Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF121921. W. Charles Morgan, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Sharon L. Rhodes, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant and appellant Robert Nashan Turner (Turner) of possessing cocaine base for sale (Health & Saf. Code, § 11351.5) and found true the allegation that he committed the crime for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). The trial court found true allegations that Turner had two prior serious felony convictions (Pen. Code, § 667, subds. (a), (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)) and had served a prior prison term (Pen. Code, § 667.5, subd. (b)). The trial court sentenced Turner to a prison term of 38 years to life as follows: 25 years to life for the third strike, plus two 5-year terms for the prior serious felony convictions, and a three-year term for the gang enhancement.
All further section references are to the Penal Code unless otherwise indicated.
In this appeal, Turner argues: (1) the trial court erred when it declined to bifurcate the trial of the gang enhancement from the trial on the drug possession charge; (2) the evidence was insufficient to support the true finding on the gang enhancement; (3) the gang expert improperly expressed an opinion as to the defendant’s guilt; (4) the trial court erred when it imposed the two 5-year enhancements for the serious felony convictions because they were not “brought and tried separately”; and (5) the sentence imposed is cruel and unusual punishment. As discussed below, we affirm the conviction but strike one of the two 5-year enhancements.
STATEMENT OF FACTS
On February 9, 2005, at approximately 1:30 p.m., Officer Gavin Lucero of the Riverside Police Department was patrolling the east side of Riverside in his black and white patrol car. As he drove past an alleyway behind a liquor store at the corner of University Avenue and Ottawa Avenue, an area known for narcotics sales and use and gang activity, he noticed Turner leaning against the block wall in the alley. Officer Lucero decided to ask Turner who he was and what he was doing in the alley. Officer Lucero stopped his car at the entrance to the alleyway, got out of the patrol car, and began to ask Tuner if he could talk to him. Turner made eye contact with Officer Lucero and ran away. Officer Lucero followed Turner on foot, identified himself, and ordered him to stop. Officer Lucero saw Turner reach into his waistband, remove a plastic bag containing a white substance, and attempt to throw the bag over a block wall into the parking lot of a motel. Instead, the bag landed on a grassy area near the sidewalk. As he passed within 5 or 10 feet of the bag, Officer Lucero noted its location and continued to pursue Turner on foot. Turner was arrested in an alley behind a residence, after a foot chase through several alleyways and residential yards.
Officer Lucero told one of the officers who had responded to his call for backup, Officer Wade Stern of the University of California, Riverside, Police Department, that he had seen Turner throw a bag of what appeared to be narcotics onto the grassy area near the sidewalk in front of the motel. Officer Stern went to the described location and retrieved one or two plastic bags. The bag or bags contained 18 individually wrapped packages of small, off-colored white rocks. Officer Lucero field tested three of the rocks, which tested positive for cocaine base. The total weight of the rocks was seven grams.
At trial, prosecution witnesses included expert police witnesses who testified that, in their respective opinions, Turner possessed the rock cocaine for the purpose of sale and that he did so for the benefit of or in association with the 1200 Blocc Crips, a criminal street gang. The sole witness for the defense was a police expert on gangs. This witness testified that the mere fact that a person was selling drugs in the alley behind that particular liquor store does not mean the person is a gang member, and that both the 1200 Blocc Crips and another gang sold rock cocaine from that location. However, on cross-examination, the defense witness testified that, in his opinion, Turner did commit the possession crime for the benefit of the 1200 Blocc Crips.
The jury returned with a guilty verdict on the possession charge and a true finding on the gang enhancement. After the trial court found true the prior prison term and strike allegations, it denied the defense request to strike one of the strikes and sentenced Turner to 38 years to life in prison. This appeal followed.
DISCUSSION
1. Request to Bifurcate Trial of Gang Enhancement
Before trial, Turner’s counsel filed a points and authorities issue brief in which he outlined five issues, including a request that the court “should bifurcate the gang issue from the drug case.” At the hearing on in limine motions, the trial court did not rule on this issue specifically and the defense did not ask it to. Turner argues that, nevertheless, this issue has been preserved for appellate challenge. This is because there would have been no point in renewing the request for bifurcation in light of the trial court’s ruling on the propriety and scope of the gang expert’s testimony. Specifically, the trial court ruled that the gang expert would be permitted to testify that Turner had prior affiliations with a known gang; that he admitted he was a member of the gang at the time of his arrest; that he had previously been convicted of a crime for the benefit of a criminal street gang; and that Turner’s possession of narcotics for sale in the current case was for the benefit of a criminal gang. The only limit the trial court placed on this testimony was that the gang expert could not reveal that Turner’s prior gang-related offense was for robbery.
We will assume for the purpose of this appeal that Turner preserved the issue for review. As discussed below, we conclude the trial court did not abuse its discretion when it declined to bifurcate the trial on the gang enhancement from the trial on the possession charge.
A trial court has discretion to bifurcate the determination of the truth of a criminal street gang enhancement from the trial on the underlying crime. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) However, when a criminal street gang enhancement is alleged there is less need for bifurcation than when, for example, a prior criminal conviction is alleged, because the former allegation is “attached to the charged offense and is, by definition, inextricably intertwined with that offense.” (Id. at p. 1048.) Evidence of a defendant’s gang affiliation “is often relevant to, and admissible regarding, the charged offense” (id. at p. 1049), for example, to show the defendant’s criminal motive or intent (ibid.). “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.” (Id. at pp. 1049-1050.)
