “West Coast Nortenos” on his left arm, “[s]inful thoughts” on the back of his neck, “WSN” on the web of his left hand, “West Coast” on his left ear, four dots on his left fingers, one dot on his right finger, and one star on his left elbow.
As we will discuss post, Detective Delgado testified that Robert Gratton was a local Modesto Norteno who became the leader of Nuestra Familia in prison, and directed Nuestra Familia to produce a CD, entitled “Generations of United Nortenos,” which was distributed to the Norteno street gangs and directed them to unite as a gang instead of fighting within themselves, and direct all their attention against the rival Surenos. The CD had been found all over Northern California in the homes of Norteno gang members.
On September 2, 2004, Modesto Police Officer Ivan Valencia observed Jose, Victor Montoya, and Michael Gratton sitting on a bench at Mellis Park, an area where there was a lot of gang activity. Gratton was using a marker to write Norteno gang graffiti on the bench. Gratton had previously admitted to Valencia that he was a Norteno, Montoya admitted at that time he was a Norteno, and Jose said he was an ex-gang member. Jose was wearing black and red tennis shoes. Valencia had previous contacts with Jose and he never admitted being a current Norteno, but Valencia did not believe him based on his tattoos, clothing, and his association with other Nortenos such as Gratton and Montoya. Jose had a “WCN” tattoo on the back of his head, and “every time I’ve contacted him, he’s always had that area shaved so you can clearly see the tattoo,” which Valencia believed meant he was still promoting the gang. Jose said “WCN” meant West Coast Nortenos.
On September 8, 2004, Officer Mathew Spurlock contacted Jose in Modesto. Jose told Spurlock he was a member of the Nortenos. Jose was wearing a black hat, black T-shirt, and black shorts. Jose had a “WCN” tattoo on the back of his head, meaning “West Coast Nortenos.” On his neck, he had tattoos of “West Coast” and “Bad Boys.” He had tattoos of “West Coast Nortenos” on his left arm, four black dots on his left hand, and one dot on his right hand.
On October 29, 2004, Officer Valencia conducted a traffic stop and Jose was in the vehicle with Johnny Reyna and Jimmy Alvarado; Reyna admitted being an associate and Alvarado admitted being a member of the Nortenos. Jose was wearing a red, gray and black jacket, red and white baseball cap, red and white tennis shoes, and a red T-shirt. Jose claimed he was a drop-out from the gang.
On December 22, 2004, Officer Valencia assisted another officer on a traffic stop, and Jose was in the car with Michael Gratton and Mark Soto, both admitted Nortenos. Jose said he was related to Gratton. Jose was not wearing any red. Valencia asked Jose why he was with Nortenos when he always claimed to be a gang drop out. Jose said he hung around with them but did not belong in the gang, and he was an ex-member of WCN. At that time, Jose was identified as a member of the Wicked West Riders and Nortenos.
On March 2, 2005, Officer Serratos had contact with Jose while he was with Victor Montoya, an admitted active Norteno member.
On March 3, 2005, officers spoke to Primo Gratton (not Michael Gratton), who said that Jose was an active member in the Nortenos.
On March 9, 2005, officers conducted a search of a house on El Vista and seized photographs of Jose wearing red and throwing gang signs for the West Coast Nortenos, along with other Norteno members.
On March 20, 2005, Modesto Police Officer Richard Rodarte had contact with Jose when he was seen in a convenience store, about to commit a “beer run” with some associates. Rodarte asked Jose if he was a gang member. Jose said he was a member of the West Coast Nortenos. Jose said he had a black solid star tattoo on his left elbow, and he earned it by slashing a rival Sureno in CYA. Jose had other tattoos, including “WCN,” for West Coast Nortenos, on the back of his head. On the right side of his neck, he had “Bad Boys” and “Sinful Throughts.” On the left side of his neck, he had “West Coast California.” On the left forearm, he had “West Coast Nortenos.” On the left hand, he had four dots on his knuckles, and “WSN” on the web of his left hand. There was one dot on his right hand. The one and four dots meant “14,” the number associated with Nortenos, since “N” is the 14th letter of the alphabet. On his stomach, it said “WCN,” for “West Coast Nortenos.” Jose said he lived on El Vista Avenue. He was wearing a white T-shirt, black pants, and a black belt; he was not wearing or displaying red.
On April 14, 2005, Detective Mike Richards contacted Jose, who admitted he was a West Coast Norteno. Jose was wearing a red and white baseball cap, jersey, and shoes.
Detective Delgado testified that on May 8, 2005, just a few days before the robberies began in this case, a group of Norteno gang members were creating a loud disturbance in the parking lot of a 7-Eleven in Modesto, and the clerk asked them to leave. The gang members took that as a sign of disrespect, and they attacked the clerk and beat him with a pipe. The gang members fled in a vehicle but were apprehended, and Jose was in the vehicle with them.
It was stipulated that Jose Torres had one felony conviction at the time of the offenses in this case.
Expert Testimony on Robberies
Detective Brocchini testified over defense objections as an expert witness on robberies. Brocchini testified the robberies charged in this case were related to each other based on the similar methods used by the suspects.
We will discuss appellants’ objections to Brocchini’s expert testimony in section V, post.
“That they were all 24-hour convenience stores. The robberies occurred late at night, like between 11:30 at night and 3:30 in the morning. There was no customer ever in the business at the time of the robberies. The way they committed the robberies, the same in all of the robberies, meaning when they went in, a gunman always went to the clerk, and the other suspect would either stand at the door or get money or beer. The suspects in all of the robberies have the same, similar description. They’re wearing the same, similar kind of clothing. They use a gun that’s similar, we described, in all four robberies. [Lawrence] admitted that he did all four robberies, and he admitted he did it with the same person.”
Detective Brocchini testified the facts showed the same perpetrators committed the robberies:
“They have the same physical descriptions, same gun used, same clothing. In two of the robberies, they’re wearing exact same clothing. And in the other two, they’re wearing the exact same clothing.
“The way they committed the robbery, like I said before, sometimes they do different jobs, meaning the taller subject might go to the clerk, but he’ll also have the gun. And the shorter one will either stand guard or get something else. Or the shorter one will go to the clerk, and taller one would stand guard. That’s not unusual. They take turns in robberies ....”
Brocchini also addressed the witnesses’ identifications of the robbery suspects—Mazloumi identified Jose’s tattoo on his neck as similar to the tattoo displayed by the suspect in the Quick-Stop robbery; Niave identified Lawrence’s tattoo, and identified Lawrence at the preliminary hearing and trial as the one of the Stop-and-Save robbers; Wisler identified Lawrence at the in-field showup shortly after the Standiford AM/PM robbery, and identified Jose from a photographic lineup and at the preliminary hearing and trial; Maria Santana identified Jose as the man who jumped off the roof, asked for a ride, and said he was running from the police; and Lawrence was found in the general vicinity as where Jose appeared at the Santana house.
Detective Brocchini testified the two robbers acted as a team when they were in the convenience stores: one man went to the counter and obtained the money from the clerk, the other man grabbed beers or cigarettes, and they met back at the door when they were finished. Each robbery lasted about one minute. Brocchini noted some of the robberies were separated by less than 30 minutes, testified they planned each robbery but “they probably planned it from the time they left one and they picked the next one. So not a lot of time.” Based on his investigative experience, Brocchini testified that robbery crews consist of two or more people because it is more confusing for the victims to describe the suspects and the descriptions will be mixed up.
Brocchini testified the getaway driver’s role was to supply a car that was either registered to someone else or stolen. The getaway driver usually selects the location and waits outside with the engine running for a quick departure. Based on Brocchini’s investigative experience, the getaway driver is usually someone in authority. “He doesn’t want to get his hands dirty. He doesn’t want to go inside, but he wants to make sure it gets done, and he wants to get his cut. And then he drives them away to a location of safety.” During the last robbery, the police actually saw the getaway vehicle—the white truck—waiting for the robbers to leave the Standiford AM/PM, the police saw the robbery suspects jump out of the truck, and they apprehended Willie as the driver, Lawrence was found nearby, and Jose turned up nearby at the Santanas’ house.
Detective Brocchini also offered testimony as to the interaction of gangs with armed robberies, based on his prior training, experience, and knowledge about gangs gained while working in the gang unit. Brocchini testified to his opinion that the robberies in this case were committed to further gang activity by obtaining money or items which would probably be used to purchase guns, since gang members cannot buy guns through the usual channels. Brocchini had also seen situations where gang members commit robberies and use the money to pay rent on the gang house or pay the PG&E bill. Brocchini acknowledged the robbers in this case were more sophisticated than a transient trying to rob a store, but they were not very smart. However, Brocchini rejected the possibility that the armed robberies were “drugged-out, nonthought activity.”
Brocchini testified that every robbery committed by a gang member could be performed to further the gang’s criminal activities, although he conceded that there could be circumstances where one gang member committed a robbery only to obtain cigarettes or food for himself. “We wouldn’t be putting a gang enhancement on somebody that stole a pack of cigarettes from some guy or one cigarette. It might not be gang-related. It may be gang involved, a gang member that committed a crime, but it’s not a charge that would be pursued.”
In Brocchini’s opinion, when a gang member steals beer or cigarettes, the act furthers subsequent criminal activity because that gang member has gained the confidence of the rest of the gang by performing the crime, and can also brag about it and increase his notoriety within the gang. Brocchini cited to the slang phrase which Jose used when the Santana family gave him a ride: “... [T]hat’s actually what they call what you heard here, ‘jale,’ putting in work.”
“You don’t take a brand-new gang member on an armed robbery on the first day. You let him—you’ve got to see if you trust him. You work up to it. First you simply send him in, maybe he tosses the door, beer around. Didn’t do the robbery, just goes out with it, but that’s—you’re teaching him. You’re gaining his confidence. He’s gaining yours. You’re getting trust out of his use. You’re seeing if he’s going to rat if he gets caught on that little beer run. That furthers gang activity for the gang.”
Once the gang member raises his stature within the gang, he does not have to commit the crimes anymore and he can send out the younger members to perform the crimes.
Brocchini acknowledged Lawrence was from San Jose, but testified Lawrence admitted being a Norteno since he was 13 years old, and explained gang members do not commit offenses with someone they did not trust. “You just don’t hand them a gun. They wouldn’t hand [Lawrence] a gun and say, Okay. Let’s go do a robbery at AM/PM. So two Nortenos from Modesto trust one from San Jose, well, enough to hand them a gun and trust, him to go in and do a robbery with them and trust him not to rat on them. And so there’s some schooling going on there.” “That’s how they gain trust with each other, especially when you have gang members from different sets of a gang coming together ....”
Brocchini conceded that the majority of non-gang robberies are drug-related offenses, but testified that most “cranksters” are not Nortenos because the Nortenos have rules against members using methamphetamine. If a Norteno uses drugs, he will continue to be in the gang but will receive discipline for it. The large majority of Nortenos are Hispanic males between 15 and 30 years old.
Expert Testimony on Gangs
Detective Richard Delgado testified as the prosecution’s gang expert and discussed his prior interactions with young gang members in the county jail. He often talked with and interacted with them, and they discussed their activities in the gang as part of their bravado of being involved and gaining respect. Delgado testified the young gang members “[a]bsolutely” know members of their gang have engaged in criminal activities and know the history of their gang’s activities.
We will discuss appellants’ objections to Delgado’s expert testimony in section IV, post.
Detective Delgado explained the Norteno gang had been in Northern California for decades and acted under the umbrella of the Nuestra Familia prison gang. “You can have a Norteno from Ceres sharing the same philosophy with a Norteno from up at Pelican Bay or from San Ramon or Santa Rosa. They all have the same tattoos, same philosophy, listen to the same leadership, all look for the directions of to the top, which is Nuestra Familia. So it’s all the same philosophy, all of the same beliefs, just different cities all referring to themselves as Nortenos, thus the Norteno gang.”
As mentioned ante, Robert Gratton was one of the leaders of Nuestra Familia, and his son was often seen with Jose. Detective Delgado testified that Robert Gratton became concerned that young Nortenos were fighting among each other. Gratton was involved in Nuestra Family’s production of a rap CD entitled “Generations of United Nortenos,” also known as “GUN,” performed by “Sir Dyno.” The CD was distributed to the Norteno street gangs and directed them to unite as Nortenos instead of fighting within themselves, and direct all their attention against the rival Surenos.
“The CD was produced as a direct order from Nuestra Familia, which is the overseers of the whole Nortenos criminal street gang ... in every city within California. And it was an absolute direction from them that you are to cease fire, not commit violence on any of the Nortenos. You are to get along and unite. ... You’re to unite and put away all problems, all arguments between each other immediately and concentrate all your efforts on committing crimes and killing rival gang members because those are the real threats coming up.”
Delgado testified the CD was distributed by North Star Records from Tracy, and Robert Gratton was the company’s partner. The CD had been found in the homes of Norteno gang members all over Northern California, and the result was a decrease in violence within the Norteno gangs. The lyrics refer to “having a gun and robbing, putting the gun in people’s face and basically watching them be terrorized and the thrill that you get from doing it, the adrenaline rush.” Delgado testified that in just a few months, Robert Gratton made $50,000 from distributing about 2,500 CDs.
On cross-examination, a defense attorney tried to show the “GUN” rap song was innocuous when compared to Johnny Cash’s song, “Folsom Prison Blues,” in which Mr. Cash sang: “I shot a man in Reno just to watch him die.” Defense counsel asked whether Mr. Cash performed the song with the intent to incite others to murder people. Detective Delgado replied Mr. Cash, his songwriters, and/or his band did not have common identifying signs, symbols, or colors, or associate on a regular basis to commit crimes.
Delgado testified the Modesto Police Department used six criteria to determine if someone was a gang member: associate on a regular basis with gang members and associates; proclaims himself to be a gang member; identified as a gang member by two or more corroborating sources, such as a relative, another gang member, or a probation officer; wears, displays, or possesses physical evidence of gang membership such as clothing, tattoos, drawings, or photographs of other gang members; uses words, phrases, terms, hand signs known to be specifically associated with a gang; and identified in a judicial proceeding as a gang member. The police department requires a minimum of two criteria for someone to be considered a gang member. Delgado explained that as a result of anti-gang legislation, a lot of Norteno gang members have become “pretty savvy” and avoid wearing solid red and being “flamed out,” and have toned down their colors to avoid attracting the attention of law enforcement officers.
Delgado testified there were at least 3,000 documented Nortenos in Stanislaus County, and over 10,000 in Northern California. The Surenos were the Nortenos’ rivals. There were more Nortenos than Surenos in Stanislaus County, but the number of Surenos was increasing and nearly equal to the Nortenos.
Delgado testified the Norteno gangs had common signs and symbols, including the color red, demonstrated through clothing, hats, belts, bandanas; the letter “N” as displayed in jewelry; and the number 14, since “N” was the 14th letter of the alphabet, represented by one and four dots, or Roman numerals for 1, 4, and/or 14. The Nortenos also used the “Huelga Bird” symbol, originally used by Cesar Chavez’s farm labor movement, and had twisted it to their own meaning as a gang symbol. Some Norteno tattoos depicted the bird with four feathers instead of the original design with five feathers. The Nortenos did not use the Huelga bird as just a common gang tattoo, but as a symbol that the gang member had done something very significant for the gang, and it was usually on high ranking gang members. A gang member with a Huelga bird would be asked by other gang members to justify the tattoo or face retribution.
Delgado testified there were several different sets of gangs under the Norteno umbrella in Modesto but “98 percent of them all get together. They’re under one big association,” and the various Norteno sets “all associate together.” A gang member could move into another neighborhood and claim another Norteno set, but keep his tattoos from his prior clique. “It’s all under the Norteno’s umbrella. It’s just different little subsets that all get along for the common cause for Nortenos.” Delgado testified the Nuestra Familia prison leadership had been broken up through various prosecutions, and there was some fighting within the Norteno group to assume overall control and leadership. However, Norteno gangs were generally united and got along regardless of what area they were in.
The Norteno subsets in Stanislaus County included DSSM, Deep South Side Modesto; DSSN, Deep South Side Nortenos; DSSY, Deep South Side Youngsters; WSM, West Side Modesto; WSBZ, West Sidz Boyz; VMB, Vernon Block Nortenos; BRN, Bed Rock Nortenos; DMC, Dead Man’s Curb; NSB, North Side Boyz; ESM, East Side Modesto; BWST, Barrio West Side Turlock; WCN, West Coast Nortenos; and WWR, Wicked West Riders. WCN operated in the southeast portion of Modesto, and WWR operated on the west side.
Detective Delgado testified that gang members earn respect within the gang by committing crimes, they gain more respect and fear by committing more serious crimes, and show “they’re somebody to be reckoned with if you cross them.” The primary activities of the Norteno gang in Stanislaus County included a great deal of assaults, such as drive-by shootings, hand-to-hand fights, and stabbings, robberies, auto thefts, drug sales, and burglaries.
Delgado testified to numerous predicate offenses committed by active members of the Norteno gangs in Stanislaus County, based on his personal knowledge and investigation of the offenses. Jose had four prior burglary convictions in February 1998, June 1998, October 1998, and March 2000. Willie had two prior burglary convictions, in May 2001 and November 2001. Vincent Gonzalez, a member of the West Side Modesto Nortenos, was convicted of felony assault with great bodily injury, and the substantive gang offense in December 2002, for stabbing a Sureno member. Juan Galvan, a member of the West Coast Nortenos, was convicted for possession of a controlled substance for sale in February 2003. Marty Johnson, a documented Norteno member, was convicted of car theft in May 2004. Albert Briseno, a member of the West Side Boyz, was convicted for carjacking and the substantive gang offense in March 2005. Albert’s brother, Andrew, is a West Coast Norteno, and they both associate with the West Coast Nortenos and West Side Boyz.
Delgado testified all the appellants in this case had Norteno tattoos, and they had explained the meaning of these tattoos to law enforcement officers on prior occasions. On Willie’s stomach, he had “BWSN,” which Willie said meant “Barrio West Side Norteno.” Also on his stomach, he had tattoos of “player” and “life,” a common Norteno gangster code or saying. On Willie’s back, he had “West Coast Trippin,’“ and one dot on his right hand and four dots on his left hand representing 14. On Willie’s arm, he had “one” and “four,” representing 14, “Brown Pride,” which was an “old school” representation of Latinos, and the Huelga bird.
Delgado testified Jose had a tattoo of “WCN” prominently on the back of his head, and “CA” on his neck, representing West Coast Nortenos. Jose had “WCN” in large letters on his stomach. On the right side of his neck, he had “Bad Boy” under his ear, referring to his Norteno lifestyle. He had “Sinful thoughts” across his neck, which meant he was not leading the right kind of life. He had tattoos of “West Coast Nortenos” on his forearm, one dot on his left finger, and both WCN and WSM, for West Side Modesto.
Delgado testified Lawrence had “more significant tattoos,” including a Mongolian warrior and “SJ” on his left lower arm, a large “B” on the right side of his chest, which Lawrence said meant Barrio East Side San Jose, a large “BES” across his stomach, which meant Barrio East Side, a large Huelga bird on his stomach, a “bumble bee” on the side of his neck, which he said meant “B” for Barrio East Side, and the letter “B” on the other side of his neck. He had tattoos on his legs of “B” for Barrio, “XIV” for 14, a Mongolion warrior, and the numbers one and four. Lawrence had lots of tattoo collages on his arms, with the numbers one and four.
Detective Delgado testified that he did not believe Jose’s claims that he had dropped out of the gang. Delgado explained that a true dropout usually approaches law enforcement officers and debriefs them about their prior activities, and would refuse to be housed in custody with members of their former gang. The police seized photographs which depicted Jose with other Nortenos. In addition, Jose had been acquiring additional Norteno tattoos from his first contact with the police in 2003 to the time of his arrest in this case, he admittedly slashed a rival gang member, and he continued to associate with active members of the Norteno gang. The police contacted Jose about one month before his arrest in this case, and he was wearing a red hat, shirt, and shoes.
Detective Delgado testified about his investigation of Lawrence’s background in San Jose, and determined Lawrence was an active and documented member of BES, Barrio East Side Norteno street gang in the White Road area of San Jose. There were 24 active members of BES. In April 2005, a San Jose police officer contacted Lawrence and asked what gang he was with, and Lawrence said he was with “‘BES, Barrio East Side,’” he was a Norteno, and he had been with the gang for four years. In May 2005, a San Jose officer contacted Lawrence while he was with other documented members of BES, and Lawrence again said he claimed Norte and BES.
Detective Delgado was present for Lawrence’s postarrest interview, and noted that Lawrence described his partner, “Mike,” having a tattoo with four dots, which indicated Norteno gang membership. Lawrence said he was a Northerner and claimed Barrio East Side, which was a validated gang in San Jose. Lawrence said he gave the robbery proceeds to a girl named “Cheena,” she gave some of the money back to him, and that he got the money for everyone. Delgado testified Lawrence’s statement was significant because it showed the robberies were committed to benefit the gang by giving back the robbery proceeds, but Delgado did not believe the other person’s name was actually “Cheena” or that person was a woman. “I think it was [a] male ... probably a shot caller” and Lawrence could not snitch on that person or he would “really be dealt with.”
“... [F]requently Norteno gang members, when they associate together and commit specific crimes, especially crimes like burglary and robberies, that they are directed to give the money to a higher up, who takes all the money and will disburse it out amongst the gang and use it by the gang. The persons who actually committed the crime sometimes will get no money at all, sometimes will get a kickdown, but the money itself was given to somebody for to be spread out where it should be directed, whether it’s buying weapons, buying narcotics, sending it up to prison to higher ranking members of the gang in prison or jail system.”
Delgado explained that when the Nuestra Familia prison leadership was prosecuted and broken up, some of the “generals of Nuestra Family” had in excess of $50,000 and $60,000 on the books, which had been provided “by gang members all over California.”
Detective Delgado testified Lawrence admitted he knew “Mug,” who was actually Paul Lopez. Delgado explained that Paul Lopez was the brother of Jose and Willie. At the time of trial, Paul Lopez was in custody on another matter and was considered a “shot caller,” someone who ran the gang in his custodial unit. During the investigation in this case, the police discovered photographs of Lawrence with Paul Lopez. When Willie was arrested, he was driving a white truck registered to Paul Lopez’s wife. Lawrence had Willie’s cell phone number in his cell phone. Delgado testified such contacts were significant because it established ongoing association among active Nortenos.
Detective Delgado was aware of Lawrence’s repeated claim that he committed the robberies with “Mike,” that “Vince” was driving the white truck, and that Lawrence never said he knew Jose or Willie, or that Willie was driving the truck. Delgado testified Lawrence was trying to be “a good soldier” and protect the other participants.
“… Frequently ... you get somebody that’s going to confess about the whole thing, and he may confess and give up his partner, but he’s going to use a different name, different description entirely to throw the police off.
“I mean, it’s one thing to confess to the police yourself, but you’re not going to bring somebody else into it … especially if you’re a gang member, because once you snitch, you’re no good, period. And you’re not just no good like they don’t want to associate with you anymore, you’re no good as in there’s a green light on you, meaning they’re going to stab you, shank you, kill you, do something to pay you back for what you did to the gang.”
Delgado explained it was “like a badge of courage” to take the fall and cover up for the other gang members involved in the crime. Lawrence was “being a good soldier . He didn’t give up his partners. He took all of the blame himself. He didn’t implicate anybody else like he’s been trained to do.” In such a situation, a gang member would “earn some stripes” for the benefit of the gang by keeping his fellow gang members on the street, “to continue to commit crimes ... they’re still able to do crimes to raise money on the street, which will be in turn kicked back to you in jail or in prison to support you and your family while you’re in custody.”
Delgado testified Lawrence had numerous gang tattoos on his arms and stomach, and he asked Lawrence whether the intricate artwork was intended to cover up some of the gang tattoos. Lawrence replied the elaborate tattoos were not cover-ups and specifically explained the tattoos consisted of a collage of a one and four. Delgado noted that at the end of the interview, Lawrence repeatedly refused to be placed in protective custody, said he was an active member, and insisted placement with the Nortenos, which was contrary to any claim that he was a dropout. Delgao explained it would be a “great insult” to place an active gang member in protective custody since other gang members would assume that person had become an informant.
Delgado testified the police were able to obtain information from Lawrence’s cell phone which consisted of photographs, sound bites, and videos of Lawrence hanging out with other Norteno members, displaying and wearing red bandanas, and flashing Norteno signs. In one photograph, Lawrence was “masking up” in a red bandana, showing his gang tattoos, and posing as if he was about to commit a crime. Such a photograph was taken to brag to the other Nortenos. Another photograph depicted Lawrence holding a gun in a menacing manner, wearing a red bandana, and showing some of his tattoos, as if he were about to commit a robbery, which again demonstrated his practice of intimidation for the gang’s benefit. There were photographs of Lawrence wearing red, and posing with Paul “Mug” Lopez, the brother of Jose and Willie and a documented Norteno, throwing gang signs and wearing gang colors. Delgado believed these images demonstrated his gang-banging lifestyle, and could be used to vouch for himself with other homeboys with other Norteno gangs.
Delgado testified that when Lawrence was arrested, shortly after the last robbery, he was wearing sweatpants that lacked belt loops, but he had a black canvas belt wrapped around his waist with the letter “N” on the belt buckle, signifying Nortenos. When Willie was arrested in the white truck, he was wearing a red shirt, which was significant because it represented the gang. When Jose was arrested the next day, he was wearing pants with a red band.
Delgado was also aware of Jose’s claims that he was a dropout from the Nortenos, and testified his accumulation of tattoos contradicted that claim. Jose’s records indicated he continued to add more Norteno tattoos since the time of his first field interview, even as he claimed to be a dropout. In March 2005, Jose admitted he acquired a black star tattoo for stabbing a rival Sureno at CYA, yet he had previously claimed to be a dropout. In addition, a dropout would not be allowed to commit crimes with other active Nortenos, as in this case.
Delgado testified all three appellants were active members of a Norteno gang at the time of the robberies. “[I]f somebody’s merely an associate of a gang, they would not go on a robbery spree with another gang member or go out to commit auto thefts or burglaries with somebody. The gang would not allow somebody that was just a hanger-on. They need somebody who’s trusted, jumped in, a fellow brother in the gang to do this.”
As to Lawrence, Delgado’s opinion was based on his prior contacts with the San Jose Police Department, his admitted gang membership, his admitted knowledge of his brothers’ gang-banging activities, his admitting knowledge that other gang members were in prison for committing crimes, wearing gang colors, gang tattoos, and continued association with other active members of the Nortenos. As to Jose, Delgado’s opinion was based on his long history of being involved with the Norteno gangs in Modesto, his admitted gang membership, his continued association with other Nortenos, despite his claims of being a dropout, his display of gang colors and symbols, and his black star tattoo for attacking a rival Sureno. As to Willie, Delgado’s opinion was based on his association with other Nortenos, his prior admission of being a Norteno, and his involvement in the final robbery with two other Nortenos by driving the get-away car. Delgado testified Jose and Willie Torres had been involved in other gang crimes. Their older brother, Paul Lopez, had been a gang banger with the Nortenos for many years, he knew Lawrence’s family in San Jose, he provided the vehicle for the last robbery, and he was a shot caller for the Norteno gang in jail.
“So based on all of those factors as well as the multiple crimes they’re involved with in these cases, gives me that opinion that they had knowledge that the gang participates in crimes. Not only that, but, I’m sorry, several of their friends involved within the gangs, whether it’s Wicked West Rid[ers] or WCN, have been previously convicted on several felony charges with felon predicate type of crimes.”
Detective Delgado testified the appellants committed the offenses in this case to further the felonious activities of their gang. As to Jose and Lawrence, they committed the robberies with other Nortenos, they used masks, showed red bandanas, and carried weapons. They worked as a team with each person having a specific job, and Willie had the specific job to drive the get-away car in the last robbery. “You’ve got people with weapons doing specific jobs all to benefit the gang, acting together.” Delgado believed Willie had more history in the gang than Jose and Lawrence, and would be considered the OG, based on his role in driving the getaway vehicle, “making sure that the crime was committed correctly, parking down the street. In the long process, they were to go in with guns, with masks and commit these crimes, come running out to his car where he would make sure they got away.”
Delgado explained appellants committed the robberies in this case to benefit their gang:
“[G]ang members typically, based on my experience, do not have legitimate jobs, so they rely on criminal activity, in this case robbery, to supply the money, alcohol, food, whatever it is to support themselves. They use the money to purchase weapons, so the money obtained in these robberies could have been used to purchase drugs, marijuana, weapons, and other things, pay rent, to benefit the gang. That’s just one reason on how it benefits the gang.
“Another way it benefits the gang is the fear factor. Gangs operate on fear, intimidation and respect. They believe ... the more you fear me ... is the more you respect me.
“So by the [appellants] in this case, Jose Torres going in with a weapon, with a mask, the tremendous fear that that clerk or those clerks in that case and the victim inside who had money taken have to live with knowing that, if there is a gang member on the street, they’re always going to cower down. They’re always going to be fearful of the gang. [¶]…[¶]
“... It benefits the gang in many ways, the fear, respect. People are going to fear Norteno gang members now. Articles will be in the newspaper that gang members went in and committed these crimes. They may quit work. I mean it’s happened numerous times where I’ve investigated where clerks just quit. They don’t want to deal with that anymore.
“The other benefit, obviously the cash, the beer, whatever proceeds they got benefit the entire gang because it’s shared with the gang, it’s prerequisite, any spoils you get from your crime.”
Detective Delgado further testified to his opinion that appellants committed the robberies at the direction of the Norteno gang, and that the Nuestra Familia hierarchy had given specific directions to the various Norteno street gangs to unite as a gang, “which these individuals have done, unite as a gang. They have committed the crimes as set forth in that CD [distributed by Nuestra Familia at Gratton’s direction], talking specifically to rob, to get your guns, to go out and rob, not once, but twice, and how your adrenaline needs to be pumping, how it’s exciting to rob and accomplish that need.”
Delgado conceded that a gang member could commit a crime for his own personal benefit rather than for the gang’s benefit. In this case, however, appellants’ actions during the robberies were in association with and promoted their gang, because they were active Norteno members clearly working as a team to plan, commit, and flee from the crimes together. Appellants “didn’t just commit one robbery. It was active gang members committing robbery, after robbery, after robbery together, providing a vehicle by Paul Lopez to commit these robberies, a get-away driver.” The robbers “dressed up in masks and red bandannas representing the gang, that’s all brought in to further the gang, to further the Norteno criminal street gang.” Delgado explained these robberies clearly furthered the Norteno gang because “[i]t’s for bravado. He’s going to brag to all the homeboys, look, what I’ve done. Look how it’s done, you guys do this. It further promotes the gang.” “For them to commit more, to develop, you know, bravado, courage, hey, I’ve done one, we can do another, didn’t get caught, let’s do another one. Builds courage up in the gang as well.” The money obtained from such robberies “all goes uphill” to higher ranking members of the gang.
Delgado cited Lawrence’s postarrest interview, when he said he gave the robbery proceeds to “Cheena” and she gave him a cut, and compared the system to paying taxes to the gang. Delgado believed Lawrence’s description was accurate except for the identity of the person who collected the money. Delgado explained that based on his knowledge of the Norteno gangs, when a Norteno commits a burglary or robbery, “he’s required to give some of those products to somebody higher than him in charge, who in turn sells them for whatever money is put on books in the jail to higher ranking gang members. And some of it is sent up to the prison system. [¶] Now, in this case here, [Lawrence] committed robberies with some other Nortenos. [Lawrence] has got brothers in prison. So I don’t doubt that he’s sent money up to his brothers to support his brothers in prison. That’s directive of the gang.” While the money from these specific robberies may not have been used in such a manner, such a situation was “frequently what they do by committing robberies, burglaries, selling the merchandise to raise money to put on books. You can’t put alcohol and cigarettes on books, but you can put cash on books.”
“... [B]ased on my experience and based on what [Lawrence] was doing, they were definitely putting in some work, committing these robberies and giving the money to somebody. [¶] You don’t go and commit this many robberies in locations where there’s surveillance equipment where you can see it everywhere, masked, unmasked, just for the heck of it. You know you’re going to get caught. You’re putting in work. You’re trying to be a good soldier.”
Delgado testified that by giving back a portion of the robbery proceeds, the gang members keep the gang going. Gang members usually do not have legitimate jobs and instead rely upon these type of crimes to benefit the entire gang by sharing the proceedings with everyone.
“… It benefits the gang whether it’s purchasing weapons, drugs, to re-up on drugs to sell or make more money to finance Nortenos parties, drugs, alcohol at these parties, pays their rent, they put money on books of their family members who are gangsters, friends who are gangsters. You’re required to support your homeboys who are in custody.”
In addition, the gang member’s use of any type of force or fear on the victims benefits the gang and increases the Nortenos’ reputation as a group to be feared.
Delgado further explained the multiple robberies were committed for the benefit of the Nortenos because they were committed by two documented Nortenos, working together as a team, with another Norteno driving the getaway car for the last robbery. They did not commit “just one simple robbery, but five total robberies together, associating together, and committing the robberies to benefit, to support the Norteno gang.” The robbers did not just wear solid black, but were wearing “kind of tools of the trade and items of clothing to represent their gang,” including red bandanas and Lawrence’s “N” belt. “[T]hey’re wearing colors to represent their gang. They were committing these robberies as active gang members.” The robbers did not keep the robbery proceeds for themselves, but it was shared with other members of the gang, “so thus committing these crimes together, they benefited the gang.”
“[C]learly when you commit a robbery with another gang member and you planned it out, one’s driving and one’s watching the door and one’s got the gun on the clerk, it’s clearly that they’re in furtherance of and they’re assisting each other during the commission of the crime.”
On cross-examination, defense counsel attempted to show that Delgado’s expert testimony was simply a repetition of a report prepared by another officer in an unrelated gang case involving different offenses and participants. Delgado disputed that his testimony was similar to the report, aside from summarizing the Nortenos’ activities in Stanislaus County, and that the suspects in both cases committed their offenses for the benefit of their gang.
Defense Evidence
Jose, Willie and Lawrence did not testify. Jose did not call any defense witnesses.
Willie called Daniel Vasquez as a defense witness. Vasquez was a retired warden with the California Department of Corrections (CDC), and testified as to his knowledge of gang activities and Willie’s prior criminal activities. Willie had been in CDC and received a Level I placement, which meant there was no gang validation information for him of any sort. He was released on parole and received minimal supervision, and had been on parole for over two years when he was arrested in this case.
Vasquez testified there was no Norteno street gang, but there were individuals who described themselves as Nortenos from small neighborhood gangs. Instead, Norteno was merely a geographical identification. Vasquez testified there were two validated gangs within CDC which were from Northern California: Nuestra Familia and Northern Structure. Vasquez testified it was impossible for Nuestra Familia to control the thousands of street gang members from within the prisons.
In Vasquez’s opinion, the offenses in this case were not committed to benefit the Norteno street gang. There was “no Norteno criminal street gang. There’s no known leader. It’s a large number of people who make up people who identify as Norteno, and it just doesn’t exist.” Vasquez conceded the offenses could have been committed to benefit a small neighborhood gang.
On cross-examination, Vasquez conceded the Norteno gang has more than three members, common signs and symbols of “N,” “14,” and one and four dots, had been involved in criminal activities, and members of that gang have been convicted of burglaries, robberies, grand theft, auto theft, carjacking, possession of drugs for sale, and felonious assault. Vasquez was aware of validated Norteno subsets, and there were hundreds of different sets of smaller Norteno gangs in Northern California, but there was no single ongoing organization known as the Norteno criminal street gang. Vasquez conceded each set would meet the statutory definition of a criminal street gang, but insisted there was not a single Norteno prison or street gang with 20,000 members. Vasquez testified the only validated northern gangs in CDC were Nuestra Familia and Northern Structure. Vasquez also conceded all three appellants had previously claimed Norteno membership, they had extensive Norteno tattoos, and they were depicted in photographs with other gang members and throwing gang signs.
Lawrence called Gary Zimmerman as a defense witness. Zimmerman was a psychologist with CDC and the parole department, and also had a private psychology practice. Zimmerman reviewed the transcript of Lawrence’s postarrest interview, and also spoke to Lawrence about his condition during that interview. Zimmerman did not watch the videotape of the interview.
Zimmerman testified that Lawrence said he had been using PCP, methamphetamine, and alcohol in the days leading to his arrest, and he had been up for a couple of weeks. Lawrence clarified, however, he had not used PCP for a day and a half before the arrest. Lawrence said he was feeling the effects of the drugs during the postarrest interview, based on his rambling speech and inability to sit still. Zimmerman testified to his opinion that Lawrence was a heavy drug user and addicted to drugs at the time of his arrest. Lawrence admittedly dealt drugs to support his use, bought drugs from other people, missed work because of his drug use, and lost his only job because of repeated drug use at work. Lawrence’s family had repeatedly urged him to stop using drugs and sent him to a drug treatment program, but he failed to comply with the program. He was also sent to drug diversion as part of a criminal case, but he failed to attend and failed a drug test.
On cross-examination, Zimmerman conceded he did not have any evidence whether Lawrence was under the influence of narcotics during the postarrest interview, aside from Lawrence’s own statements about his condition. Lawrence told Zimmerman that he wanted to get home by robbing the store, he ran when he saw the police, and he was a gang member and did not feel he could beat the enhancements.
Lawrence also called his mother, Patricia, as a witness. She testified that Lawrence lived at the family home in San Jose, and other family members lived in Oakdale. Her oldest son had been to prison a few times. She asked Lawrence to move out and live with his brother, Robert, because Lawrence was using drugs. Robert had previously been involved in gangs but had never been in prison. He turned away from that lifestyle, and was married with a family and had a job. Lawrence enrolled in a drug treatment program but never finished it. Robert asked Lawrence to leave the house because of his drug use. Patricia knew that “Mugs” was a friend of her older sons. Patricia admitted Lawrence’s uncles and brothers had been involved in gangs, but claimed he was too young to understand.
Patricia testified that in May 2005, Lawrence was living with her and working, but they had a fight about whether he could go to a party in Modesto. Somebody picked up Lawrence, he left San Jose, and they never saw him again before his arrest. She did not believe that he intended to stay with their family in the area. About one week after he left, Lawrence called her from Modesto and said that someone was going to stop by her house and pick up his clothes. Patricia refused and ordered him back to San Jose because they were planning a family trip to Disneyland. Patricia testified she could “tell by his voice on the phone” that he was using methamphetamine, and she knew he was heavily involved with drugs again.
Closing Arguments and Jury Questions
The closing arguments and jury questions are included here because appellants raise numerous issues of ineffective assistance and court error based on these issues.
In closing argument, the prosecutor, Mr. Maner, summarized the evidence which supported the charges as to each appellant, and asserted the surveillance videotapes from the stores supported each robbery count—that Jose and Lawrence committed the robberies and switched roles between the robberies. As for Lawrence’s postarrest statements, the prosecutor noted that Lawrence admitted he committed count I, and said he gave the money to “Cheena” and she gave some back to him, but “we’re not exactly sure who they are.” As to count II, the prosecutor noted that Lawrence also admitted committing that offense, and “that he took the money and he fled with his crime partner, who the evidence shows was Jose Torres,” and he admitted again turning the money over to someone and getting some back. As to counts III and IV, the prosecutor cited to the surveillance videotape as showing that Lawrence and Jose “both had a gun in commission of that crime,” that both robbers walked into the store together, and the “[e]vidence shows” that Lawrence was the man with the mask, and “[t]he evidence will show[]” that Jose wore the hat and red bandana. The prosecutor discussed the last robbery and the officers’ observations of the white truck waiting near the store, their attempted chase of the two suspects on the canal bank, and the apprehension of Lawrence in a nearby backyard, Jose’s appearance on the roof of a nearby house, and the discovery of Willie as the driver of the white truck.
The prosecutor argued Lawrence admitted his culpability during his telephone conversation with his father, particularly when he told his father that he did it “‘with my homies from out here.’” The prosecutor argued Lawrence’s statement to his father was significant because he was from San Jose while the other two defendants were involved with Stanislaus County gangs. “So [Lawrence] is saying, ‘I did it with my homies from out here,’ is a probative piece of evidence.”
The prosecutor also addressed Lawrence’s postarrest admissions to the officers that he committed the four convenience store robberies. “And each of these defendants in these robberies are identified as being the same people as the ones that were in court from a large body of evidence.” The prosecutor cited the identification evidence from the robbery victims and witnesses, based on their faces, physical appearance, and distinctive tattoos.
The prosecutor turned to the elements and evidence as to the gang allegations, and urged the jury to listen to the court’s instructions on those allegations. The prosecutor cited to the extensive evidence as to each appellant’s active membership and involvement in the Norteno gangs. The prosecutor argued the evidence established that appellants were gang members who acted as a team in committing the robberies. The prosecutor asserted appellants committed the robberies for the benefit of the gang: “We heard [Lawrence] talking about how he shared their money. We have evidence [Willie] was the get-away driver and was helping direct this activity.”
Lawrence’s defense attorney, Mr. Wentz, conceded that the surveillance videotapes made it “pretty clear” that Lawrence and one of the Torres brothers was involved in the four convenience store robberies, and instead asked the jury to focus on whether the prosecution met the burden of proof on the gang offense and enhancements. Counsel argued there was no evidence these specific robberies were committed for the benefit of any particular gang, and cited to the testimony of Willie’s defense witness, Vasquez, that there was no particular Norteno gang. Counsel argued the robberies were not as sophisticated as claimed by the prosecution because they were not wearing masks for the some of the robberies even though all the stores had surveillance camera. Counsel also argued that Lawrence had a “horrendous drug problem,” suggested Lawrence appeared “a little loony” and did not make sense during his postarrest interview with the officers, and cited to Dr. Zimmerman’s testimony about his drug addiction.
Jose’s attorney, Mr. Yeoman, challenged the prosecution’s evidence as to the identity of the robbery suspects as to each count. Counsel attacked the reliability and memory of all the victims and witnesses when they described and allegedly identified Jose as one of the suspects. As to count I, the store clerk was “obviously very scared” and focused on the gun, it “wasn’t even able to give a very good description” of the suspects, and “it is not until almost one year later that she identifies” Jose as the gunman. Counsel attacked the testimony of the clerk in count II, because he was not able to describe the person who was standing at the door wearing mask, as Lawrence committed the actual robbery. In addition, the clerk thought the robbers left in the Jeep Cherokee instead of the older model truck which the prosecution relied upon. “So the whole premise of the case against [Jose] on that second robbery is that, well, because he must have done these other three robberies, he must have been that person that’s standing at the doorway.”
Jose’s counsel turned to counts III and IV, and that the prosecution’s case against Jose was based on the store clerk’s identification of only part of a tattoo, but the clerk could not identify anyone by their face. As to the last robbery, the store clerk identified Jose, but counsel argued that identification was suspect because the clerk was not sure if Jose’s tattoos were the same as the suspect’s tattoos. The witness in the store also identified Jose but admitted she was very nervous and trying not to look at the suspect.
“… So we don’t have a lot of identifications where somone’s completely looking and ascertaining what’s going on around them. These are people that are also under a lot of stress, and sometimes you miss things when you’re under a lot of stress.”
Jose’s counsel acknowledged that Maria Santana identified Jose as the man who jumped off the roof, but argued that she failed to identify Jose from a photographic lineup shortly after the incident, and did not identify him until almost a year later. “Again, just common sense, your memory is not going to be fresher the longer you wait.”
Jose’s counsel wondered why Paul Lopez, the owner of the white truck who was depicted in Lawrence’s cell phone photographs, or the other people in those photographs, were not part of the investigation or included within the photographic lineups shown to the victims and witnesses and queried: “[D]oesn’t it make it suspicious they hone in on [Jose]? They’re not even interested in looking at the owner of the truck.” Counsel also attacked the lack of any evidence that a real gun was used for all the robberies and argued the firearm enhancements were subject to reasonable doubt.
Counsel also attacked the evidence as to the gang allegations, and argued there were “some problems” with it.
“… A lot of it is based on what [Lawrence] says in the interview. Now, the testimony was that he is fairly honest. That is … the stuff he says about his role in the crimes is honest, and the stuff that is not about his role in the crimes, it’s dishonest. Well, being fairly honest is like being fairly pregnant. You either are honest or you’re not. Right there, that’s not reliable. That proof they have there was actually money exchanging hands and testimony by [the] gang expert that particularly gang members transfer money from proceeds of the crimes they commit, but we don’t have anybody actually saying that they watched any of these three individuals pass money to anyone else. We don’t see any of these transfers. We don’t see these notes from the prison gangs. We don’t see notes from higher-ups directing them to commit these crimes.”
Jose’s attorney argued there was no evidence the robberies were committed to benefit a gang because the robbers did nothing during the crimes to show the clerks the offenses were gang-related, and disputed the prosecution’s assertion the robberies were sophisticated gang crimes.
Willie’s attorney, Mr. Baker, reminded the jury that Willie was only charged with being the getaway driver for count V, the last robbery. Counsel argued Willie was only arrested because he was driving his brother’s car in the area that night, and there was no evidence that he aided and abetted the last robbery. Counsel argued Willie could have been an accomplice after the fact, if the robbers called him for a ride after the crimes and he did not know what had happened, but the prosecution did not charge him with that offense. Counsel argued there was reasonable doubt as to whether Willie dropped off the suspects at the store, knew what they were going to do, and waited to pick them up. Counsel agreed with the other defense attorneys that the more serious issues were based on the gang allegations, reviewed the difference between the substantive gang offense and the gang enhancement, and argued there was no evidence Willie willfully assisted any gang when he was driving in the area.
In rebuttal, the prosecutor reviewed the elements for the gang enhancements, argued the evidence supported the enhancement, and attacked Vasquez’s testimony that there was no Norteno gang.
During the deliberations, the jury requested to see the surveillance videotapes from all the robberies, and the testimony of prosecution witness Maria Santana, and defense witnesses Gary Zimmerman, and Daniel Vasquez. The jury requested to see the surveillance videotape for count II, the Modesto Stop-and-Save with Adrian Niave, and the “personal robbery” of Mazloumi, as charged in count IV. The jury also asked several questions about the instructions on the gang enhancements. The jury advised the court it could not reach a verdict for count IV, then asked to see the videotape for the “personal robbery of the store clerk giving his wallet.”
Verdicts and Sentences
As set forth ante, Jose and Lawrence were convicted of the robberies of the four markets, as set forth in counts I, II, III, and V, with firearm and gang enhancements found true. The jury could not reach verdicts as to Jose and Lawrence on count IV, the robbery of Mazloumi’s personal money. Willie was convicted in count V for the Standiford AM/PM robbery, based on his participation as the getaway driver, also with firearm and gang enhancements found true.
Jose was separately convicted of count VI, being a felon in possession of a firearm (§ 12021, subd. (a)), with a gang enhancement. Jose and Lawrence were convicted of count VII, participation in a criminal street gang (§ 186.22, subd. (a)) and that they both personally used a firearm (§ 12022.5, subd. (a)). The jury was unable to reach a verdict as to Willie for count VII, participation in a criminal street gang.
The court declared mistrials on counts IV as to Jose and Lawrence, and count VII as to Willie, and the prosecution did not seek retrial on those charges.
Appellants received the following aggregate terms: Jose: 42 years eight months; Lawrence: 42 years eight months; and Willie: 14 years.
Jose’s Appellate Issues
Appellants have filed separate briefs, and they have also requested to join the issues raised by the other appellants, to the extent the issues are applicable to each of them. We have consolidated the appeals on our own motion. We will address the appellate issues in the sequential order presented by the trial record for the sake of logic, rather than in the order in which the parties raise the issue in their briefs, and note which issues are applicable to the other appellants.
In Jose’s appeal, he contends defense counsel was ineffective for failing to object to the admission of Lawrence’s postarrest statements, because the statements were by a nontestifying codefendant and implicated Jose on the robberies, and was thus inadmissible pursuant to People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123 (Aranda-Bruton). Jose claims counsel was also ineffective for failing to object to Lawrence’s statements as inadmissible hearsay under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and the error was prejudicial.
Jose next contends that based upon Lawrence’s postarrest statements, the court had a sua sponte duty to instruct the jury on accomplice testimony and corroboration, because Lawrence was an accomplice as a matter of law and his statements were introduced as substantive evidence of Jose’s guilt.
Jose contends the court should have granted his pretrial motion to bifurcate the gang enhancements and the substantive gang offense in count VII.
Jose raises a series of ineffective assistance claims based on the testimony of Detectives Brocchini and Delgado. Jose argues defense counsel should have objected to Brocchini’s testimony as a robbery expert because expert testimony was not necessary on this issue. Jose also argues counsel should have objected to Brocchini’s testimony about the culture and habits of gangs since Brocchini was not qualified as the gang expert in this case. Jose separately challenges Delgado’s testimony as the prosecution’s gang expert, and argues defense counsel should have objected to Delgado’s alleged impermissible opinion testimony as to Jose’s guilt or innocence.
Jose contends his conviction in count VII for active participation in a gang, and the gang enhancements attached to the other substantive counts, are not supported by substantial evidence and must be reversed.
Jose asserts the court failed to properly respond to the jury’s questions about the elements of the gang enhancements, and the court improperly ordered him to pay the probation report preparation fee.
Lawrence’s Appellate Issues
In his brief, Lawrence contends the gang enhancements must be reversed because the court failed to grant the defense request to clarify CALCRIM No. 1401, the instruction on the gang enhancement, pursuant to language in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia).
Lawrence contends the court improperly ordered him to pay the probation report preparation fee, and a clerical error in the minute order and abstract must be corrected.
Willie’s Appellate Issues
Willie, who was only convicted of count V, robbery, with a gang enhancement, asserts the court should have granted the pretrial motion to bifurcate the gang enhancement from the substantive offenses. Willie also contends there is insufficient evidence to support the gang enhancement, and the court improperly ordered him to pay the probation report preparation fee.
DISCUSSION
I.
ADMISSION OF LAWRENCE’S POSTARREST STATEMENTS
Jose contends his defense counsel was prejudicially ineffective for failing to object to the admission of Lawrence’s postarrest statements during his interview with Detectives Brocchini and Delgado. Jose argues Lawrence’s statements implicated him in the robberies and were inadmissible pursuant to the Aranda-Bruton rule since Lawrence was not available for cross-examination. Jose acknowledges the jury received a limiting instruction that it could not consider Lawrence’s statements against codefendants Jose and Willie, but argues the instruction was insufficient to cure the harm from the violation of his Sixth Amendment right to confront and cross-examine a witness. Jose also argues that Lawrence’s postarrest statements constituted inadmissible hearsay pursuant to Crawford, and counsel’s failure to object on either ground was prejudicial. Respondent contends counsel was not ineffective, and neither Aranda-Bruton nor Crawford rendered Lawrence’s statements inadmissible. These issues are applicable to Willie.
A. Ineffective Assistance
Appellants herein raise several issues of ineffective assistance in this case, and so we begin with the well-settled principles of law. “To prevail on a claim of ineffective assistance of counsel, defendant ‘must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.’” (People v. Hart (1999) 20 Cal.4th 546, 623.) Prejudice occurs only if the record demonstrates “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 694; see People v. Lucero (2000) 23 Cal.4th 692, 728.)
“In general, reviewing courts defer to trial counsel’s tactical decisions in assessing a claim of ineffective assistance, and the burden rests on the defendant to show that counsel’s conduct falls outside the wide range of competent representation. [Citations.] In order to prevail on such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 349.)
We presume that counsel’s conduct falls within the wide range of reasonable professional assistance and we accord great deference to counsel’s tactical decisions. (People v. Bolin (1998) 18 Cal.4th 297, 333.) “If ‘counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. To engage in such speculations would involve the reviewing court ‘“in the perilous process of second-guessing.”’ [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.]” (People v. Diaz (1992) 3 Cal.4th 495, 557-558.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
In the instant case, the parties filed numerous motions in limine but the parties agree that none of the appellants sought to exclude Lawrence’s postarrest statements as violating either the Aranda-Bruton rule or Crawford. The jury was instructed to separately consider the evidence as it applied to each defendant, and that all instructions applied to each defendant unless otherwise instructed. The jury was also instructed that certain evidence was admitted for a limited purpose, and the jury could only consider that evidence for that purpose and for no other. As to Lawrence’s postarrest statements, the jury was instructed:
“You have heard evidence that the defendant Lawrence Mejia has made a statement before trial. You may consider that evidence only against him, not against any other defendant.”
Jose asserts his defense attorney was ineffective for failing to object to Lawrence’s postarrest statements on Aranda-Bruton and Crawford grounds, the limiting instruction did not cure the error, and counsel’s omissions were prejudicial. We will examine the principles of Aranda-Bruton and Crawford, consider Jose’s assignments of error as to the admission of Lawrence’s postarrest statements, and determine whether counsel had a valid tactical reason for not objecting to the introduction of this evidence.
B. Aranda-Bruton
The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides that in criminal prosecutions, the defendant has the right to be confronted with the witnesses against him. (U.S. Const., 6th Amend.) The Sixth Amendment right to confrontation includes the right of cross-examination. (Pointer v. Texas (1965) 380 U.S. 400, 404; People v. Fletcher (1996) 13 Cal.4th 451, 455 (Fletcher).) “A recurring problem in the application of the right of confrontation concerns an out-of-court confession of one defendant that incriminates not only that defendant but another defendant jointly charged. Generally, the confession will be admissible in evidence against the defendant who made it (the declarant). (See Evid. Code, § 1220 [hearsay exception for party admission].) But, unless the declarant submits to cross-examination by the other defendant (the nondeclarant), admission of the confession against the nondeclarant is generally barred both by the hearsay rule (Evid. Code, § 1200) and by the confrontation clause (U.S. Const., 6th Amend.).” (Fletcher, supra, 13 Cal.4th at p. 455, fn. omitted.)
The Aranda-Bruton rule addresses the confrontation clause issues raised by the introduction of a defendant’s out-of-court statement in a joint trial with one or more codefendants. In Aranda, the California Supreme Court articulated a rule of criminal procedure prohibiting the introduction of a defendant’s extrajudicial statement that directly or inferentially implicates a jointly tried codefendant, unless the statement was redacted to eliminate the direct or inferential reference to the codefendant. (Aranda, supra, 63 Cal.2d at pp. 528-532.) Aranda held the admission of a nontestifying defendant’s out-of-court confession, which inculpates the codefendant, is not rendered harmless by a jury instruction that the evidence should not be considered against him. (Id. at p. 526.) Instead, if the defendants are tried together, either the statement must be redacted to remove direct and indirect identification of the codefendant, or it must be excluded altogether. (Id. at pp. 530-531.)
In Bruton, the United States Supreme Court held that a defendant’s constitutional right to confrontation of the witnesses against him is violated by admitting the confession of a nontestifying codefendant who names and incriminates the defendant. This is so even though the jury is instructed to disregard the confession in determining the nondeclarant defendant’s guilt or innocence. “[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations.] Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” (Bruton, supra, 391 U.S. at pp. 135-136.) Bruton thus held the introduction of such a statement cannot be cured through a limiting instruction. (Id. at p. 137.)
Bruton’s scope was limited in Richardson v. Marsh (1987) 481 U.S. 200 (Richardson), where the court held that when a confession is redacted so that it does not facially incriminate the defendant, the admission of the statement with a proper limiting instruction will not violate the confrontation clause. (Id. at pp. 207-208, 211.)
“The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process. On the precise facts of Bruton, involving a facially incriminating confession, we found that accommodation inadequate. ... [T]he calculus changes when confessions that do not name the defendant are at issue.” (Richardson, supra, 481 U.S. at p. 211.)
Richardson distinguished the confession in that case from the confession in Bruton: “In Bruton, the codefendant’s confession ‘expressly implicat[ed]’ the defendant as his accomplice. [Citation.] Thus, at the time that confession was introduced there was not the slightest doubt that it would prove ‘powerfully incriminating.’ [Citation.] By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant’s own testimony).” (Richardson, supra, 481 U.S. at p. 208, fn. omitted.) Under such circumstances, the court could properly presume that jurors would follow a limiting instruction not to consider the confession against the defendant, even if the confession incriminates the defendant when considered in connection with other evidence. (Id. at pp. 201-202, 208.)
“[T]he Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Richardson, supra, 481 U.S. at p. 211, fn. omitted.)
Richardson left open the question of “the admissibility of a confession in which the defendant’s name has been replaced with a symbol or neutral pronoun.” (Id. at p. 211, fn. 5.)
In Gray v. Maryland (1998) 523 U.S. 185 (Gray), the court answered the question left open in Richardson, and held a defendant’s right to confrontation is violated by the introduction of “statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.” (Id. at p. 196.) Gray held that a confession “which substituted blanks and the word ‘delete’ for the respondent’s proper name, falls within the class of statements to which Bruton’s protections apply.” (Id. at p. 197.) Gray conceded that Richardson “placed outside the scope of Bruton’s rule those statements that incriminate inferentially,” but the court determined that “inference pure and simple cannot make the critical difference, for if it did, then Richardson would also place outside Bruton’s scope confessions that use shorted first names, nicknames, descriptions as unique as the ‘red-haired, bearded, one-eyed man-with-a-limp’ [citation], and perhaps even full names of defendants who are always known by a nickname. This Court has assumed, however, that nicknames and specific descriptions fall inside, not outside, Bruton’s protection. [Citation.]” (Id. at p. 195.)
Aranda-Bruton error is not reversible per se but implicates a constitutional right, and is subject to review under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Anderson (1987) 43 Cal.3d 1104, 1128; People v. Song (2004) 124 Cal.App.4th 973, 981 (Song).)
C. Crawford
Jose’s second assignment of ineffective assistance is based upon counsel’s failure to object to Lawrence’s postarrest statements as inadmissible hearsay under Crawford. As explained ante, in a joint trial of codefendants, the admission of a declarant defendant’s statements against the nondeclarant codefendant is also barred by the hearsay rule, unless the declarant defendant submits to cross-examination by the nondeclarant defendant. (Fletcher, supra, 13 Cal.4th at p. 455.) In Crawford, the United States Supreme Court held that a declarant’s testimonial hearsay is inadmissible under the confrontation clause, even if there has been a judicial determination that the statement bears particularized guarantees of trustworthiness, unless the defendant had a prior opportunity to cross-examine the declarant and the declarant is unavailable to testify at trial. (Crawford, supra, 541 U.S. at pp. 59-60.) Only “testimonial statements” cause “the declarant to be a ‘witness’ within the meaning of the Confrontation Clause. [Citation.] It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” (Davis v. Washington (2006) __U.S. __ [126 S.Ct. 2266, 2273] (Davis); see also People v. Corella (2004) 122 Cal.App.4th 461, 467.)
Crawford identified as testimonial “[s]tatements taken by police officers in the course of interrogations.” (Crawford, supra, 541 U.S. at p. 52.) “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis, supra, 126 S.Ct. at pp. 2273-2274, fn. omitted.)
As with Aranda-Bruton, Crawford error is not reversible per se but reviewed for prejudice under the Chapman harmless error analysis. (Lilly v. Virginia (1999) 527 U.S. 116, 139-140; People v. Harrison (2005) 35 Cal.4th 208, 239; Song, supra, 124 Cal.App.4th at p. 982.) Among the “factors courts should consider in determining whether such an error is harmless beyond a reasonable doubt ... are ‘the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.’” (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225, fns. omitted.)
“Crawford did not overrule Bruton and in fact cited Bruton as an example of a case which was consistent with the original understanding of the Confrontation Clause, [citation], as opposed to the now-discredited balancing test ....” (U.S. v. Rashid (8th Cir. 2004) 383 F.3d 769, 775-776.) Thus, if a confession is testimonial within the meaning of Crawford, it may be admitted at a joint trial without violating Aranda-Bruton or Crawford if the confession makes no reference to the nondeclarant defendant’s existence, and the jury is given a limiting instruction not to consider the evidence when determining the nondeclarant defendant’s guilt or innocent. (Gray, supra, 523 U.S. at p. 192; Fletcher, supra, 13 Cal.4th at pp. 455-456; People v. Schmaus (2003) 109 Cal.App.4th 846, 855-856.) In such a situation, the admission of the statement does not violate the defendant’s confrontation rights because the jury is instructed to consider a witness’s testimony against only one of the defendants, such that the witness is ordinarily not considered to be a witness against the defendant within the meaning of the confrontation clause. (Richardson, supra, 481 U.S at pp. 206-208; see Fletcher, supra, 13 Cal.4th at p. 463.)
D. Analysis
While we have separately reviewed the Aranda-Bruton rule and Crawford, Jose raises these contentions as illustrating a single instance of defense counsel’s alleged ineffectiveness, and asserts Lawrence’s statements were testimonial hearsay and inferentially implicated him in the robberies, and the limiting instruction was insufficient to cure the harm under both Aranda-Bruton and Crawford.
The entirety of the record, however, suggests a tactical reason why the defense attorneys for Jose and Willie did not raise these objections. Based on the eyewitnesses and the surveillance videotapes, it is undisputed that the armed robberies in this case were committed by two men who entered the convenience stores, one or both men displayed guns, they obtained money and/or merchandise from the stores, and they departed. It is also undisputed that the witnesses to the first robbery at the Riverbank AM/PM store (count I), saw two men jump into an older model white Chevrolet pickup truck. As the final robbery was being committed at the Standiford AM/PM store (count V), Officers Guterriez and Yokom saw a similar truck parked near the store. It is also undisputed that Lawrence admitted being in the four convenience stores and that another man was with him when they committed the robberies. The disputed issue was the identity of that other man, and whether a third person was waiting in a getaway car.
While four convenience stores were robbed, Jose and Lawrence were charged with five counts of robbery. Counts III and IV were based on the robbery that occurred at the third convenience store, the North Carpenter Quick-Stop owned by Mazloumi: count III was the robbery of the money from the store’s cash register, and count IV was based on Mazloumi’s testimony that the robbers ordered him to empty his own pockets and turn over his own personal money. Jose and Lawrence were found guilty of count III and not guilty of count IV.
The prosecution theory was that Jose and Lawrence entered the four convenience stores and committed the robberies (counts I-V), and that Willie was their getaway driver in the white truck for the last robbery (count V). At first glance, Lawrence’s postarrest statements to Detectives Delgado and Brocchini seem to implicate both Jose and Willie: Lawrence admitted that he robbed four convenience stores, the same person went into the stores with him on each occasion to commit the robberies, and that a third person acted as the getaway driver. A careful examination of Lawrence’s statements, however, refutes Jose’s argument that Lawrence’s statements implicated him in violation of Aranda-Bruton. Lawrence admitted he committed the robberies, but repeatedly insisted he committed all the robberies with “Mike,” a girl named “Cheena” drove them to and from each robbery, and she disappeared as they committed the last robbery. Detective Brocchini advised Lawrence that Paul Anthony Lopez, also known as “Mug,” owned the white truck. Lawrence admitted he knew Mug but denied that Mug was driving a white truck or that Mug had anything to do with the robberies. When the officers confronted Lawrence with the discovery of his cell phone in the white truck, Lawrence said he gave his cell phone to a guy named “Vince,” he just met “Vince” that night, and he gave “Vince” his cell phone just before the last robbery because he did not want to drop it in the store. Lawrence steadfastly denied that he was ever in a white truck, or that a white truck was waiting for him to complete the last robbery. In fact, Lawrence ironically said that if he had known someone else was driving around the area during the last robbery, he would have asked the guy for a ride as he was running from the police since Cheena had disappeared.
As the interview continued, Detectives Delgado and Brocchini repeatedly insisted that Lawrence was covering for his homeboys, that he committed the robberies with Jose, Willie was waiting in the white truck for the first and last robberies, Mug owned the white truck and called Lawrence’s cell phone to warn him just after the last robbery, and Lawrence had to know Jose and Willie because they were Mug’s brothers. Despite the officers’ insistence that Jose and Willie were involved, Lawrence never strayed from his story that “Mike” robbed the stores with him, he never acknowledged the existence of anyone named “Jose,” and never admitted that “Mike” could have been “Jose.” The robbery victims and witnesses described one robbery suspect as clearly being larger than the other, and both of them had extensive tattoos on their arms, heads, and necks that were visible beneath their hats and masks. Officers Guiterrez and Yokom offered the same physical descriptions of the two men who ran from the white truck after the last robbery—that one man was clearly taller than the other. The arresting officers described the obvious and extensive tattoos on Jose’s head and neck. Nevertheless, Lawrence repeatedly described “Mike” as being about his size but maybe a little shorter, “Mike” only had tattoos of four dots and a cross on his hands, and he never saw tattoos on “Mike’s” head because he always wore a hat. At one point in the interview, Lawrence’s cell phone rang, Brocchini answered it, and the caller asked for Michael. Brocchini replied there were no “Michaels” on that phone and hung up. This incident happened in Lawrence’s presence, and he quickly suggested to Brocchini that maybe “that guy,” Mike, “used my phone and called.”
Jose argues the clear inference from Lawrence’s postarrest statements, based on the nature of the officers’ questions and Lawrence’s answers, was that Lawrence implicated Jose as the other robbery suspect, as prohibited by Aranda-Bruton and Gray. But the entirety of the record refutes this inference. In the face of the officers’ repeated insistence that “Mug’s” brothers, Jose and Willie, committed the robberies with him, Lawrence rebuffed their assertions with a chuckle and said: “I mean I’m not gonna start changin’ the stories up and shit, I mean.” Even when the officers arranged for Lawrence to see Willie in a showup, without letting Willie know who was looking at him, Lawrence looked at Willie and said, “Naw that dude wasn’t the Vince guy,” and he did not know the guy.
With this background, it is arguable that the defense attorneys for Jose and Willie did not object to the introduction of Lawrence’s postarrest statements because of Lawrence’s repeated insistence that his accomplice was “Mike,” who was about his height, and Lawrence’s refusal to agree that Mug’s brothers, Jose and Willie, were involved in the robberies. Neither Jose nor Willie offered alibi evidence, and Lawrence’s postarrest statements constituted the only direct evidence that the other two robbery suspects were not Jose and Willie and a white truck was not involved. Given the overwhelming direct and circumstantial evidence against Jose and Willie, both defense attorneys may have believed that Lawrence’s statements, along with attacks upon the reliability of the eyewitness identifications, offered their only opportunity to raise a reasonable doubt on the robbery charges.
Jose complains that counsel lacked a rational tactical reason for failing to raise Aranda-Bruton and Crawford objections to Lawrence’s statements because counsel never argued that “Mike” committed the robberies with Lawrence. However, Jose’s defense attorney used closing argument to specifically attack the reliability of the eyewitness identifications as to each robbery, wondered why the police never investigated Paul Lopez’s connection to the case or showed his photograph to the witnesses, even though the white truck believed to be the getaway vehicle was registered to his wife, and suggested the police rushed to judgment against Jose.
While Jose’s defense attorney did not expressly argue that Lawrence committed the robberies with “Mike,” his closing argument raised the possibility that the eyewitness identifications were faulty, the police investigation incomplete, and someone else was involved. Given the weight of the eyewitness evidence against Jose and Willie, and the absence of any other defense evidence as to the substantive offenses, there is a rational tactical reason their defense attorneys did not object to Lawrence’s postarrest statements as inadmissible under either Aranda-Bruton or Crawford.
Jose relies on Song, supra, 124 Cal.App.4th 973, in which the court found Aranda-Bruton and Crawford errors were not cured by a limiting instruction and required reversal, and argues a similar situation occurred in this case since the trial court would have been obliged to exclude Lawrence’s statements based on both Aranda-Bruton and Crawford, the court’s limiting instruction herein did not cure the violation of his Sixth Amendment confrontation rights, and counsel’s failure to object was necessarily prejudicial.
A close review of Song, however, shows it is inapposite to the instant case. In Song, the defendant and two codefendants, Vang and Lor, were charged with kidnapping (§ 207) and sexual battery by restraint (§ 243.4, subd. (a)). At trial, a police officer testified about the pretrial statements of codefendants Vang and Lor. The court admonished the prosecutor not to elicit a statement from one defendant that inculpated another, but “the prosecutor did just that” during the officer’s testimony. (Song, supra, 124 Cal.App.4th at p. 981.) The officer testified that Vang said the defendant tried to push the woman into a car, and Lor said the victim told the defendant she wanted to go home. (Id. at pp. 979-980.) The trial court instructed the jury that all references to the defendant in Vang’s statement were stricken, and the statements made by any defendant after his arrest were not to be considered against any other defendant. (Id. at p. 980, fn. 2.) The jury convicted the defendant but acquitted codefendants Vang and Lor. (Id. at p. 980.)
Song held the admission of the statements of Vang and Lor violated both Aranda-Bruton and Crawford. The Attorney General conceded the Aranda-Bruton error but argued any violation of the defendant’s Sixth Amendment confrontation rights was harmless. (Song, supra, 124 Cal.App.4th at p. 982.) Song examined whether the limiting instruction cured the Sixth Amendment errors:
“Had the statements by Vang and Lor been admitted against defendant, that admission would be Crawford error. Here, however, the trial court instructed that statements by any defendant after his arrest were not to be considered against any other defendant. ... The question is whether the limiting instruction cured any confrontation clause problem because it mandated that Vang and Lor were not witnesses against defendant.
“A similar admonition is insufficient where the statement is a confession or admission that directly incriminates defendant. A limiting instruction does not cure Aranda-Bruton error because courts have repudiated the premise that it is reasonably possible for a jury to follow an instruction to disregard evidence that expressly incriminates the defendant. [Citation.] A limiting instruction is not a substitute for defendant’s constitutional right of cross-examination. [Citation.] As Justice Traynor observed in Aranda ..., a joint trial poses a particular difficulty in following the command of a limiting instruction. ‘A jury cannot “segregate evidence into separate intellectual boxes.” [Citation.] It cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A.’” (Song, supra, 124 Cal.App.4th at pp. 982-983.)
Song acknowledged that Richardson limited the scope of Bruton, such that “there is no overwhelming probability the jury will not obey the limiting instruction to disregard the confession in assessing defendant’s guilt when the confession incriminates only by inference. [Citation.]” (Song, supra, 124 Cal.App.4th at p. 983.) Song noted that Gray found the admission of a confession was Bruton error “[w]here the confession made a direct reference to a perpetrator other than the speaker and the jury could infer immediately that perpetrator was defendant, without considering other evidence,” despite the limiting instruction. (Ibid.)
Song held the limiting instruction might have cured the Aranda-Bruton and Crawford errors created by Vang and Lor’s statements, but the error was prejudicial based on the nature of the codefendants’ statements.
“If only those statements of Vang and Lor that did not directly incriminate defendant had been admitted at trial, we would agree it is reasonable to presume the jury followed the limiting instruction and defendant’s rights to confrontation were not implicated. That, however, is not the situation here. As the Bruton court recognized, ‘there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.’ [Citation.] One of those contexts is present here. Once Vang’s statement directly incriminating defendant—that defendant forced the victim into the car—was admitted, under Aranda ... and Bruton, we presume the jury did not or could not disregard that evidence in assessing defendant’s guilt. Having presumed the jury disobeyed the court’s instruction as to the most incriminating evidence, it is unreasonable to presume the jury then scrupulously followed the instruction as to other evidence from the same source.
“The statements of Vang and Lor corroborated the victim’s testimony on a key point, whether she went with defendant out of force or fear. We believe it unlikely that the jury would be able to apply Vang and Lor’s statements that defendant forced the victim into the car, that she expressed her desire to go home, and that she did not want to be in the car—statements that corroborated the victim’s testimony and each other—only in determining the culpability of Vang and Lor, but not that of defendant.” (Song, supra, 124 Cal.Ap.4th at p. 984, italics added.)
Song concluded the limiting instruction was insufficient given the presence of both Aranda-Bruton and Crawford error. (Song, supra, 124 Cal.App.4th at p. 984) As to the kidnapping charge, the court found the erroneous admission of the codefendants’ statements was prejudicial since their statements directly addressed whether the victim willingly went with the defendant. As to the sexual battery charge, however, the court found that the error was harmless beyond a reasonable doubt since the defendant did not deny the offense occurred or claim that the victim consented. (Id. at pp. 984-985.)
Jose asserts that, as in Song, Lawrence’s statements directly implicated him in the robberies since he admitted committing all the robberies with the same person. Jose cites to a portion of Lawrence’s interview where Detective Brocchini said that “Mike’s” real name was Jose, and argues the instant case is similar to Gray and Song so that the limiting instruction did not cure either the Aranda-Bruton or Crawford errors and, as in Song, his convictions must be reversed.
Song thus held that if only those statements not directly incriminating the defendant had been admitted at trial, it would be reasonable to presume the jury followed the limiting instruction, the defendant’s right to confrontation would not be implicated, and the Aranda-Bruton and Crawford errors would have been harmless. (Song, supra, 124 Cal.App.4th at p. 984.) A similar conclusion may be reached in this case. Lawrence’s interview with the officers lasted about an hour and a half. While Detective Brocchini repeatedly insisted that “Mike” was really Jose, “Vince” was really Willie, and no one named “Cheena” was involved, Lawrence refused to concede these points and never wavered from his story. Lawrence’s statements did not refer, directly or by immediate or obvious inference, to either Jose or Willie. Indeed, he steadfastly denied he knew Jose or Willie, even when the officers identified the suspects as Paul Lopez’s brothers, and insisted he committed the robberies with “Mike” and some girl named “Cheena.” He adamantly denied being in a white truck, he claimed Cheena drove him to and from the robberies in her little Datsun “bucket,” Cheena disappeared during the last robbery, and regretted that he did not know someone else was driving around the area in a white truck as he ran from the police. Since Lawrence’s statements did not directly or indirectly incriminate either Jose or Willie, the Aranda-Bruton rule was inapplicable and any Crawford error was cured by the limiting instruction. (See Song, supra, 124 Cal.App.4th at p. 984; People v. Olguin (1994) 31 Cal.App.4th 1355, 1374-1375.)
Instead, the instant case is closer to People v. Stevens (2007) 41 Cal.4th 182 (Stevens), where the court held that a statement properly redacted pursuant to Aranda-Bruton was also admissible under Crawford.
“… Crawford addressed the introduction of testimonial hearsay statements against a defendant. [The codefendant’s] redacted statement contained no evidence against defendant. [Citation.] Thus, it cannot implicate the confrontation clause. [Citations.] The same redaction that ‘prevents Bruton error also serves to prevent Crawford error.’ [Citation.]” (Stevens, supra, 41 Cal.4th. at p. 199.)
While Lawrence’s statements were not redacted, his statements did not implicate Jose or Willie, directly or indirectly, such that the introduction of those statements did not implicate the confrontation clause and did not violate either Aranda-Bruton or Crawford.
Even if the admission of Lawrence’s statements is considered Aranda-Bruton error, Lawrence implicated Jose and Willie only to the extent that he confirmed another person entered the store with him to commit the robberies, and someone else acted as a getaway driver. There was overwhelming independent evidence, however, that all the robberies were committed by two people who went inside the stores and that a getaway car was observed for some of the robberies, such that any Aranda-Bruton error from the admission of Lawrence’s statements is harmless as to both Jose and Willie under Chapman.
Thus, even if counsel should have raised Aranda-Bruton and Crawford objections, the court would have likely overruled the objections since the instant situation is similar to Richardson and contrary to Song—the connection of Jose and Willie to the robberies was based only upon “evidence properly admitted against [them] at trial,” and the jury received the appropriate limiting instruction. (Richardson, supra, 481 U.S. at p. 202; compare with Song, supra, 124 Cal.App.4th at p. 984.)
Jose asserts there was no direct evidence of his guilt in counts II and III, such that the admission of Lawrence’s statements raised the inference that Jose committed those robberies with him. As explained ante, however, Lawrence never admitted that Jose and Willie were involved in the robberies and insisted other people acted with him. Moreover, the prosecution presented extensive testimony from the victims and witnesses, assisted by the surveillance videotapes, as to the physical appearance, clothing, descriptions, and identities of the two men who entered the convenience stores. While Jose asserts there was no direct evidence of his guilt in counts II and III, there was circumstantial evidence of his presence in the stores based on the circumstances of those two robberies. The witnesses to count I, the Riverbank AM/PM robbery, clearly identified Jose as one of the robbers. The Modesto Stop-and-Save robbery charged in count II was committed about 30 minutes after count I. The clerk identified one suspect as Lawrence and could not identify the other suspect because he was wearing a mask, but described two men wearing the same clothes and with similar tattoos as the robbers in count I. In count III, the North Carpenter Quick Stop, the clerk, Mazloumi, could not identify the suspects because they wore masks but described their clothes and tattoos. In count V, the Standiford AM/PM robbery, the witnesses identified Jose and Lawrence as the robbers; count V was committed just 20 minutes after the count III, and the witness to count III described two men wearing the same clothes as worn by the robbers in count V, with the exception of a mask.
The police saw the white truck waiting outside the Standiford AM/PM store as the robbery charged in count V was being committed. After a brief chase, two men jumped out of the white truck and ran down the canal bank. One man was larger than the other, and one of the men dropped something. Lawrence was apprehended in a nearby backyard and his fingerprints were on cigarette cartons found on the canal bank. Jose appeared at another nearby residence, jumped off the roof, and asked the occupants for a ride because the police were after him. Willie was apprehended in the white truck shortly after the police saw the two men jump out of the vehicle; Willie was in possession of Lawrence’s cell phone and another phone. One of the cell phones rang, an officer answered it, and the caller admonished the listener to get out of there.
Moreover, Jose made several postarrest statements to his family that were extremely inculpatory. Jose complained to his girlfriend because she gave her consent for the police to search her house, and the officers found “[t]he carton, gang-related pictures, too, shit like that.” The police found an empty carton of Marlboro cigarettes in the trash can, and the robbers took Marlboro cartons from the first robbery at the Riverbank AM/PM. Jose’s girlfriend asked him whether it was worth it, and Jose replied, “Fuck no. That’s what I was thinking all of the time I was fucking there.” “I said that’s all I was thinking all of the time I was in the back seat of the car. I just don’t know how they found out where I was at.” Arciga told Jose he should have “just stayed home those times I told you to,” and he was “hard-headed” and “retarded.” Jose replied, “I just needed to get some money, some easy-ass money. And that’s what I tried to do.” Arciga asked, “And what did you get out of it?” Jose replied, “Discipline.”
Jose asserts the prosecutor relied on Lawrence’s postarrest statements to argue Jose committed the robberies, based on the following section of the prosecutor’s closing argument as to count II, where he said: “[Lawrence] with regards to that particular crime admitted to Detective Brocchini that he took the money and he fled with his crime partner, who the evidence shows was Jose Torres.” (Italics added.) While the prosecutor cited to Lawrence’s statement as an admission that Lawrence committed count II, the prosecutor did not assert that Lawrence identified Jose as his crime partner, since Lawrence never did such a thing, and instead specifically argued “the evidence show[ed]” Lawrence’s partner was Jose.
Jose also asserts the jury’s lengthy deliberations were indicative of a close case. This trial, however, lasted nearly a month and involved extensive evidence of four convenience store robberies, and the individual indicia of gang membership as to the three appellants. While the jury found Lawrence and Jose not guilty of count IV, that count was based on their alleged theft of the clerk’s own money during the third robbery. That clerk—Mazloumi—did not appear at trial and his preliminary hearing transcript was read to the jury. The jury’s verdict on count IV could have been based on their inability to determine whether the clerk actually turned over his own money to the robbers, along with the money taken from the cash registers. Indeed, one of the jury’s requests was to view the surveillance videotape from the “personal robbery” of Mazloumi, as charged in count IV. The jury’s inability to reach a verdict on count IV was not indicative of a close case on the armed robberies of the four convenience stores.
Finally, to the extent the prosecution’s experts relied on Lawrence’s postarrest statements for their opinion testimony, the admission of hearsay as part of an expert’s opinion is not error under Crawford. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1208-1210.) “[B]ecause the statements were not offered to establish the truth of the matter asserted, but merely as one of the bases for an expert witness’s opinion, the confrontation clause, as interpreted in Crawford, does not apply.” (Id. at p. 1210; People v. Fulcher (2006) 136 Cal.App.4th 41, 56-57.)
We thus conclude Lawrence’s postarrest statements did not directly implicate either Jose or Willie, and a proper limiting instruction was given to the jury that Lawrence’s statements could not be used as evidence against Jose or Willie. As in Richardson, the admission of Lawrence’s statements did not violate Aranda-Bruton. Moreover, it is proper to presume the jury followed the limiting instruction and did not consider Lawrence’s statements against either Jose or Willie, eliminating any possibility of Crawford error. (Stevens, supra, 41 Cal.4th at p. 199; compare with Fletcher, supra, 13 Cal.4th at p. 456; Song, supra, 124 Cal.App.4th at p. 984.)
II.
FAILURE TO GIVE ACCOMPLICE INSTRUCTIONS
Jose next contends that based upon Lawrence’s postarrest statements, the court had a sua sponte duty to instruct the jury on accomplice testimony and corroboration, because Lawrence was an accomplice as a matter of law and his statements were introduced as substantive evidence of Jose’s guilt. Respondent contends any failure to give the accomplice instructions is harmless. This issue is applicable to Willie.
“An accomplice is ... defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.) “‘Testimony,’ as used in section 1111, includes ‘“all out-of-court statements of accomplices ... used as substantive evidence of guilt which are made under suspect circumstances. The most obvious suspect circumstances occur when the accomplice has been arrested or is questioned by the police.”’ [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 555, italics in original.) In such a situation, the jury is to be instructed that the accomplice’s testimony must be viewed with caution and must be corroborated. (People v. Hayes (1999) 21 Cal.4th 1211, 1271 & fn. 17.) The rationale for instructing a jury to view with caution an accomplice’s testimony that incriminates the defendant is the accomplice’s self-interest in shifting blame to the defendant. (People v. Cook (2006) 39 Cal.4th 566, 601.)
“A witness’s status as an accomplice ‘is a question for the jury if there is a genuine evidentiary dispute [on knowledge and intent] and if “the jury could reasonably [find] from the evidence” that the witness is an accomplice.’ [Citations.] In such cases, the defendant is entitled to instructions on accomplice testimony, and the failure to instruct may be reversible error. [Citation.] When the facts are not in dispute, the issue is a legal one to be determined by the trial court. [Citation.] ‘“Where such witness is an accomplice as a matter of law, the court should so charge.... Conversely, where, as a matter of law, the witness is not an accomplice, the court does not err in refusing to charge that he is or in refusing to submit the issue to the jury.”’ [Citations.]” (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1158-1159, fns. omitted; People v. Avila (2006) 38 Cal.4th 491, 564.)
The failure to instruct on accomplice testimony pursuant to section 1111 is harmless where there is sufficient corroborating evidence in the record. (People v. Sanders (1995) 11 Cal.4th 475, 534-535; People v. Arias (1996) 13 Cal.4th 92, 143.) The corroborating evidence must be independent from the accomplice’s testimony so as to establish the accomplice’s credibility. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.) “The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplice’s testimony, tend to connect the defendant with the crime. [Citation.]” (People v. McDermott (2002) 28 Cal.4th 946, 986.) The evidence is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. (People v. Fauber (1992) 2 Cal.4th 792, 834; People v. Lewis (2001) 26 Cal.4th 334, 370.) Moreover, only a portion of the accomplice’s testimony need be corroborated, and it is not necessary that the corroborative evidence establish every element of the charged offense. (People v. Miranda (1987) 44 Cal.3d 57, 100, overruled on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)
Jose contends the failure to give accomplice instructions should result in either reversal per se or treated as structural error in violation of due process. We are bound by the authorities set forth, ante, as to the standard of review for failing to give accomplice instructions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In the instant case, none of the parties requested accomplice instructions and the trial court did not address the issue. As with the ineffective assistance issues in section I, ante, the defense attorneys may have had tactical reasons not to request accomplice instructions as to Lawrence’s postarrest statements, given Lawrence’s steadfast insistence that his accomplices were “Mike” and “Cheena,” he gave his cell phone to “Vince,” that Mug’s brothers, Jose and Willie, were not his accomplices, Willie was not “Vince,” and he was never in a white truck. Both Jose and Willie challenged the evidence as to their involvement in the robberies, and Lawrence’s statements obviously formed the basis for such arguments given his insistence that other people were involved.
To the extent the court had a sua sponte duty to instruct on accomplice testimony, however, the error is not prejudicial given the overwhelming corroborative evidence set forth in section I, ante, as to Lawrence’s statements. Lawrence said he committed the robberies with another person, while a third person acted as the getaway driver. The jury’s task was to determine whether Jose and Willie were his accomplices. As such, the corrobative evidence included the eyewitness descriptions and identifications of Jose, the surveillance videotapes, Jose’s inculpatory statements to his family, the evidence seized at the time of Jose’s arrest, the witnesses’ observation of the older white Chevrolet truck outside the Riverbank AM/PM store during the first robbery, the officers’ observations of a similar white pickup truck outside the Standiford AM/PM store during the last robbery, Willie’s presence in that truck shortly after the last robbery, the departure of the two suspects from the back of the white truck and their escape down the canal bank during the police pursuit, the discovery of the cigarette cartons on the canal bank, Lawrence’s arrest in a backyard adjacent to the canal bank, the discovery of the mask and gun in that backyard, Jose’s arrival from the roof of the nearby Santanas’ house, and Jose’s statements to the Santanas and his own family.
Finally, the accomplice corroboration rule only applies to statements used as substantive evidence of guilt. (People v. Andrews (1989) 49 Cal.3d 200, 214, overruled on other grounds in People v. Trevino (2001) 26 Cal.4th 237, 243-244.) Moreover, the accomplice corroboration requirement applies only to “convictions” for underlying substantive offenses, and not to true findings on enhancement allegations. (People v. Maldonado (1999) 72 Cal.App.4th 588, 597-598.) “[W]hen a defendant has already been found guilty of the underlying offense, the accomplice’s credibility as to additional details of the crime, such as which participant used a gun, has at that point been supported by independent corroboration connecting the defendant to the commission of the crime. There is no reason why the trier of fact should not then believe the accomplice’s evidence as to the detail of gun use without requiring further specific independent corroboration on that point.” (Id. at p. 598.) Thus, the requirement for accomplice corroboration was not applicable to the extent that Lawrence’s postarrest statements formed the basis for expert testimony or the evidence in support of the enhancements.
III.
DENIAL OF BIFURCATION AND SEVERANCE MOTIONS
Jose and Willie assert the court should have granted their pretrial motion to bifurcate the gang enhancement from the substantive robbery offenses; Jose also argues the court should have granted the severance motion as to the substantive gang offense alleged against him in count VII. Respondent contends the court properly denied the bifurcation and severance motions. These issues are applicable to Lawrence.
A. Background
As set forth ante, Jose and Lawrence were charged with five counts of robbery (counts I-V), and Willie was charged with one count of robbery (count V), with gang enhancements alleged as to all counts. Jose was separately charged with count VI, felon in possession of a gun, with a gang enhancement. Jose, Lawrence, and Willie were charged in count VII with the substantive offense of participation in a criminal street gang (§ 186.22, subd. (a)).
Willie filed a pretrial motion to bifurcate the gang enhancement alleged as to count V, and sever count VII, the substantive gang offense, from the nongang-related charges. Willie argued that introduction of the gang evidence would unduly prejudice the jury as to the robbery charge, the gang evidence was inherently inflammatory, the gang evidence would be unduly time-consuming and confusing to the jury, and it would lead to “guilt by association.” The prosecution filed opposition that bifurcation was not appropriate because the gang evidence was relevant to establish motive for the substantive offenses.
The court conducted a hearing on Willie’s bifurcation motion, and Jose joined in the motion. The prosecutor argued the gang evidence was admissible as to the robbery charges and “[t]he jury’s going to hear the gang evidence anyway as they go through this trial, because the defendants are using red bandanas, one of them’s got a belt buckle with a N for Norteno on it, the car was used that was lent to them by a gang banger.” The prosecutor also argued it would be unduly burdensome to have a separate trial on the gang issues. The court denied the bifurcation motion and found:
“It clearly is discretionary to the Court to bifurcate or not, and it is certainly an issue for the jury to decide whether it’s gang related or not, and I do feel the gang evidence is relevant on the issue of motive. [¶] So in that regard, its probative value outweighs any prejudice it may have. So motion to bifurcate, then, is denied.”
As set forth ante, Jose and Lawrence were convicted of the robbery charges (counts I-V) and the gang enhancements were found true, and they were also convicted of the substantive gang offense (count VII), and Jose was separately convicted of being a felon in possession of a weapon with the gang enhancement (count VI). Willie was convicted of the one robbery count with the gang enhancement (count V), and the jury was unable to reach a verdict as to the substantive gang offense against him (count VII).
B. Analysis
Jose and Willie contend the court abused its discretion when it denied the motion to bifurcate the gang enhancements. A trial court has broad discretion to control the conduct of a criminal trial. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) The court’s power to bifurcate the trial of a gang enhancement from the trial of the substantive offense is implied in section 1044. (Hernandez, supra, at p. 1048.) Hernandez explained that the need to bifurcate gang allegations is often not as compelling as the bifurcation of prior conviction evidence. (Id. at pp. 1048-1049.) “A prior conviction allegation relates to the defendant’s status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense.” (Id. at p. 1048.)
“[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, 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.]” (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
We review the trial court’s denial of a motion to bifurcate for abuse of discretion. (Hernandez, supra, 33 Cal.4th at p. 1048.) The trial court’s discretion to deny a motion to bifurcate the trial of a charged gang enhancement is broader than its discretion to admit gang evidence when a gang enhancement is not charged. (Id. at p. 1050.) When the evidence sought to be severed is related to a charged offense, the burden is on the defendant to clearly establish a substantial danger of prejudice requiring bifurcation. (Ibid.)
The court herein did not abuse its discretion in denying the bifurcation motion. The evidence of appellants’ gang activities were necessarily intertwined within the robbery charges in this case. The robbery suspects wore and displayed red bandanas, one suspect wore a belt buckle with an “N,” all three appellants were members of the Nortenos, the eyewitnesses described the suspects’ distinctive gang tattoos which were clearly visible beneath their hats and masks, and the white truck, believed to be the getaway car, was registered to the wife of the older brother of Jose and Willie—Paul “Mug” Lopez, an active leader in the Norteno gang. The gang evidence was also relevant to link the appellants to the commission of the substantive offenses: Jose and Willie were brothers with extensive involvement with the Norteno gang, they were acquainted with the family of a major Norteno leader (Gratton), and Lawrence admitted his long-term involvement with the Nortenos and knowledge of their older brother, Paul Lopez. Jose’s postarrest statements to his family necessarily amounted to admissions of his involvement in the robberies, but he complained to his girlfriend that the police found the gang paraphernalia in her house and admonished her not to send any gang photographs to him in jail. Jose’s statements to the Santana family contained the descriptive phrase that he had done a job and the police were looking for him. Lawrence’s postarrest statements suggested the motive for the robberies, when Lawrence said he did not keep the money but gave everything to a third party. As we will explain, post, Detective Delgado relied on Lawrence’s statements and explained the robberies were committed to benefit the gang because they gave the money to another party instead of keeping it for themselves.
We note that appellants were also charged with count VII, the substantive offense of active participation in a criminal street gang (§ 186.22, subd. (a)). Only Jose and Lawrence were convicted of this offense, and the jury was unable to reach a verdict as to Willie. As relevant to the charges in this case, “to entirely eliminate the gang evidence would have required a severance ... of the street terrorism count and the bifurcation of the gang enhancements.” (People v. Burnell (2005) 132 Cal.App.4th 938, 947.) Willie’s bifurcation motion, as joined in by Jose, also sought severance of count VII, but the court properly denied the severance motion. Joint trials of offenses which occur together are legislatively preferred over separate trials, and the party requesting severance of properly joined offenses carries a very heavy burden to “‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried’” before such a severance can be granted. (Id. at p. 946; see § 954.) “Severance of charged offenses is a more inefficient use of judicial resources ... because severance requires selection of separate juries, and the severed charges would always have to be tried separately .…” (Hernandez, supra, 33 Cal.4th at p. 1050.)
As applicable to the instant case, the substantive street terrorism count required much the same evidence to prove, and was no more potentially inflammatory than the other charges, such that severance would not have been appropriate. (See, e.g., Hernandez, supra, 33 Cal.4th at p. 1051.) Moreover, the gang evidence was cross-admissible in this joint trial given the existence of the substantive charge. (See People v. Cunningham (2001) 25 Cal.4th 926, 985 [no possible prejudice to admit evidence if cross-admissibility satisfied].)
Finally, the court herein instructed the jury with CALCRIM No. 1403, on the limited purpose of the gang evidence:
“You may consider evidence of gang activity only for the limited purpose of deciding whether:
“The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements charged; [¶]…[¶]
“You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”
We presume the jury followed this instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
IV.
FAILURE TO OBJECT TO DETECTIVE DELGADO’S TESTIMONY
Detective Delgado testified as the prosecution’s expert witness on gangs, based on his research, education, investigation, and personal knowledge of gang activities from his work with the Stanislaus County Gang Intelligence Task Force.
Jose contends his defense counsel was prejudicially ineffective for failing to object to specific portions of Detective Delgado’s expert testimony, and argues Delgado gave impermissible opinion testimony “when he expressed an opinion as to the definition of a crime, and gave impermissible opinion testimony as to the guilt or innocence” of Jose. Respondent asserts Delgado’s expert testimony was properly admitted.
Jose’s arguments as to Detective Delgado are raised in the context of ineffective assistance, and mixed together with his claims that counsel was also ineffective for failing to object to portions of Detective Brocchini’s testimony about robbery and gangs. While his claims as to Delgado and Brocchini are raised in a single argument, we will separately address Jose’s issues as to Brocchini’s testimony in section V, post.
In order to clearly address Jose’s issues as to Detective Delgado, and the context in which the alleged inappropriate testimony was given, we will begin with the permissible scope of expert witness testimony in a gang case, review the nature and context of the specific instances of Delgado’s testimony cited by Jose, and determine whether counsel should have objected to that testimony or if Delgado’s opinions were within the scope of permissible expert testimony.
A. Expert Testimony in Gang Cases
We begin with the admissibility and parameters of the testimony of an expert witness. “A witness is qualified to testify as an expert if the witness has special knowledge, skill, experience, or education pertaining to the matter on which the testimony is offered. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 177.) Expert opinion testimony is admissible if the subject matter of the testimony is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a); see also People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)
“‘A witness is qualified to testify about a matter calling for an expert opinion if his peculiar skill, training, or experience enable him to form an opinion that will be useful to the jury.’ [Citation.] The question becomes whether the expert opinion given was helpful to the trier of fact. The reception of expert opinion testimony is within the sound discretion of the trial court. [Citations.] Even though facts may be within the knowledge or understanding of the trier of fact, the conclusions to be drawn therefrom may require expert testimony. [Citations.] ‘The decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citation.] An expert’s opinion is admissible when ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ (Evid. Code, § 801, subd. (a).)” (People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1227 (Harvey).)
“[T]he decision of a trial court to admit expert testimony ‘will not be disturbed on appeal unless a manifest abuse of discretion is shown.’ [Citation.]” (People v. McAlpin (1991) 53 Cal.3d 1289, 1299.) “The exercise of discretion is not grounds for reversal unless ‘“the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”’ [Citations.]” (People v. Ochoa (2001) 26 Cal.4th 398, 437-438, disapproved on other grounds in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) Moreover, “‘the admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would “assist” the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of information ...’ [citation].” (People v. McAlpin, supra, 53 Cal.3d at pp. 1299-1300; see People v. Prince (2007) 40 Cal.4th 1179, 1222.)
The Street Terrorism Enforcement and Prevention Act (STEP Act) was enacted by the Legislature in 1988, based on the Legislature’s finding that “the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.” (§ 186.21.) The STEP Act creates both a substantive offense under section 186.22, subdivision (a), and a sentence enhancement under section 186.22, subdivision (b)(1). (In re Jose P. (2003) 106 Cal.App.4th 458, 466 (Jose P.).)
Section 186.22, subdivision (a) defines the substantive offense, which “‘punishes active gang participation where the defendant promotes or assists felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself.’ [Citation.] Thus, it ‘applies to the perpetrator of felonious gang-related criminal conduct ....’ [Citation.]” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) The substantive gang offense of active participation in a criminal street gang requires proof that the defendant (1) actively participated in a criminal street gang with knowledge that its members engaged in, or have engaged in, a pattern of criminal gang activity, and (2) willfully promoted, furthered, or assisted in felonious criminal conduct by members of the gang. (People v. Bautista (2005) 125 Cal.App.4th 646, 656, fn. 5; People v. Robles (2000) 23 Cal.4th 1106, 1111, 1115 (Robles); Jose P., supra, 106 Cal.App.4th at p. 466.)
Section 186.22, subdivision (b)(1) defines the gang enhancement, which “imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran).)
It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. (People v. Valdez (1997) 58 Cal.App.4th 494, 506 (Valdez); Ferraez, supra, 112 Cal.App.4th at p. 930; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) “[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, 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.]” (Hernandez, supra, 33 Cal.4th at p. 1049.)
The subject matter of the culture and habits of criminal street gangs meets the criteria for the admission of expert testimony because such evidence is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Gardeley, supra, 14 Cal.4th at p. 617; Frank S., supra, 141 Cal.App.4th at p. 1196.) The expert testimony may address “the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendant’s membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations].” (People v. Killebrew (2002) 103 Cal.App.4th 644, 657, fns. omitted (Killebrew).)
Evidence Code section 802 provides, in pertinent part, that “[a] witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter ... upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.” Expert testimony may be “premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions” and is reliable. (Gardeley, supra, 14 Cal.4th at p. 618.) If the threshold requirement of reliability is met, “even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony.” (Ibid., italics omitted; see also Duran, supra, 97 Cal.App.4th at p. 1463.) Since Evidence Code section 802 permits an expert witness to “‘state on direct examination the reasons for his opinion and the matter ... upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion.” (Gardeley, supra, 14 Cal.4th at p. 618.)
Thus, an officer testifying as a gang expert, just like any other expert, may give testimony that is based on hearsay, including conversations with gang members as well as with the defendant. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; Gardeley, supra, 14 Cal.4th at p. 620; People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.) A gang expert’s opinion may also be based upon the expert’s personal investigation of past crimes by gang members, and information about gangs learned from the expert’s colleagues or other law enforcement agencies. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; Gardeley, supra, 14 Cal.4th at p. 620; People v. Vy, supra, 122 Cal.App.4th at p. 1223, fn. 9.)
“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. [Citation.]” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4.) This is true even if the gang expert’s opinion in effect embraces an ultimate issue in the case. (People v. Gonzalez (2006) 38 Cal.4th 932, 946-947 & fn. 3.) “Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible. [Citation.] This rule, however, does not permit the expert to express any opinion he or she may have. [Citation.]” (Killebrew, supra, 103 Cal.App.4th at p. 651.)
“The People are entitled to ‘introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.’ [Citation.] ‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’ [Citations.] [¶] Expert testimony repeatedly has been offered to show the ‘motivation for a particular crime, generally retaliation or intimidation’ and ‘whether and how a crime was committed to benefit or promote a gang.’ [Citation.]” (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550.)
“A bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible. The issue has long been a subject of debate. [Citations.]” (Killebrew, supra, 103 Cal.App.4th at pp. 651-652.) “‘There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.’ [Citations.] ‘“[T]he true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved .... Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.”’ [Citation.]” (Valdez, supra, 58 Cal.App.4th at p. 507.)
A witness may not express an opinion as to a defendant’s guilt or innocence, or with respect to whether a crime has been committed. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77; People v. Torres (1995) 33 Cal.App.4th 37, 46-47 (Torres).) Nonetheless, “[t]here are some crimes a jury could not determine had occurred without the assistance of expert opinion as to an element of the crime.” (Torres, supra, 33 Cal.App.4th at p. 47, fn. omitted.) Thus, for example, it has been held proper for a trial court to permit an expert in the illegal distribution of pharmaceutical drugs to opine that, under the facts of the hypothetical question posed to him, the drugs were possessed for the purpose of illegal street sales. (People v. Doss (1992) 4 Cal.App.4th 1585, 1596.) “It is neither unusual nor impermissible for an expert to testify to an ultimate issue, and such opinions are expressly contemplated by Evidence Code section 805. [Citation.]” (Ibid.)
“Despite the circumstance that it is the jury’s duty to determine whether the prosecution has carried its burden of proof beyond a reasonable doubt, opinion testimony may encompass ‘ultimate issues’ within a case. Evidence Code section 805 provides that ‘[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.’ [Citation.]” (People v. Prince, supra, 40 Cal.4th at p. 1227 .)
“‘[R]arely, if ever, does an expression of opinion by a so-called expert not amount to that which either the court or jury might adopt as a basis for the ultimate decision in the case. However, that does not mean that the witness is deciding the case or that in so testifying he is usurping the functions of the jury. He is merely giving an opinion based upon his technical training which the court may or may not accept as testimony that “was proper and necessary to an enlightened consideration and a correct disposition of the ultimate issue.”’ [Citation.]” (Eger v. May Department Stores (1953) 120 Cal.App.2d 554, 559.)
B. The Scope of Expert Testimony
As we will set forth post, Jose contends defense counsel should have objected to portions of Detective Delgado’s expert testimony because he purportedly “expressed an opinion as to the definition of a crime” and Jose’s guilt.
A series of cases have addressed the permissible extent of a gang expert’s testimony. “In People v. Olguin (1994) 31 Cal.App.4th 1355, 1371, the court explained that ‘[t]he requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.] Such evidence is admissible even though it encompasses the ultimate issue in the case. [Citations.]’ [Citations.] On the other hand, ‘[e]xpert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.’ [Citations.]” (Valdez, supra, 58 Cal.App.4th at p. 506.) The trial court has wide discretion to admit or exclude expert testimony and we may not interfere unless a clear abuse of discretion is shown. (Ibid.)
For example, in Harvey, supra, 233 Cal.App.3d 1206, a police officer testified as an expert about cocaine trafficking, that the defendants’ various activities were drug related or consistent with the activities of drug trafficking. The officer also testified that one defendant “was a ‘distributor/trafficker,’” and that two others “were cocaine dealers.” (Id. at p. 1217.) The court held the testimony was properly admitted because “the subject matter was sufficiently beyond the common expertise of the trier of fact to render expert testimony not only helpful but necessary for an understanding of the meaning and import of various actions.” (Id. at p. 1228.)
In Gardeley, supra, 14 Cal.4th 605, an expert was given the facts of the case and asked, hypothetically, whether the described incident would be “‘gang-related activity.’” (Id. at p. 619.) The expert opined “that it was a ‘classic’ example of gang-related activity, explaining that criminal street gangs rely on such violent assaults to frighten the residents of an area where the gang members sell drugs, thereby securing the gang’s drug-dealing stronghold.” (Ibid.)
In People v. Gamez (1991) 235 Cal.App.3d 957 (Gamez) (overruled on other grounds in Gardeley, supra, 14 Cal.4th at p. 624, fn.10), the defendant was convicted of assault with a firearm when he shot at several individuals in front of a house where a rival gang member’s car was parked; that individual was thought to have been involved in another gang shooting. The evidence established that the defendant drove to a location in rival gang territory. The gang expert testified that Hispanic gangs in that area were extremely territorial and venturing in another gang’s “‘turf’” is “done at great risk.” (Gamez, supra, 235 Cal.App.3d at p. 978.) The expert further testified that, in the culture of gangs, the shooting by a rival gang member “could not go unavenged and would warrant a retaliatory strike.” (Ibid.)
In People v. Zermeno (1999) 21 Cal.4th 927, the gang expert testified that in his opinion, an assault committed between members of rival gangs was “‘classic’ behavior in gang incidents,” and represented one gang member “‘protect[ing] the back of the person who is doing the assault.’” (Id. at pp. 929-930.) In People v. Zepeda (2001) 87 Cal.App.4th 1183, the court held a gang expert was properly permitted to respond to a hypothetical question, based on the facts of the case, and that in his opinion, certain behavior by a known gang member was likely done for gang-related purposes. (Id. at pp. 1208-1209.) In People v. Muniz (1993) 16 Cal.App.4th 1083, an officer testified that in his opinion the defendant, a known gang member, was preparing to commit a drive-by shooting when he was observed holding a loaded semiautomatic rifle in an illegally parked car with three other known gang members. (Id. at pp. 1085-1086.) Muniz held the expert testimony was appropriate because the officer based his opinion on facts he observed, not on inferences based on an incident to which the defendant was not connected. Moreover, the defendant’s conviction was based on not only these observations, but also the defendant’s admission. (Id. at p. 1088.)
In Valdez, the issue was whether the trial court had abused its discretion in allowing the prosecution’s gang expert to testify that the defendant had acted for the benefit of a gang, where the defendant argued the issue was one of fact for the jury. (Valdez, supra, 58 Cal.App.4th at p. 507.) The pertinent facts were that a group of individuals from a number of different Norteno cliques or gangs in San Jose came together one day and formed a caravan to attack Surenos. Valdez explained that if the evidence had been that most or all of the participants in the caravan were from the same Norteno gang, then the jury might have been able to determine whether the crime was committed for the benefit of the gang as easily as an expert. (Id. at p. 508.) Valdez concluded the facts of the case were not so simple. “The participants in the caravan were a diverse group, with affiliations to different gangs. They united for one day to attack Sureños. At the time it assembled, the caravan was not a ‘criminal street gang’ within the meaning of the enhancement allegation. Moreover, their common identification as Norteños did not establish them as a street gang, for, as [the gang expert] testified, Norteño and Sureño are not the names of gangs.” (Ibid.) Valdez concluded the particular facts of the case were such that the jury could not determine whether a crime had occurred without the assistance of an expert. (Id. at pp. 508-509.)
In contrast to these cases, Torres reached the opposite result as to the permissible extent of an expert’s opinion testimony. The defendant was convicted of first degree murder with a robbery special circumstance. The defendant collected money from drug dealers in return for the privilege of selling drugs in a particular area. (Torres, supra, 33 Cal.App.4th at p. 42.) A police officer testified to the legal meaning of the terms “robbery” and “extortion,” and to his opinion that the crimes committed were robberies. Torres held the expert’s testimony was improper because, under the facts of the case, “expressing the opinion the crimes were robberies was tantamount to expressing the opinion defendant was guilty of robbery and the first degree felony murder of [the victim].” (Id. at p. 48.) Torres explained:
“A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. [Citations.] ... [T]he reason for employing this rule is not because guilt is the ‘ultimate issue of fact’ to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case. [Citation.] Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.” (Torres, supra, 33 Cal.App.4th at pp. 46-47.)
Torres held the same rationale prohibited the expert from expressing an opinion as to whether a crime had been committed.
“... [T]he rationale for admitting opinion testimony is that it will assist the jury in reaching a conclusion called for by the case. ‘Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates.’ [Citation.] There are some crimes a jury could not determine had occurred without the assistance of expert opinion as to an element of the crime. Robbery and extortion, however, are not among them. Neither, unfortunately, is ‘sufficiently beyond common experience’ that the jury needs an expert to determine whether they have been committed. The jury clearly was competent to determine from the evidence and the court’s instructions whether defendant intended to rob or extort [the victims].” (Torres, supra, 33 Cal.App.4th at p. 47, fn. omitted.)
Torres further found that while defense counsel’s failure to object to the expert’s opinion constituted ineffective assistance, the error was not prejudicial because it was not reasonably probable the result of the proceeding would have been different, but for counsel’s error. (Torres, supra, 33 Cal.App.4th at p. 49.) Torres held the evidence “supported a finding on all the elements of robbery,” and “we do not believe the jury could reasonably have reached any other conclusion than defendant’s acts constituted attempted robbery of [the victims].” (Id. at p. 52, fn. omitted.)
Killebrew similarly held a gang expert’s opinion testimony went too far in the context of that case. In that case, two people died during a drive-by shooting at a Country Boy Crips gathering at Casa Loma Park. The police suspected the fatal shooting was performed by members of the rival East Side Crips and anticipated there would be retaliation. The police were on a heightened state of alert and observed three cars driving in East Side Crip territory, and recognized a member of that gang in one of the cars. The officers eventually detained all three cars, and believed the group of East Side Crips was traveling together because they anticipated retaliation from the Country Boy Crips. A gun was found inside one car, and a second gun was found near the location where the cars were stopped. (Killebrew, supra, 103 Cal.App.4th at pp. 647-648.) There was no direct evidence the defendant was in any of the cars. The police positively identified every occupant of two of the cars, but saw two unidentified men walk away from the third car. The defendant was seen in the area of the traffic stops, and was arrested and charged with conspiracy to possess a handgun, based on one of the guns found with the three cars. (Id. at pp. 648-649.)
Killebrew held the trial court improperly permitted the testimony of a police officer who appeared as the prosecution’s gang expert. Killebrew acknowledged the officer properly testified about the dispute between the two gangs, that the fatal shooting was a major gang event, the East Side Crips would expect retaliation from the Country Boy Crips, and the defendant and the occupants of the cars were members of the East Side Crips. (Killebrew, supra, 103 Cal.App.4th at pp. 650-652.) The officer’s testimony, however, “went much further.” (Id. at p. 652.) “[The officer] also testified that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun,” (ibid.) and offered the following reasons:
“… First, all the occupants in the cars were East Side Crips. Second, since the Casa Loma Park shooting was such an important event to gang members, the East Side Crips would only travel in large groups for their mutual protection that night. Third, any group of East Side Crips that ventured out that night would be armed for protection since retaliation would be expected. Finally, he opined that everyone in the group that night would know there was a gun in the car and would mutually possess the gun. [The officer] opined that even the occupants of the Chrysler, to which no gun was ever linked, would know of the guns in the other two vehicles and would mutually possess those guns.” (Killebrew, supra, 103 Cal.App.4th at p. 652, fn. 7.)
The officer also testified to his opinion that the defendant was the East Side Crip’s “‘shot caller’” who ordered the drive-by shooting at Casa Loma Park, an opinion the court criticized as “rank speculation.” (Id. at p. 651, fn. 6.)
Killebrew reviewed the cases discussed ante, which permitted expert testimony as to the culture and habits of criminal street gangs, but found the officer’s opinion was not admissible under any of these holdings. (Killebrew, supra, 103 Cal.App.4th at pp. 657-658.) “None of these cases permitted testimony that a specific individual had specific knowledge or possessed a specific intent.” (Id. at p. 658.)
“... Through the use of hypothetical questions, [the officer] testified that each of the individuals in the three cars (1) knew there was a gun in the Chevrolet and a gun in the Mazda, and (2) jointly possessed the gun with every other person in all three cars for their mutual protection. In other words, [the officer] testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action.
“[The officer’s] testimony was the only evidence offered by the People to establish the elements of the crime. As such, it is the type of opinion that did nothing more than inform the jury how [the officer] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. [Citation.]
“Moreover, this topic is not one for which expert testimony is necessary. Testimony that a gang would expect retaliation as a result of a shooting such as occurred at Casa Loma Park, that gangs would travel in large groups if expecting trouble, that in a confrontation more than one gang member may share a gun in some identified circumstances, and that oftentimes gang members traveling together may know if one of their group is armed, would have been admissible. Beyond that, [the officer] simply informed the jury of his belief of the suspects’ knowledge and intent on the night in question, issues properly reserved to the trier of fact. [The officer’s] beliefs were irrelevant.” (Killebrew, supra, 103 Cal.App.4th at p. 658.)
Killebrew also found there was no evidence to place the defendant in any of the vehicles, his mere presence near the area of the traffic stops was insufficient to connect him to any of the weapons found in the cars, and reversed the defendant’s conviction and barred any retrial. (Killebrew, supra, 103 Cal.App.4th at pp. 660-661.)
“Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator’s intent; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial. [Citation.]” (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551; see also People v. Gonzalez, supra, 38 Cal.4th at pp. 946-947 & fn. 3.)
Frank S. followed Killebrew and also rejected the expert’s opinion testimony. The police arrested a minor who possessed a concealed fixed-blade knife, a bindle of methamphetamine, and a red bandana. The minor explained that he carried the knife to protect himself from a southern gang because they thought he supported the northern street gangs. The minor also stated he had several friends in the northern gangs. The minor was charged with possessing a concealed dirk or dagger, with an enhancement for committing the crime for the benefit of a gang under section 186.22, subdivision (b)(1). To prove this allegation, the prosecution relied almost exclusively on testimony of a gang expert who, among other things, opined that the minor possessed the knife with the specific intent to benefit the gang. (Frank S., supra, 141 Cal.App.4th at pp. 1195-1196.)
“When asked her opinion of the minor’s purpose for the knife, the expert stated the minor possessed the knife to protect himself. She also stated a gang member would use the knife for protection from rival gang members and to assault rival gangs. When asked how the minor’s possession of the knife benefited the Nortenos, she responded it helps provide them protection should they be assaulted.” (Frank S., supra, 141 Cal.App.4th at pp. 1195-1196.)
In Frank S., this court reversed the juvenile adjudication because the offense was “found to be gang-related based solely upon [the minor’s] criminal history and gang affiliations.” (Frank S., supra, 141 Cal.App.4th at p. 1195.) The gang expert improperly testified as to her belief “of the minor’s intent with possession of the knife, an issue reserved to the trier of fact.” (Id. at p. 1199.) “The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife [he was charged with concealing] in a gang-related offense.” (Ibid.) Under those circumstances, the court determined there was insufficient evidence to support the gang enhancement. (Ibid.)
With these parameters in mind, we turn to Jose’s specific assignments of error.
C. Jose’s First Claim of Ineffective Assistance
Jose’s first assignment of error is based on a sequence during direct examination by the prosecutor, when Detective Delgado testified to his opinion that appellants committed the robberies to benefit the Norteno gang.
“[DELGADO]: ... [I]n one of the robberies Mr. Willie Torres was involved, but the other four robberies, Mr. Mejia and Mr. Jose Torres were involved together. We have two documented Norteno gang members associating together actively committing not just one simple robbery, but five total robberies together, associating together, and committing the robberies to benefit, to support the Norteno gang. The money that was obtained and the beer was not just kept for themselves. It was shared with other members of the gang, so thus committing these crimes together, they benefited the gang.
“[LAWRENCE’S ATTORNEY]: I’m going to object. He’s going to the ultimate issue. He’s talking about things that it’s up for the jury to decide, especially telling us that he’s—they committed crimes.
“THE COURT: Overruled. This is the basis for his opinion as relative to the gangs; correct?
“[THE PROSECUTOR]: Yes.”
The prosecutor’s next question addressed the definition of a criminal street gang.
“[THE PROSECUTOR]: Okay. And as you evaluate this case, there’s certain terms that have significance to you such as ‘criminal street gang’; correct?
“A. Yes.
“Q. How do you define ‘criminal street gang’?
“A. I define it by what the Penal Code says, basically it’s three or more persons sharing a common identifying sign, symbol, color for Nortenos. Obviously it’s four dots, numbers ‘one,’ numbers ‘four,’ the Huelga birds, that type of thing, the colors, the color red. And that part of their associating on a regular basis is for the purpose of committing crimes as opposed to other groups who may have a common sign, symbol or color, who may associate on a regular bases, but primary association is not to commit crimes.
Jose asserts defense counsel should have objected to this testimony.
“Q. Heard of the phrase ‘his predicate acts’?
“A. Yes.
“Q. How is that significant to you? How is that helpful to you in differentiating three or more people who doesn’t commit crimes?
“A. Legislature has given a set of 25, now there’s close to 30 predicate acts. Those are crimes real common amongst the gang world, in the gang world, as far as crimes committed by gang members.
“Q. Okay.
“A. And I think I talked about it before, but obviously some of them mean homicide, attempted murder, drive-by shootings, drug distribution, weapons distribution, mayhem, robbery, auto theft, those types of crimes.
“Q. And the other phrase would be using, when you complete your testimony tomorrow, the primary activity. How would you define that?
“A. Primary activities of the gang, I define that as the primary felonious criminal activities of a specific gang. Some gangs are known for certain types of crimes. Some gangs are known for other types of crimes. [¶] Now we’re talking about the Nortenos gang. It falls within under Penal Code Section 186.22, in that the primary felonious criminal activities with the Nortenos gang are robberies, auto theft, drug sales, those types of crimes.” (Italics added.)
Delgado continued by citing to a chart, a prosecution exhibit, which listed specific crimes committed by the appellants and other members of the Nortenos in Stanislaus County, and testified these specific offenses qualified as predicate acts under the statutory definition.
Jose cites to the italicized portions and asserts defense counsel should have objected because Delgado gave “impermissible opinion testimony as to the definition of a crime.” Jose asserts:
“... Detective Delgado gave legal definitions of a crime during his testimony as the People’s gang expert. Detective Delgado was asked to define a ‘criminal street gang’ and he responded by informing the jury that his definition was the same as that found in the Penal Code and he recited portions of the Penal Code definition of the term, mixed together with his personal definition of the phrase. The detective was also asked to and did define the legal meaning of the phrases ‘predicate acts’ and the ‘primary activities’ of a criminal street gang.”
Jose asserts that Delgado’s testimony was similar to the type disapproved in Torres because he gave legal definitions of the crimes in the course of his expert testimony. To the contrary, however, Torres also held “[t]here are some crimes a jury could not determine had occurred without the assistance of expert opinion as to an element of the crime.” (Torres, supra, 33 Cal.App.4th at p. 47, italics omitted, fn. omitted.) It has been repeatedly held that expert testimony is admissible as to the definition of the gang offense and enhancements. Moreover, Delgado’s testimony addressed the specific facts of this case, rather than simply reciting statutory law, as the basis for his opinion that the robberies were committed for the benefit of a criminal street gang, which distinguishes the instant case from Torres, Frank S., and Killebrew. Counsel’s failure to object to this portion of Delgado’s testimony was not prejudicial because it was within the scope of his expertise and did not address the ultimate issue.
D. Jose’s Second Claim of Ineffective Assistance
Jose’s next assignment of error is based on the cross-examination questions asked by Willie’s attorney (Mr. Baker) which triggered the prosecutor’s redirect examination of Delgado. During cross-examination, Willie’s attorney asked Delgado about the elements of the gang enhancement.
“Q. Doesn’t the law also requires that crime is committed with a specific intent to further, assist and promote criminal activity by gang members?
“A. Yes.
“Q. So that second prong committed with the intent, that’s something separate than what happens incidentally. If you rob a store and people benefit, that doesn’t matter unless the crime was intended not just to benefit the gang, but to further, assist and promote criminal activity by the gang?
“[THE PROSECUTOR]: Object, calls for legal conclusion at this time point. He may be an expert, at some point we’re splitting legal hairs.
“THE COURT: Overruled.
“[DELGADO]: Sure.
“ ... Q. Right. So it’s more than just benefitting the gang by providing them with cigarettes and beer?
“A. Right, but we have in this case the furtherance.
“Q. Right. There has to be an intent to further, assist, promote criminal activity by the gang, and that’s not self-proving, is it? [¶] Let me try and be clear. One crime doesn’t further itself, like commit a robbery, that doesn’t further the same robbery, does it?
“A. Well, it furthers the gang in that they didn’t just commit one robbery. It was active gang members committing robbery, after robbery, after robbery together, providing a vehicle by Paul Lopez to commit these robberies, a get-away driver.”
Jose’s attorney objected and moved to strike. The court overruled the objection, and Willie’s attorney asked if committing one robbery furthered or promoted that robbery. The prosecutor objected and the court overruled the objection. Willie’s attorney again asked whether one robbery was intended to further a subsequent robbery. Delgado replied:
“No, but it furthers gang, clearly furthers the gang in that when they plan it and even if it’s just one Norteno or Sureno or gang member going in, the proceeds are benefitting the gang. It’s for bravado. He’s going to brag to all the homeboys, look, what I’ve done. Look how it’s done, you guys do this. It further promotes the gang.”
On redirect examination, the prosecutor again asked Delgado about the Norteno CD which promoted unity among the Norteno gangs. Willie’s attorney objected to Delgado’s recitation of the lyrics as irrelevant and prejudicial. The court sustained the objection and the prosecutor continued:
“… Q. So it’s your—without telling us what the lyrics say, [Willie’s attorney] asked you a number of questions with regards to the gang enhancement, Penal Code Section 186.22(b). Do you remember that --
“A. Yes.
“Q.--portion of his questioning? [¶] And is it your understanding that one of the requirements is that the crime that’s charged that the defendant committed for the benefit of or at the direction of or in association with the gang, you’ll need to have one of those three, benefit, association, direction? You don’t need all three?
“A. Correct.
“Q. So even if the crime doesn’t benefit the gang, if it’s done in association with the gang and the other elements are met, that Penal Code Section in your opinion would be true?
“A. Absolutely, yes.
“Q. And the other element of that enhancement is that the defendant intended to assist, further or promote criminal conduct by a gang member?
“[JOSE’S ATTORNEY]: Your Honor, I would object. Sorry, didn’t mean to interrupt your question.
“[THE PROSECUTOR]: Q. Okay. Is it your understanding that there’s no requirement that a second crime occurred for that to apply?
“[JOSE’S ATTORNEY]: Objection, the third question he’s calling Detective Delgado to make a legal conclusion.
“[LAWRENCE’S ATTORNEY]: I would agree.
“[THE PROSECUTOR]: I’m just responding to some issues [Willie’s attorney] brought up and to [clarify] any possible confusion. Obviously, Judge, when you read the jury [CALCRIM No.] 1401, that’s the last statement of law, and that’s what’s going to apply.
“THE COURT: Objection sustained.” (Italics added.)
Jose cites to the italicized portion above and again asserts defense counsel should have objected because Delgado gave “impermissible opinion testimony as to the definition of a crime” and “gave legal definitions of a crime” as the prosecution’s gang expert. Jose fails to cite to the rest of the exchange, where his attorney raised objections to Delgado’s testimony as constituting impermissible legal opinions, and the court sustained the objection. We find no error given the entirety of the sequence, Delgado’s testimony again remained within the parameters of expert testimony, and it did not cross the boundaries set forth in Frank S., Torres, and Killebrew.
E. Jose’s Third Assignment of Ineffective Assistance
Jose’s third claim of error is based on another segment of the prosecutor’s redirect examination, but actually began during the cross-examination by Lawrence’s attorney, Mr. Wentz. At that time, Lawrence’s attorney asked Delgado if he was being paid for his testimony, and Delgado replied no, that it was part of his job as a police officer to testify in the case.
“[LAWRENCE’S ATTORNEY]: So your job is policeman?
“A. Yes.
“Q. And your [sic] part of the prosecution team?
“A. Well, I guess I’m subpoena[ed] by the prosecution.
“Q. You would like to see the prosecution win?
“A. I believe that the prosecution should win this case, yes.”
On redirect examination, the prosecutor returned to the subject raised by Lawrence:
“Q. Okay. And let’s see. [Lawrence’s attorney] asked you the question why do you believe the prosecution—he asked you do you believe the prosecution should win this case, that the defendants should be found guilty or words that effect. Do you remember that question?
“A. Yes.
“Q. And you said yes; correct?
“A. Yes.
“Q. Would you tell the jury why you believe that?
“A. Well, yes. One thing I was involved in this case right from the beginning, so it’s not that I read a bunch of facts that I wasn’t directly involved with. Other officers’ reports, I was involved in this case. I took part in the interviews. I observed the store videos of the robberies. I spoke with the gang members, or the defendants in this case, Mr. Mejia, Mr. Willie Torres, not Mr. Jose Torres. But the robberies were committed as described in the Penal Code property taken from another person.
“[LAWRENCE’S ATTORNEY]: Objection, Judge. He’s giving an ultimate issue that goes beyond being expert. Now, his expert on robbery. It is what a juror should be doing.
“THE COURT: He’s explaining his answer to your question, overruled.”
Delgado continued that Lawrence had clearly admitted committing a robbery as defined by the Penal Code and as demonstrated on the surveillance videotapes.
“As far as the gang portion of it, with extensive history and with the research I conducted and in speaking personally with the gang members or the members who I determined to be gang members, all of the elements were met clearly that the crime does benefit, as I stated before, the Nortenos criminal street gang. It was done in association with the gang. And in my opinion it was done at the direction of the gang and in furtherance of the gang, promoting the gang with the behavior and with actual commission and the parts they took in the crimes.”
Lawrence’s attorney again objected and moved to strike Delgado’s testimony.
“THE COURT: It was your question.
“[LAWRENCE’S ATTORNEY]: May have been my question. I think it’s improper for him to give legal opinions. He is not a lawyer. This is something that the jury should be doing, not this man.”
The court overruled the objection.
Jose asserts defense counsel should have objected to the italicized segment ante, because Delgado was allowed to give expert testimony “that the prosecution should win this case because he was involved in the investigation.” As the entirety of the exchange demonstrates, however, the issue was raised by Lawrence’s attorney during cross-examination in a clear tactical attempt to undermine Delgado’s credibility, show he was part of the prosecution team and imply he tailored his testimony to point to appellants’ guilt. On redirect examination, the prosecutor attempted to rehabilitate Delgado’s credibility and show that his trial testimony was not colored by his appearance as a prosecution witness. On that point, Delgado testified that his opinions in the case were based on his investigation of the robberies and his personal knowledge of gang activities in Stanislaus County, rather than his designation as the prosecution’s gang expert.
We thus conclude Delgado’s testimony did not improperly address the ultimate issues in this case and Jose’s defense attorney was not prejudicially ineffective for failing to object to the above sequences.
V.
FAILURE TO OBJECT TO DETECTIVE BROCCHINI’S TESTIMONY
Jose also raises a series of ineffective assistance claims based on the testimony of Detective Brocchini. Jose argues counsel should have objected to Brocchini’s testimony as a robbery expert because expert testimony was not necessary on this issue. Jose also argues counsel should have objected to Brocchini’s testimony about the culture and habits of gangs since Brocchini was not qualified as the gang expert in this case. Respondent again asserts Brocchini’s testimony was properly admitted and within the scope of expert testimony.
A. Background
Detective Brocchini was designated as the prosecution’s investigative officer, and extensively testified about the investigation of the robberies, the crime scene examinations, Lawrence’s postarrest statements, and the arrest of Jose and the search of his girlfriend’s house.
The prosecution recalled Detective Brocchini to qualify him as an expert on robbery. Brocchini testified he had been an officer for 21 years and had been assigned to the Modesto Police Department’s robbery/homicide unit since 2000. He had investigated hundreds of robberies since his assignment to that unit, and maybe a thousand or more robberies in his entire career.
Detective Brocchini testified he had qualified in one prior criminal trial as an expert on robberies. Brocchini had attended classes on robbery investigations and also consulted with a noted Los Angeles Police Department robbery/homicide detective on this and other robbery cases. Based on these classes and consultations, Brocchini had “network[ed]” with other detectives and learned about current robbery trends in other cities, “what robbery crews are doing and what new techniques they’re using, what they’re teaching others in prison, and how they’re trying to avoid being captured.” Brocchini also spoke with robbery suspects throughout his career.
The prosecutor advised the court that he intended to qualify Brocchini as an expert on robberies “and ask him specific questions regarding the robberies in question in this case.”
“We’re not going to ask him did a robbery occur necessarily because that’s not something we’re going to cover. We’re going to ask him about whether the robberies are related to each other or not, whether the actions, various people involved in the crimes, what they’re doing, how it fits into his analysis and what a robbery is and how the robbers act as a team as opposed to independent agents. He’s going to talk about the role of the get-away driver and other similar issues.”
Lawrence’s attorney objected and argued Brocchini already addressed these issues in the course of his testimony about the investigation. Lawrence’s attorney argued Brocchini’s proposed testimony “basically ... makes him into a juror. I think that’s up to the jury to render opinions like that.” The court asked the prosecutor whether he was going to ask Brocchini “his opinion as to if they occurred.” The prosecutor replied:
“I’m not going to ask him his opinion if any of the defendants committed a robbery. I’m not going to ask him did a robbery occur, but he’s going to talk about the actions of the various people involved and what they did and what’s the significance of it ....”
The prosecutor argued People v. Dewitt (1983) 142 Cal.App.3d 146 (Dewitt) permitted “an appropriate qualified expert to testify regarding robberies,” and Brocchini’s testimony would stay within those “confines.” The court found: “If you stay within those confines, I’ll permit it. So objection overruled.”
Brocchini’s testimony continued with a discussion of his experience investigating robberies when he was in the narcotics unit, and that he continued to investigate robberies when he joined the police department’s new gang unit in 1995.
“… We focused primarily on criminal street gangs. Any crime committed by a criminal street gang member, I participated in the investigation. I made contact daily with gang members. I spoke to gang members in jail, in prison. I debriefed gang members. I talked about the crimes they committed.”
Brocchini testified that he stayed in the gang unit when he was promoted to detective in 1997.
“Then my primary assignment was investigating gang crimes. And a lot of gang crimes involve robberies, other crimes, too, shootings, murders. But I investigated a lot of robberies working in the gang unit.”
Brocchini testified he had over 200 hours of formal training in criminal street gang, and “[a] lot of that training involved robberies.” He had 60 to 70 hours of formal training “just in robberies, investigations, how to rob, how to investigate a robbery, what kind of questions to ask, what kind of demeanor to use when you’re investigating, interviewing or interrogating someone that was arrested for robbery.”
Brocchini testified he had qualified one time as an expert in robbery, and 30 to 40 times as a criminal street gang expert.
“Q. Would you tell the jury how your expertise in street gang is something you’re relying upon to render your opinion regarding robberies in this case?
“A. Well, I’ve spent a lot of time working in the gang unit, and I’ve arrested a lot of people. I’ve contacted a lot of people. I’ve interviewed family members of gang members that have been arrested for crimes ranging from murder to robbery. And so I think my time in the gang unit, because I’ve focus[ed] in the gang unit, and robbery/homicide we focus—we don’t go to domestic violence, and we don’t go to a lot of crimes. We focus on the bad of the bad. And that is--that’s what we learn. And a lot of times it’s in a good setting. I mean we maybe have contact with a gang member on the street, and we talk about crimes they got away with because they like to do that. They like to brag. That’s just what they like to do. Maybe they tell me where they hid their guns to get away.
“I listen to a lot of jail phone calls. Arrest somebody for robbery, first thing I do, go to the jail, listen to what they tell their parents, what they tell their girlfriend or what they tell their boyfriend because they tell them things like, ‘Cops just got me. Get under the doghouse and find the gun buried and put it away.’ So I learned from their own mouth what they do and how they get away with crimes.”
B. Analysis
Jose contends defense counsel should have objected to the prosecution’s introduction of Detective Brocchini “as a so-called robbery expert in this case because robbery is not sufficiently beyond the common experience of the jurors that the opinion of an expert would assist the trier of fact,” and Brocchini’s testimony went to the ultimate issue of the appellant’s guilt.
As explained in section IV, ante, an expert may give opinion testimony that is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) Moreover, “[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805.) It is recognized that “[a] bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible.” (Killebrew, supra, 103 Cal.App.4th at p. 651.) Consequently, there is “a large element of judicial discretion involved.” (People v. Wilson (1944) 25 Cal.2d 341, 349.)
Also as set forth in section IV, ante, numerous cases have found that gang experts may testify to issues which coincide with the ultimate issue of guilt. There have been similar holdings as to whether substantive offenses such as thefts and robberies, as opposed to a gang enhancement, have been committed. For example, in People v. Clay (1964) 227 Cal.App.2d 87 (Clay), the defendant and another man, Davis, were seen at the checkstand of a market. The defendant asked the cashier for items which required the cashier to turn away to retrieve. Davis was seen with his hand coming out of the till. Later, money was discovered missing. (Id. at pp. 89-93.) Clay held it was proper to permit a police officer to testify, as an expert, about the modus operandi of the crime of “till tapping” and specifically that a hypothetical set of facts similar to those in Clay revealed the “usual procedure of till tappers.” (Id. at p. 92.) Clay reasoned that the testimony “enabled the jury to see the possibility of a relationship between the acts of the two men. This gave meaning to the evidence and permitted the jury to appreciate that defendant’s activities while in themselves seemingly harmless, when considered with those of Davis, might well have been part of a cleverly planned and precisely executed scheme known as ‘till tapping.’” (Id. at p. 95.)
In People v. Hardy (1969) 271 Cal.App.2d 322, the defendant was involved in two incidents in which money was discovered missing from a business establishment after a proprietor’s attention had been diverted. A police officer testified as an expert, based on hypothetical facts similar to those involved in the two incidents, that in his opinion a till tap had taken place at the two establishments. Hardy held the testimony was properly admitted pursuant to Clay. (Id. at pp. 327-328.)
In DeWitt, supra, 142 Cal.App.3d 146, relied upon by the prosecutor in this case, the two defendants were discovered in an area containing expensive homes, sitting in a stolen car which contained loaded firearms that had also been stolen and two pairs of gloves. One of the defendants was wearing a wig, cap, and sunglasses. (Id. at pp. 148-149.) A police expert testified at the preliminary hearing “that it was reasonable to conclude that two felons, one wearing a disguise and each possessing a loaded handgun, found skulking about an affluent residence while in possession of handcuffs and a change of clothing might well have agreed to and embarked upon the commission of a robbery.” (Id. at p. 149, fn. omitted.) At the preliminary hearing, the court set aside the charge of conspiracy to commit robbery, but Dewitt reversed and remanded, and held there was sufficient evidence to hold the defendant to answer. Dewitt held the expert’s testimony “was both admissible and sufficient to support the finding of conspiracy to commit robbery, had the magistrate entertained any qualms regarding the evidence of this offense.” (Id. at p. 151.)
“While it has unfortunately become more commonplace for unsuspecting, law-abiding citizens to be exposed to the modus operandi of armed robbers, such conduct is nonetheless a proper subject for expert testimony in an appropriate case. [Citations.] This is such a case. On the record herein under review, particularly in light of respondents’ assertion that their conduct was not necessarily that of persons embarked upon a conspiracy to commit robbery, the opinion of [the police expert] was clearly quite helpful to the magistrate. It served the salutory function of clarifying the focus of the inquiry, while clarifying the effect, if any, of respondents’ somewhat disingenuous arguments regarding an innocent purpose for their armed presence at the entrance to a remote and expensive dwelling. [Citations]” (DeWitt, supra, 142 Cal.App.3d at p. 151.)
In Harvey, supra, 233 Cal.App.3d 1206, an officer was permitted to testify as an expert on cocaine trafficking that various activities in which the defendants had been seen to engage were drug related or consistent with the activities of drug trafficking. (Id. at pp. 1216-1217.) The officer also testified that one party “was a ‘distributor/trafficker,’” and that two others “were cocaine dealers.” (Id. at p. 1217.) The court held the testimony was proper because “the subject matter was sufficiently beyond the common expertise of the trier of fact to render expert testimony not only helpful but necessary for an understanding of the meaning and import of various actions.” (Id. at p. 1228.)
“… [The expert] did not directly opine that defendants were guilty, though he did testify as to various ‘ultimate issues.’ An expert is not precluded, however, under the law from testifying as to the ultimate issue in the case. [Citation.] Though the ‘ultimate issue’ rule was once the law in this state and others, it is an archaic concept and is no longer a proper basis for excluding expert testimony. Evidence Code section 805 codifies the modern view, and states that, ‘Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.’ ‘We believe, ... that there is no hard and fast rule that experts may not be asked questions that coincide with the ultimate issue in the case, and that the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large measure of discretion involved. We believe further that the modern tendency is against making a distinction between evidentiary and ultimate facts as subjects of expert opinion.’ [Citation.]” (Harvey, supra, 233 Cal.App.3d at p. 1227.)
Finally, in People v. Singh (1995) 37 Cal.App.4th 1343 (Singh), an expert was permitted to testify that numerous vehicle collisions in which one of the defendants was involved were “staged for the purposes of establishing property damage or personal injury insurance claims.” (Id. at p. 1363.) On appeal, the defendant argued the experts improperly testified as to the ultimate issues. Singh held the experts’ testimony was admissible:
“… [The defendant’s] posture at trial was that the collisions were not staged. Short of an admission from him or an accomplice, the prosecution was left to circumstantial evidence. The experts testified in order to explain the relationship between the various pieces of evidence, e.g., the extent of damage, type and extent of injuries, number of passengers in the car, use of a common caregiver or attorney, etc. Their opinions, that the collisions were staged, were based upon the integration of these factors. These opinions were relevant because [the defendant] was charged with staging fraudulent collisions, a sophisticated course of conduct like the drug smuggling and distribution in Harvey.” (Singh, supra, 37 Cal.App.4th at pp. 1379-1380.)
The common thread running through these decisions is that even expert testimony that is tantamount to the expression of an opinion on the issue of guilt may be permissible if it is based on inferences which, to use the words of Evidence Code section 801, are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) Thus, a law enforcement officer, because of his experience in the investigation of certain types of crime, may perceive the significance of particular facts, and draw inferences from those facts, which would not be apparent to a person lacking that experience. In such a case, the officer’s opinion “would assist the trier of fact” and is properly admitted. (Ibid.)
Such is the situation in this case. It may have seemed obvious that the charged offenses in this case were robberies and the only contested issues were the identities of the two robbers and the getaway driver. However, Detective Brocchini testified to the similar methods in which the robberies in this case were committed, which was extremely relevant evidence to tie together the multiple robberies as part of a common plan instead of isolated incidents committed throughout Stanislaus County. This testimony was also relevant as it related to Detective Delgado’s expert testimony that the robberies were committed to benefit the Nortenos.
Jose complains that even if Detective Brocchini was properly permitted to testify as a robbery expert, he also testified as a gang expert about the customs and practices of the Norteno gang, and he was never qualified to offer such expert testimony. Jose concedes that much of this testimony was elicited on cross-examination by Willie’s defense attorney, and that the prosecutor followed up on these issues in redirect examination, but contends his defense attorney should have objected. Jose complains that Brocchini’s testimony “was nothing more than his inadmissible opinion that the same two people committed the robberies based on what … [Lawrence] told him and what he saw on the video tapes,” and the jury was “well equipped to, and could have determined whether [Jose] was the person” who committed the robberies with Lawrence “without Brocchini’s opinion that [Jose] was the person who committed all these crimes.”
As set forth ante, however, the prosecutor qualified Brocchini to testify as a robbery expert based on his years of experience investigating all types of robberies, including those committed by members of criminal street gangs. Brocchini’s discussion of the connection between convenience store robberies and gang activities, based on the manner in which these robberies were committed, was within the scope of his expertise.
Jose also complains that Brocchini improperly testified to appellants’ guilt when he said that the robberies were related to each other based on the similar methods used by the suspects, and that the facts showed the same perpetrators committed all the robberies. A careful reading of Brocchini’s testimony, however, shows that he relied upon the similar methods used in each robbery to give his opinion that the same two men committed all the offenses. Brocchini never testified to his expert opinion that Jose and Lawrence were those two men. As explained, ante, Brocchini testified at this trial as both the chief investigating officer and an expert on robberies. He occasionally mixed both roles when he testified about the case. While he did not testify to his expert opinion that Jose and Lawrence were the two people who committed the robberies, he testified as an expert about the common methods used by the same two people during each robbery:
“[The two robbery suspects] have the same physical descriptions, same gun used, same clothing. In two of the robberies, they’re wearing exact same clothing. And in the other two, they’re wearing the exact same clothing.
“The way they committed the robbery, like I said before, sometimes they do different jobs, meaning the taller subject might go to the clerk, but he’ll also have the gun. And the shorter one will either stand guard or get something else. Or the shorter one will go to the clerk, and taller one would stand guard. That’s not unusual. They take turns in robberies ....”
Brocchini also addressed the witnesses’ identifications of the robbery suspects, but he did so based on his role as an investigator and the manner in which the eyewitnesses described the suspects—Mazloumi identified Jose’s tattoo on his neck as similar to the tattoo displayed by the suspect in the Quick-Stop robbery; Niave identified Lawrence’s tattoo and identified Lawrence at the preliminary hearing and trial as the one of the Stop-and-Save robbers; Wisler identified Lawrence at the in-field showup shortly after the Standiford AM/PM robbery, and identified Jose from a photographic lineup and at the preliminary hearing and trial; Maria Santana identified Jose as the man who jumped off the roof, asked for a ride, and said he was running from the police; and Lawrence was found in the general vicinity as where Jose appeared at the Santana house. Brocchini also testified that the police saw the robbery suspects jump out of the white truck at the canal bank, Willie was apprehended as the driver, Lawrence was hiding in a residence adjacent to the canal bank, and Jose turned up nearby at the Santanas’ house.
Jose has raised these issues in the context of ineffective assistance. Even if Jose’s defense attorney should have objected to portions of Brocchini’s testimony, the failure to object was not prejudicial given the overwhelming nature of the eyewitness testimony and the gang evidence. To the extent that Brocchini’s gang testimony may have been inappropriate, Detective Delgado properly testified as the prosecution’s gang expert, addressed the same issues which Brocchini briefly touched upon, and offered additional expertise into the nature and practices of the Norteno gang in Stanislaus County and the manner in which robberies are committed to financially benefit the gang.
VI.
THE COURT’S INSTRUCTIONS ON THE GANG ENHANCEMENTS
Lawrence contends the gang enhancements must be reversed because the court failed to grant the defense request to clarify CALCRIM No. 1401, the instruction on the gang enhancement, pursuant to language in Garcia, supra, 395 F.3d 1099. Respondent argues the court properly denied the proposed modification because it was an incorrect statement of the law. This issue is applicable to Jose and Willie.
A. Background
During the instructional phase, the parties discussed the appropriate instructions for the gang enhancements. Willie’s defense attorney requested the court to modify CALCRIM No. 1401, as to the gang enhancement. The pattern instruction states in relevant part:
“To prove this allegation, the People must prove that:
“1. The defendant (committed/ [or] attempted to commit) the crime (for the benefit of[,]/ at the direction of[,]/ [or] in association with) a criminal street gang;
“AND
“2. The defendant intended to assist, further, or promote criminal conduct by gang members.” (CALCRIM No. 1401.)
Willie’s attorney requested to modify the second sentence to add the italicized word:
“The defendant intended to assist, further, or promote subsequent criminal conduct by gang members.”
Willie’s attorney argued the italicized word should be added based on People v. Martinez (2004) 116 Cal.App.4th 753 (Martinez) and Garcia, supra, 395 F.3d 1099. He asserted the pattern instruction did not logically make sense, because the enhancement was designed to punish conduct that “is intended to further, assist or promote subsequent criminal conduct such as putting fear into a neighborhood, stealing guns to go use in another crime, even if they don’t get to go use in another crime, but stealing them intent to do that ….”
The prosecutor replied that Garcia was a Ninth Circuit case which had been criticized, Martinez was not applicable because it did not involve a gang enhancement, and the pattern instruction was a correct statement of the law. Willie’s attorney replied that the gang enhancement required the commission of one crime “with intent to further subsequent criminal activity by any gang member whether or not subsequent criminal activity actually happens. Just like a burglary, you have to enter with intent to commit a crime therein whether or not you actually do.”
The court did not specifically rule on the instructional request by Willie’s attorney, but impliedly denied the request because it gave the pattern instruction as set forth ante.
B. Analysis
On appeal, Lawrence claims his defense counsel was prejudicially ineffective for failing to join in the instructional request made by Willie’s attorney, and the court should have modified CALCRIM No. 1401 to include the word “subsequent” based on Martinez and Garcia.
Appellants were charged with section 186.22, subdivision (b)(1) enhancements that they committed the robberies for the benefit of a criminal street gang. As we will explain in section VII, post, “[a] gang enhancement does not apply unless the crime was ‘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 ....’ (§ 186.22, subd. (b)(1).)” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322 (Villalobos); People v. Morales (2003) 112 Cal.App.4th 1176, 1197 (Morales).) As to the second prong of the enhancement, “specific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members ....’” (Morales, supra, 112 Cal.App.4th at p. 1198; see Villalobos, supra, 145 Cal.App.4th at p. 322.)
At trial, Willie’s attorney requested modification of the instruction on the specific intent element of the gang enhancement based on Martinez and Garcia. Lawrence cites to the same two cases in support of his ineffective assistance claim. However, Lawrence’s reliance on Martinez is misplaced because it is clearly distinguishable from the instructional issue for the gang enhancement. In Martinez, the trial court imposed a gang registration requirement on the defendant pursuant to section 186.30, as part of his sentence following revocation of probation and pleading no contest to auto burglary. Martinez found the evidence did not support the finding that the crime was gang related. (Martinez, supra, 116 Cal.App.4th at pp. 756-757, 761.)
“Here, nothing in the record connected defendant’s conviction to gang activity. First, defendant’s commission of a probation violation through his association with a known gang member, while certainly gang related, was not a crime at all, and hence cannot serve as the basis for the registration order, as the Attorney General has acknowledged. Auto burglary is a crime, but not one necessarily gang related, and the circumstances of the offense as described in the record before us fail to connect the offense with defendant’s gang activities. While the probation report indicates that the auto burglary was committed by defendant and a companion, the accomplice is not identified as a gang member. Nor does the probation report give us any indication that this particular auto burglary, even if committed by someone identified as a ‘certified Sureno gang member,’ was directed by, associated with, or benefited his criminal street gang. Neither the investigating officer nor the probation officer even suggested that the auto burglary was other than a crime intended to benefit defendant personally. We agree with defendant that there is no evidentiary basis in the record to impose upon him the burden of gang offender registration pursuant to section 186.30. [Citations.]” (Martinez, supra, 116 Cal.App.4th at p. 762, fn. omitted, second italics added.)
However, Martinez also emphasized:
“We do not conclude that a defendant’s personal affiliations and criminal record are without consequence in finding a ‘gang related’ crime within the meaning of section 186.30. To the contrary, a defendant’s history of participation in gang activities or criminal offenses may prove that a crime not otherwise or intrinsically gang related nevertheless falls within the meaning of section 186.30. Thus, a crime committed by a defendant in association with other gang members or demonstrated to promote gang objectives may be gang related. However, the record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.” (Martinez, supra, 116 Cal.App.4th at p. 762, first italics added.)
Thus, Martinez did not address the specific intent element of the gang enhancement, but clearly held that a current crime, committed by a defendant in association with other gang members or promoting gang objectives, may be gang related.
Lawrence’s primary support for his instructional claim is Garcia, where the defendant and two other people robbed the victim of a bicycle and $14.85. A police officer testified as the gang expert that the defendant and his associates were gang members, the defendant’s gang was “‘turf oriented’” and its turf included the area where the robbery occurred; he also testified about three other robberies committed by gang members; and stated that robberies, often involving small sums of money, were one of the primary activities of the gang. The defendant was convicted of robbery and the jury found the gang enhancement allegation true. (Garcia, supra, 395 F.3d at pp. 1101-1102.)
As framed by the Ninth Circuit majority in Garcia, the issue on appeal was whether the evidence was sufficient “to support the jury’s finding of the required specific intent: that is, the intent to ‘promote, further, or assist in’ other criminal activity of the gang apart from the robbery of conviction.” (Garcia, supra, 395 F.3d at pp. 1100-1101, italics added.) In concluding the evidence was insufficient, the majority found nothing in the record “that would support an inference that Garcia robbed Bojorquez with the specific intent to facilitate other criminal conduct by the E.M.F. The evidence indicates that Garcia was a gang member and that he robbed Bojorquez in an area known to be in the heart of the gang’s ‘turf.’ Detective Hernandez, the gang expert, testified that the gang was ‘turf oriented,’ and he described three other robberies committed by E.M.F. members in El Monte during the few months prior to Garcia’s offense. But there is no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime. There is nothing on the record that connects the ‘turf-oriented’ nature of the gang with the commission of robberies generally, or, more importantly, with the commission of this robbery in particular. There is no testimony that protection of turf enables any other kind of criminal activity of the gang. The expert’s testimony is singularly silent on what criminal activity of the gang was furthered or intended to be furthered by the robbery of Bojorquez.” (Id. at p. 1103, italics added, fn. omitted.) The majority agreed with the magistrate, who had found nothing in the record “‘which would support an inference that [Garcia] robbed Bojorquez in order to facilitate other gang related criminal operations within El Monte.’” (Id. at p. 1103.)
The dissenting judge in Garcia took issue with the majority’s interpretation of section 186.22, subdivision (b), and concluded the statute did “not require proof that the crime of conviction was committed with the intent to further some other specifically identified crime or category of crimes ....” (Garcia, supra, 395 F.3d at p. 1105 (dis. opn. of Wallace, J.).) He also concluded that the evidence gave rise to a reasonable inference that, when Garcia asked Bojorquez where he was from and identified himself as an E.M.F. member, Garcia intended to intimidate Bojorquez and the owner of the store in which the incident occurred, so that Bojorquez would know not to intrude on E.M.F. turf in the future and so that the store owner would submit to the gang’s dominance. The dissenting judge further opined that it could probably be concluded that this type of intimidation would facilitate the gang’s control of the area and make it easier to commit crimes there in the future. (Id. at pp. 1106-1107.)
As a lower federal court decision, Garcia is not binding on this court. (See People v. Hoag (2000) 83 Cal.App.4th 1198, 1205; People v. Burnett (2003) 110 Cal.App.4th 868, 882.) Moreover, Garcia has been criticized by other appellate courts. (People v. Romero (2006) 140 Cal.App.4th 15, 19 (Romero); People v. Hill (2006) 142 Cal.App.4th 770, 774 (Hill).) Romero held the present crime is sufficient to satisfy the specific intent element because the criminal conduct created a reasonable inference that the defendant possessed the specific intent to “promote, further, or assist” gang activity and was sufficient to uphold the gang enhancement. (Romero, supra, 140 Cal.App.4th at p. 20.) “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct.” (Id. at p. 19, citing § 186.22, subd. (b)(1).) Hill similarly held that section 186.22, subdivision (b) does not require that defendant’s intent to enable or promote criminal endeavors by gang members relate to criminal activity apart from the offense presently charged. (Hill, supra, 142 Cal.App.4th at p. 774 .)
Section 186.22, subdivision (b), does not require an intent to promote criminal gang activity in addition to the current offense. (Hill, supra, 142 Cal.App.4th at pp. 773-774; Romero, supra, 140 Cal.App.4th at p. 19.) The trial court properly denied Willie’s request to modify CALCRIM No. 1401, such that the failure of Lawrence’s attorney to join in the modification request was not prejudicial.
VII.
SUBSTANTIAL EVIDENCE OF GANG OFFENSES AND ENHANCEMENTS
Jose contends his conviction in count VII for active participation in a gang, and the gang enhancements attached to the other substantive counts, are not supported by substantial evidence and must be reversed. Willie separately contends there is insufficient evidence to support the gang enhancement attached to his conviction for robbery in count V. Respondent argues the jury’s findings on the gang offenses and enhancements are supported by substantial evidence. These issues are applicable to Lawrence.
A. Substantial Evidence
We begin with the well-settled standards to assess the sufficiency of the evidence to sustain a criminal conviction. The reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Earp (1999) 20 Cal.4th 826, 887.) The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on “‘isolated bits of evidence.’” (People v. Johnson, supra, 26 Cal.3d at p. 577; People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)
We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (People v. Bradford, supra, 15 Cal.4th at p. 1329.) We do not reweigh evidence or redetermine issues of credibility. (Ferraez, supra, 112 Cal.App.4th 925, 931.)
An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) It must not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (People v. Pitts (1990) 223 Cal.App.3d 606, 884.) Furthermore, an appellate court may reject the testimony of a witness who was apparently believed by the trier of fact only if that testimony is inherently improbable or impossible of belief. (People v. Jackson (1992) 10 Cal.App.4th 13, 21; People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) An appellate court may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin, supra, 18 Cal.4th 297, 331.)
To prove a state of mind such as knowledge, “‘[r]eliance on circumstantial evidence is often inevitable when ... the issue is a state of mind such as knowledge.’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 379.) “Knowledge, like intent, is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise.” (People v. Buckley (1986) 183 Cal.App.3d 489, 494-495.) “A requirement of knowledge is not a requirement that the act be done with any specific intent. [Citations.] The word ‘knowing’ as used in a criminal statute imports only an awareness of the facts which bring the proscribed act within the terms of the statute. [Citation.]” (People v. Calban (1976) 65 Cal.App.3d 578, 584.)
As explained ante, it is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. (Valdez, supra, 58 Cal.App.4th at p. 506; Ferraez, supra, 112 Cal.App.4th at pp. 930-931; Frank S., supra, 141 Cal.App.4th at p. 1196.) The subject matter of the culture and habits of street gangs meets the criteria for the admissibility of expert opinion because such evidence is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Gardeley, supra, 14 Cal.4th at p. 617; Frank S., supra, 141 Cal.App.4th at pp. 1196-1197.)
B. The Substantive Gang Offenses
Jose and Lawrence contend their convictions in count VII for violation of section 186.22, subdivision (a), the substantive gang offense, must be reversed for insufficient evidence.
As explained ante, the Street Terrorism Enforcement and Prevention Act (STEP Act, §§ 186.20-186.33) creates both a substantive offense under section 186.22, subdivision (a), and a sentence enhancement under section 186.22, subdivision (b)(1). (Jose P., supra, 106 Cal.App.4th at p. 466.) Section 186.22, subdivision (a) defines the substantive offense and states:
“Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished [as specified].”
“... A person need not be a gang member to be guilty of violating section 186.22(a). [Citation.] But he or she must have had more than a nominal or passive involvement with the gang, knowing of the gang’s pattern of criminal activity, and must have aided and abetted a separate felony committed by gang members. [Citation.]” (Jose P., supra, 106 Cal.App.4th at p. 466.) “The provision ‘punishes active gang participation where the defendant promotes or assists felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself.’ [Citation.] Thus, it ‘applies to the perpetrator of felonious gang-related criminal conduct ....’ [Citation.]” (Ferraez, supra, 112 Cal.App.4th at p. 930.)
“The substantive offense defined in section 186.22(a) has three elements. Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, is the first element of the substantive offense defined in section 186.22(a). The second element is ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity,’ and the third element is that the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ (§ 186.22(a).)” (People v. Lamas (2007) 42 Cal.4th 516, 523; see also People v. Bautista, supra, 125 Cal.App.4th 646, 656, fn. 5; Robles, supra, 23 Cal.4th 1106, 1111, 1115; Jose P., supra, 106 Cal.App.4th at pp. 466-467.)
By its plain terms, section 186.22, subdivision (a) applies only to a defendant who has knowledge that the members of his or her criminal street gang “engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (a).) Under section 186.22, subdivision (e), a “‘pattern of criminal gang activity’” is established by two statutorily enumerated offenses occurring within a three-year period, so long as at least one offense occurred after 1988, “and the offenses were committed on separate occasions, or by two or more persons.” Thus, to violate section 186.22, subdivision (a), a defendant must be aware that his or her gang members participated in at least two offenses meeting the statutory requirements within a three-year time frame. The charged offense can serve as one of the predicate offenses. (People v. Loeun (1997) 17 Cal.4th 1, 8.) However, the prosecution need not prove the defendant had actual knowledge of the specific predicate offenses relied upon by the People. (Gamez, supra, 235 Cal.App.3d 957, 975-976.)
In Robles, the court held the prosecution failed to prove the defendant was an active participant in a criminal street gang. The defendant had been standing on a street corner with a group of people in gang attire when police observed him look at a marked police car and then discard an object into a planter. (Robles, supra, 23 Cal.4th at p. 1109.) The police retrieved a loaded .22-caliber revolver from the planter and arrested the defendant. The defendant told police he was a member of “La Mirada Locos,” a local street gang. A detective testified that members of that gang had committed a series of armed robberies a month before the defendant’s arrest, and two gang members had stabbed a high school student on a bus the year before. (Id. at pp. 1109-1110.) The detective testified, however, that he had no reason to believe that the defendant knew about the crimes. (Id. at p. 1110.) Robles held the evidence failed to establish the defendant was an “active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22” (§ 12031, subd. (a)(2)(C)), because no evidence was introduced to show that the defendant knew members of the gang engaged in a pattern of criminal activity. (Robles, supra, 23 Cal.4th at p. 1115.)
C. Gang Enhancements
The same substantial evidence standard applies when determining whether the evidence was sufficient to sustain a jury’s finding on a gang enhancement. (Duran, supra, 97 Cal.App.4th at pp. 1456-1457; Villalobos, supra, 145 Cal.App.4th at pp. 321-322.) The trier of fact may rely upon expert testimony about gang culture and habits to reach a finding on the gang allegation. (Ferraez, supra, 112 Cal.App.4th at p. 930; Frank S., supra, 141 Cal.App.4th at p. 1196.)
“A gang enhancement does not apply unless the crime was ‘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 ....’ (§ 186.22, subd. (b)(1).)” (Villalobos, supra, 145 Cal.App.4th at p. 322; see Morales, supra, 112 Cal.App.4th 1176, 1197.) As to the second prong of the enhancement, “specific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members ....’” (Morales, supra, 112 Cal.App.4th at p. 1198, italics in original; see Villalobos, supra, 145 Cal.App.4th at p. 322.) Gang membership alone cannot prove the requisite specific intent. (Gardeley, supra, 14 Cal.4th at p. 623.) “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. Citation.” (Villalobos, supra, 145 Cal.App.4th at p. 322.)
In Morales, supra, 112 Cal.App.4th 1176, the defendant and two fellow gang members committed a robbery. On appeal, the defendant argued that he lacked the requisite specific intent for the gang finding because the evidence showed only that the three men belonged to the same gang. Morales rejected that argument, and held there was sufficient evidence the defendant intended to commit the robbery in association with other gang members and that it was therefore “fairly inferable that he intended to assist criminal conduct by his fellow gang members.” (Id. at p. 1198.)
D. Analysis
Jose asserts count VII, the substantive gang offense, and the gang enhancements attached to the other charges, must be reversed because “the evidence is insufficient to establish that these robberies were committed for the benefit of, at the direction of, or in association with a criminal street gang and that [Jose] had the specific intent to promote, further, or assist in any criminal conduct by a gang member.” Jose relies on Frank S., Martinez, and Garcia and argues that, as in those cases, the record herein “is devoid of evidence that [Jose] committed these particular crimes with the specific intent of furthering other criminal gang activity or to benefit the gang.” Jose argues the robberies were “personal” offenses and not gang-related, and cites to his postarrest statements to his girlfriend that he committed the robberies for some “‘easy-ass money.’” Jose also argues there was nothing inherent about the robberies to make them gang-related—there was no evidence the robberies were committed in retaliation against a rival gang or someone who had disrespected the Nortenos, the suspects did not call out their gang name during the robberies, and the display of red bandanas was simply happenstance because they were used as masks instead of gang emblems.
Willie similarly relies upon Frank S., Killebrew, Martinez and Garcia and argues there is insufficient evidence that he committed the robbery in count V for the benefit of a gang, Delgado’s expert testimony amount to little more than speculation on his part, and appellants’ apparent gang activities were not connected to the robberies.
In sections IV and VI, ante, we extensively discussed Frank S., Killebrew, and Martinez as to the permissible scope of expert testimony, and whether the expert testimony provided substantial evidence of gang offenses and enhancements. As to appellants’ substantial evidence argument, the entirety of the record contains overwhelming evidence to satisfy the specific intent element. The prosecution introduced a mountain of evidence as to each appellants’ active membership in the Norteno gang, their knowledge and involvement in the Nortenos’ criminal activities, and refuted their claims that they were dropouts, based on the timing and appearance of various gang tattoos on their bodies, and their regular association with other active Norteno members who had been or were being arrested for gang-related offenses. While Lawrence was from San Jose, and Jose and Willie lived in Stanislaus County, the prosecution linked the appellants together since Lawrence admitted that he knew their older brother, Paul “Mug” Lopez, a family friend who was deeply involved in Norteno activities. The older model white Chevrolet, which the officers chased after the final robbery, and appeared consistent with the getaway vehicle used after the first robbery, was registered to Lopez’s wife. Jose and Lawrence displayed Norteno signs and symbols during the robberies—the use and/or display of red handkerchiefs, the “N” belt buckle, and their clearly visible gang tattoos—and they used a getaway car linked to an important player in the Norteno gang, and driven by one of his younger brothers.
As set forth in section IV, ante, Detective Delgado properly testified to his opinion that the robberies were committed to benefit the Norteno gang, rather than simply generic robberies to benefit the individual suspects. Delgado relied upon the revealing statements made by Lawrence during his postarrest interview. While Lawrence steadfastly denied that he knew Jose or Willie, or that he knew any of Mug’s brothers, he also stated that he never kept any of the cash or merchandise stolen from the convenience stores, and instead turned everything over to a third party, who gave some of the money back to him. When Jose arrived at the Santantas’ house via their roof, he asked for a ride and used a slang Spanish word and said he did a “jale,” which meant he did “a job.” Moreover, Jose was angry that his girlfriend’s consent to the search of her house after his arrest because the police found gang-related materials there, and admonished her not to send any gang photographs to the jail.
Detective Delgado relied upon this evidence and explained, based on his prior investigations and research into gang cases, that the appellants were doing a job for their Norteno gang to reap money from the stores and turn in the proceeds to their handlers who were already in jail. Delgado did not simply rely on rumor or speculation, but offered testimony based on his extensive investigations into the robberies, the facts adduced from that investigation, and his prior interviews with robbers and gang members who explained the Norteno practice of using lower-level gang members to finance their activities.
Jose also cites to Garcia, supra, 395 F.3d 1099 in support of his challenge to the sufficiency of the evidence as to the gang enhancement. As we explained in section VI, ante, Garcia is a lower federal court decision and not binding on this court. (See People v. Hoag, supra, 83 Cal.App.4th 1198, 1205.) Moreover, we agree with the criticism of Garcia contained in Romero and Hill. (Romero, supra, 140 Cal.App.4th at p. 19; Hill, supra, 142 Cal.App.4th at p. 774.)
We thus conclude there was overwhelming direct and circumstantial evidence to support the jury’s verdicts on the substantive gang offenses and gang enhancements, which refutes appellants’ claims that they merely committed the robberies for their own personal benefit.
VIII.
THE JURY’S QUESTION ABOUT THE GANG ALLEGATIONS
Jose contends the court failed to properly respond to the jury’s questions about the gang instructions. Jose asserts that the court merely referred the jury back to the pattern instructions, and that it should have specifically replied to each question to clarify any confusion as to the gang issues. Respondent argues the court did not abuse its discretion when it referred the jury to the instructions already given. This issue is applicable to Lawrence and Willie.
A. The Gang Instructions
The jury received several pattern instructions on the gang substantive offenses and enhancements. CALCRIM No. 1400, active participation in a criminal street gang, stated in relevant part:
“Defendants are charged in Count VII with participating in a criminal street gang. To prove defendant is guilty of this crime, [the] People must prove, No. 1, defendant actively participated in a criminal street gang; two, when the defendant participated in the gang, he knew that members of the gang engaged in or have engaged in [a pattern of] criminal gang activity; No. 3, further [sic] willfully assisted, furthered, [or] promoted felonious criminal conduct by members of the gang.
“‘Active participation’ means involvement with a criminal street gang in a way that is more than passive or in name only.
“The People do not have to prove defendant devoted all or a substantial part of his time or effort to the gang or that he was an actual member of the gang.
“A criminal street gang is any ongoing organization, association or group of three or more persons, whether formal or informal, No. 1., that has a common name or common identifying sign or symbol; No. 2, that has [as] one or more of its primary activities the commission of ... [robbery, burglary, grand theft, auto theft, possession of methamphetamine for sale, or carjacking]; and, three, whose members were acting, whether acting alone or together, engaged or have engaged in a pattern of criminal gang activity.
“In order to qualify as primary activity, the crime must be one of the group’s chief or principal activities rather than occasional act committed by one or more persons who happen to be members of the group.”
The jury also received CALCRIM No. 1401 as to the gang enhancements, which states:
“If you find the defendants Jose Torres and Lawrence Mejia guilty of the crimes charged in Count I through V, Willie Torres, Count V or Jose Torres in Count VI, you must then decide whether for each crime [the] People have proved the additional allegation that the defendant committed that crime for benefit of, at the direction of or in association with the criminal street gang. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.
“To prove this allegation, [the] People must prove, No. 1, the defendant committed the crime for the benefit, at the direction of or in association with a criminal street gang; and, No. 2, the defendant intended to assist, further or promote criminal conduct by gang members.”
B. The Jury’s Questions
The jury sent several notes to the court during the deliberations. The reporter’s transcript does not contain discussions between the court and counsel as to the contents of the jury’s notes or how to reply. Moreover, the reporter’s transcript reflects the court did not orally respond to the jury’s notes. Instead, the court replied by writing back to the jury on each note, and the minute orders state the court replied to the notes “pursuant to agreement of counsel.”
The jury’s initial notes requested to hear testimony and watch the robbery videotapes. The jury’s other notes, however, addressed the gang instructions. The jury requested the court “to tell us if the predicate act must be met to meet criminal street gang definition.” The court wrote on the jury’s note: “Please refer to jury instruction 1400.”
Next, the jury asked: “Is 1400 the same as Penal Code [section] 186.22A, and if not, what is the difference?” The court wrote back: “For both questions: can you please be more specific in your question(s)?”
The jury’s next note stated:
“We need clarification on 1401. Part I the defendant committed the crime ... in association with a criminal street gang. Does this mean association other than during the crime or only during the time of the crime? [¶] Also, how many people are required to be considered ‘associating[?]’”
The court wrote back on the note: “For both questions: please refer to the jury instructions with which you have been provided.”
The jury next asked: “To commit the crime in association with a criminal street gang does it only have to have two people present during the crime?” The court wrote back: “Please refer to the jury instructions regarding gangs.”
C. Analysis
Jose contends the court failed to properly respond to the jury’s questions in violation of section 1138, which states:
“After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” (§ 1138.)
The trial court has a mandatory duty to respond to a jury’s request for guidance concerning the law, but it need not elaborate on standard instructions. (See People v. Smithey (1999) 20 Cal.4th 936, 985; People v. Beardslee (1991) 53 Cal.3d 68, 97; § 1138.) A court may instruct only on points of law; factual instructions are prohibited. (People v. Santos (1990) 222 Cal.App.3d 723, 746; see §§ 1093, 1127.)
“… Jury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury’s inclination. Although comments diverging from the standard should be embarked on with care, a trial court must do more than figuratively throw up its hands and tell the jury it cannot help. It must consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice. [Citation.]” (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
“Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d at p. 97; People v. Smithee, supra, 20 Cal.4th at p. 985.) A court must consider as to each jury question whether further explanation is appropriate or whether it should merely repeat the instructions already given. (People v. Beardslee, supra, 53 Cal.3d at p. 97.)
We review the trial court’s decision not to offer additional instructions for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) A violation of section 1138 does not warrant reversal unless prejudice is shown. (People v. Beardslee, supra, 53 Cal.3d at p. 97.)
Jose contends the court failed to respond to the jury’s questions because it simply cited back to the pattern CALCRIM instructions. In sections VI and VII, ante, we set forth the applicable law as to the substantive gang offense of section 186.22, subdivision (a), and the gang enhancement of section 186.22, subdivision (b)(1). The court did not abuse its discretion when it responded to the jury’s questions because the original instructions contained proper statements of the law. (See, e.g., People v. Lamas, supra, 42 Cal.4th at p. 525, fn. 7; People v. Salcido (2007) 149 Cal.App.4th 356, 368-370.) Indeed, Jose has not argued that the CALCRIM instructions were incorrect statements of the relevant legal principles as to the STEP Act, aside from the Garcia issue, only that the court should have amplified those instructions in response to the jury’s numerous questions.
We note that none of the defense attorneys objected to the court’s responses, but objections are not required to preserve the section 1138 issue on appeal. (People v. Hill (1992) 3 Cal.App.4th 16, 24, overruled on other grounds by People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)
The jury asked about the definition of predicate acts and the court referred the jury back to CALCRIM No. 1400. Respondent concedes the jury instructions did not include any references to “predicate acts” but insists the court’s response was appropriate. While the court could have offered more clarity and stated that predicate acts were not defined within the instructions, any error is necessarily harmless since that issue was not presented to the jury, and we must presume the jurors followed the instructions. (People v. Yeoman, supra, 31 Cal.4th 93, 139.)
The jury’s other notes asked about the commission of crimes “in association” with a criminal street gang, how many people had to associate, and whether that could be in association with two people. The court again referred the jury to the instructions already given, which would have led the jury to the answer in CALCRIM No. 1400: “A criminal street gang is any ongoing organization, association or group of three or more persons, whether formal or informal, No. 1, that has a common name or common identifying sign or symbol; No. 2, that has [as] one or more of its primary activities the commission of” specific offenses.
The court did not abuse its discretion when it responded to the jury’s questions in this case.
IX.
THE COURT’S ORDER FOR PAYMENT OF THE FEE FOR PREPARATION OF PROBATION REPORT
All three appellants challenge the trial court’s order for them to each pay $900 as the probation report preparation fee pursuant to section 1203.1b. Jose and Lawrence contend the court’s order must be stricken because the court never specifically imposed a particular amount for the fee, the court failed to determine their ability to pay the fee, and they were never advised of their right to a hearing on the issue. Willie separately contends the court never actually imposed the fee in his case, even though such an order is contained in the minute order and abstract of judgment, and the order must be stricken. Respondent asserts the orders were properly imposed as to each appellant and they have waived their challenges to the imposition of the fee.
A. Background
As to Jose and Lawrence, the probation reports prepared in their cases each contained a recommendation for imposition of a $900 fee for preparation of the presentence report pursuant to section 1203.1b.
On July 19, 2006, the court conducted the sentencing hearing as to Jose. The parties addressed the probation report’s recommendations as to the determinate terms but Jose did not discuss the recommendation for the costs of preparing the probation report. As to Jose, the court denied probation, found multiple aggravating circumstances and no mitigating circumstances, and imposed the aggregate term of 42 years eight months. The court ordered a DNA sample, found Jose would be earning funds in prison, ordered a $10,000 restitution fine, and a stayed restitution fine. The court further ordered: “Also payable to probation through CDC is the probation report fee pursuant to [section] 1203.1(b).” Jose did not object to the imposition of the probation report fee.
The court then conducted Lawrence’s sentencing hearing, and again heard argument as to the appropriate sentence but Lawrence did not address the probation report preparation fee. Thereafter, the court denied probation, found multiple aggravating circumstances and one mitigating circumstance, and imposed the aggregate term of 42 years eight months. The court ordered a DNA sample, a $10,000 restitution fine, a stayed restitution fine, and the “probation report fee be payable through CDC.” Lawrence did not object to the imposition of the probation report fee.
As to Willie, the separate probation report prepared in his case recommended imposition of a $900 fee for preparation of the probation report pursuant to section 1203.1b. On July 20, 2006, the court conducted Willie’s sentencing hearing, the parties discussed the sentencing issues, and Willie did not address the recommendation for the probation report preparation fee. The court denied probation, found multiple aggravating circumstances, and imposed the aggregate term of 14 years. The following exchange occurred:
“[THE COURT]: I’ll impose, since funds will be earned while in state prison, $10,000 restitution fund fine, stay a second; $50 security fee. DNA, general order for restitution. [¶] Probation, credits.
“[THE PROBATION OFFICER]: 422 plus 63, Your Honor.
“THE COURT: Thank you.”
Both the minute order and abstract of judgment contain notations that the court ordered Willie to pay the $900 probation report preparation fee.
B. Analysis
Section 1203.1b provides that in any case in which a presentence report is prepared, the court “shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost” of preparing the report. (§ 1203.1b, subd. (a).) In addition, the probation officer “shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.” (Ibid.) If the defendant fails to waive the right to a court determination of his ability to pay, “the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs .…” (§ 1203.1b, subd. (b).)
“Section 1203.1b and other recoupment statutes reflect a strong legislative policy in favor of shifting the costs stemming from criminal acts back to the convicted defendant” and “‘“replenishing a county treasury from the pockets of those who have directly benefited from county expenditures.”’ [Citations.]” (People v. Phillips (1994) 25 Cal.App.4th 62, 69.) In an “age of expanding criminal dockets and the resulting heightened burden on public revenues[,] [r]ecoupment laws reflect legislative efforts to recover some of these added costs and conserve the public fisc. [Citations.]” (Id. at pp. 69-70.)
As to Jose and Lawrence, the trial court ordered them to pay the probation report preparation fee pursuant to section 1203.1b, as recommended in the probation report, which specified a fee of $900. The court did not specifically state the amount, but the entirety of the record clearly reflects that it was following the sentencing recommendation, and it cited to the appropriate statute when it made the order. The court did not make an express finding that Jose and Lawrence had the ability to pay this amount, and did not hold a hearing to determine their ability to pay. Jose and Lawrence, however, had notice that the probation department recommended imposition of the probation report preparation fee in the specific amount of $900. Nevertheless, they did not object to the recommendation, the imposition of the fee, ask for clarification of the court’s order, or request a court determination of their ability to pay or a hearing on the issue.
The failure of Jose and Lawrence to object to the imposition of the fee or the lack of a hearing forfeits their appellate challenges. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072, 1076 (Valtakis).) “[A] defendant’s failure to object at sentencing to noncompliance with the probation fee procedures of Penal Code section 1203.1b waives the claim on appeal, consistent with the general waiver rules of People v. Welch (1993) 5 Cal.4th 228 ... and People v. Scott (1994) 9 Cal.4th 331 ....” (Valtakis, supra, 105 Cal.App.4th at pp. 1068, fn. omitted.) In the alternative, Valtakis found that even if it reached the defendant’s claim, there was “no evident prejudice to justify a reversal of the fee or remand to hear the matter” and the potential error was one of state law, reviewable under People v. Watson (1956) 46 Cal.2d 818, 836, such that reversal was not required “unless we found a reasonable probability that, but for the error, the result would have been more favorable. [Citations.]” (Valtakis, supra, 105 Cal.App.4th at p. 1076.)
“… The record does not suggest that [the defendant] was unable to pay the $250 or that the result of a remand would be a better one. The record shows that he had $255 on him when arrested and, by the time of sentencing, was working part-time, was not addicted to drugs or otherwise incapacitated, was living with his mother (herself employed), and was given a three-month stay of his jail term in order to complete his current school semester. It appears highly unlikely that a remand to assess his financial circumstances at the time of the sentencing would show him to have been unable to pay the $250, even considering the $540 in other fees also imposed.” (Valtakis, supra, 105 Cal.App.4th at p. 1076.)
Valtakis further noted that under section 1203.1b, subdivision (f), a defendant had the right to petition at any time during the pendency of the judgment for a review of his ability to pay. (Valtakis, supra, 105 Cal.App.4th at p. 1076; see § 1203.1b, subd. (f).)
“[I]f his situation has changed since the fee was imposed, his remedy is not through this appeal but through the statute itself, which allows ‘additional hearings’ on his ability to pay anytime during the probationary period [citation] and modification of a judgment anytime upon showing a ‘change of circumstances’ [citation].” (Valtakis, supra, 105 Cal.App.4th at p. 1076.)
We agree in Valtakis and find that the failure of Jose and Lawrence to raise these objections at the sentencing hearing necessarily waives their challenges to the imposition of the section 1203.1b fee. Moreover, we need not decide whether Jose and Lawrence’s challenges to the sufficiency of the evidence supporting their ability to pay was similarly forfeited because it would be meritless even if properly before this court. Jose and Lawrence are both young men and the court found them capable of working while serving their lengthy prison terms. As in People v. Staley (1992) 10 Cal.App.4th 782, “[t]he trial court had an opportunity to observe defendant, and we presume the court discerned no such disabling characteristics. If there were any such latent impediments, defendant would be in the best position to know of and develop that information. Since he failed to object to imposition of the ... fee or to request a hearing on his ability to pay, we assume there are no such impediments.... [¶] ... [T]he record supports an implied determination of ability to pay.” (Id. at p. 786.)
As for Willie, he separately contends the reporter’s transcript of his sentencing hearing does not reflect the court’s oral imposition of any probation report preparation fee. Respondent asserts that the entirety of the record reflects the court’s oral pronouncement of the fee and Willie waived any challenge to the imposition of the fee.
As with Jose and Lawrence, Willie was clearly notified of the recommendation for the $900 probation report preparation fee and never addressed the issue at the sentencing hearing. At the sentencing hearings for Jose and Lawrence, the court clearly cited to the applicable statute and the probation report recommendation when it imposed the fee. In Willie’s case, however, the reporter’s transcript is silent as to any oral order from the court to even impose the probation report preparation fee, but the minute order and abstract of judgment contain notations that the fee was imposed.
Respondent suggests the court actually imposed the probation report preparation fee based on its cryptic remarks—“Probation, credits”—in the course of its imposition of other fines and fees, the recommendation in the probation report, and the notations in the minute order and abstract of judgment that the $900 fee was imposed. Respondent further contends that as in Valtakis, Willie waived his challenge to the court’s imposition of the probation report preparation fee.
“Conflicts between the reporter’s and clerk’s transcripts are generally presumed to be clerical in nature and are resolved in favor of the reporter’s transcript unless the particular circumstances dictate otherwise. [Citations.]” (In re Merrick V. (2004) 122 Cal.App.4th 235, 249.) We disagree with respondent’s overly broad interpretation of the court’s words as constituting an oral pronouncement of the section 1203.1b fee. As set forth ante, when the court said, “[p]robation, credits,” the probation officer immediately responded with Willie’s custody credits, such that the court’s statements cannot be construed as imposing the section 1203.1b fee. Given the court’s otherwise clear pronouncements at Willie’s sentencing hearing, we reconcile the record conflict in favor of the reporter’s transcript, and find the court did not impose the probation report preparation fee against Willie. (In re Merrick V., supra, 122 Cal.App.4th at p. 249.) Moreover, Valtakis’s waiver concept does not apply because the court never imposed the order and there was nothing for Willie to object to. Thus, the $900 probation report preparation fee must be stricken as to Willie.
X.
CORRECTION OF LAWRENCE’S ABSTRACT OF JUDGMENT
Lawrence contends and respondent concedes that the minute order and abstract of judgment must be corrected because of a clerical error in the sentence imposed in the unrelated case No. 1095865. In that case, Lawrence was charged with battery causing serious bodily injury with a gang enhancement, and the gang substantive offense. He pleaded no contest to the substantive gang offense, based on the agreement that he would be sentenced to eight months (one-third the midterm of two years), with the term to run concurrent to the sentence imposed in the instant robbery case.
At the sentencing hearing for case No. 1095865, the court orally imposed the midterm of eight months, to run concurrent to the sentence in the instant robbery case, but the minute order and abstract of judgment erroneously state that Lawrence was sentenced to the midterm of two years.
The abstract of judgment in case No. 1095865 must be corrected to reflect that Lawrence was sentenced to eight months, as one-third the midterm of two years, to run concurrent to the term imposed in the instant robbery case.
DISPOSITION
As to appellant Jose Alexander Torres, the judgment is affirmed (F050908).
As to appellant Willie Wildmer Torres, the probation report preparation fee is stricken. The trial court is directed to correct its minute order and prepare and serve as appropriate an amended abstract of judgment. In all other respects, the judgment is affirmed (F051017).
As to appellant Lawrence Mejia, the abstract of judgment in case No. 1095865 is corrected to reflect that appellant was sentenced to eight months to run concurrent to the sentence imposed in case No. 1092532. The trial court is directed to prepare and serve as appropriate an amended abstract of judgment reflecting such correction. In all other respects, the judgment is affirmed (F051236).
WE CONCUR: VARTABEDIAN, Acting P.J., WISEMAN, J.