Here, the gang expert was a gang unit detective with the Riverside Police Department. He testified that the 1200 Blocc Crips was a criminal street gang whose territory included the area where the liquor store, which was the scene of the possession crime, was located. The primary activities of this gang were possessing for sale and selling rock cocaine, and committing assaults, shootings and robberies. The expert concluded that Turner was a member of this gang because: Turner admitted it during the investigation of this crime, had admitted it to law enforcement on prior occasions, had previously been convicted of committing a crime in association with the gang, had several of that gang’s tattoos on his body, wore clothing the color of the gang, and had a gang moniker. The expert also testified that gangs often commit crimes such as drug sales in a particular location in order to intimidate members of the local community and to prevent them from cooperating with police investigations.
Finally, the gang expert testified that, in his opinion, Turner possessed the cocaine base for sale for the benefit of the 1200 Blocc Crips because: the crime took place in the gang’s territory, in a specific area known for cocaine sales by that gang, the crime served to intimidate the community, the money earned for sales would benefit the gang by allowing them to purchase weapons, as well as maintaining Turner as a gang member by allowing him to support himself through this activity, and would help perpetuate the gang’s drug sales enterprise in that particular area.
This testimony was relevant to show Turner’s intent in possessing the cocaine—to sell it for the benefit of the gang, rather than just to possess it for personal use. The testimony was relevant to show Turner’s motive in possessing the cocaine—again, to benefit the gang and to maintain himself as a viable member of the gang. The testimony was also relevant to show that Turner knew the substance he possessed was in fact cocaine base, rather than some other substance, because the sale of cocaine in that particular area was a primary activity of the gang.
In addition, the testimony was relevant to rebut anticipated defenses, such as the cocaine did not belong to Turner, or that he did not possess it for sale. The testimony helped the jury understand why Turner would possess multiple small packages of rock cocaine in that alley behind that liquor store—again, testimony about his gang membership went to his motive for possessing the rock cocaine for sale at that particular place.
Because the testimony on Turner’s gang membership was relevant to show intent, motive, and lack of mistake regarding the possession for sale charge, we conclude that the trial court did not abuse its discretion when it declined to bifurcate the trial on the gang enhancement from the trial on the possession charge.
2. Sufficiency of the Evidence on the Gang Enhancement
Turner argues there is insufficient evidence to support the jury’s “true” finding on the gang enhancement allegation because there was no evidence that he had the specific intent to benefit a criminal street gang at the time of the offense.
“When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt. [Citations.] In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.] Moreover, because it is the jury, not the reviewing court, that must be convinced of the defendant’s guilt beyond a reasonable doubt, we are bound to sustain a conviction that is supported by only circumstantial evidence, even if that evidence is also reasonably susceptible of an interpretation that suggests innocence. [Citation.]” (People v. Little (2004) 115 Cal.App.4th 766, 771.)
To support a true finding on the gang enhancement, the evidence must show that Turner committed the crime of possession of cocaine base for sale for the benefit of, at the direction of, or in association with a criminal street gang, here the 1200 Blocc Crips, and that he had the specific intent to further, promote or assist in criminal conduct by the gang. (§ 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 615-616 (Gardeley).)
We conclude that the evidence is sufficient to support a conclusion that Turner acted with the specific intent to benefit the 1200 Blocc Crips when he possessed the cocaine base for sale, rather than solely for personal gain. First, as described above, Turner admitted to being a member of this gang, had his body tattooed with this gang’s signs, and wore the color associated with this gang. Second, Turner lived in Perris, not east Riverside, when he committed the crime, but chose to travel to the alley behind the particular liquor store at the corner of University Avenue and Iowa Avenue where the 1200 Blocc Crips was known to sell cocaine as one of its major enterprises. Third, the testimony of the gang expert supports the inference that Turner committed this particular crime in this particular place with the specific intent to instill fear in the community and intimidate rival gangs, to earn money to enable him to be a productive member of the gang and to purchase weapons for the gang, and to further the gang’s presence in that area as a drug-selling enterprise.
Even Turner’s own witness, a gang expert who was also a detective with the Riverside Police Department’s gang unit, concluded that Turner possessed the drugs for sale to benefit the 1200 Blocc Crips. He based this opinion on the evidence that cocaine sales at that location would benefit the gang by making money for the gang and for Turner, and by intimidating the community and perpetuating cocaine sales in that area as a continuing enterprise of the gang.
Thus, we have no trouble concluding that sufficient evidence supports the jury’s true finding on the gang enhancement allegation.
3. Gang Expert Opinion
Turner argues that “it was error to permit the [prosecution’s gang] expert to testify on the ultimate issue of [Turner’s] guilt and on the ultimate issue of the truth of the gang enhancement allegation.”
First, we note that the gang expert did not testify that in his opinion Turner was guilty of possessing cocaine base for sale. Rather, he answered “[y]es” to this question from the prosecution: “[I]n your expert opinion, on February 9th of 2005 when the defendant possessed the cocaine base in this case for the purpose of selling it, did—do you believe—is it your opinion that it was done for the benefit of or in association with the 1200 Blocc Crips?” The gang expert at no time opined that Turner was guilty of possessing cocaine base for sale. Rather, his opinion was based on the assumption, implicit in the gang allegation itself, that if Turner possessed the cocaine base for sale, he did it for the benefit of the gang.
Second, case law makes it clear that an expert is permitted to testify as to whether a crime was committed to benefit or promote a criminal street gang. (Gardeley, supra, 14 Cal.4th at pp. 617-620 [the gang expert testified, in response to a hypothetical question based on the facts of the case, that the crime was gang-related activity]; People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931 [the gang expert properly testified the crime was gang related]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224 [in an opinion of this court, we noted that the gang expert testified that the crime benefited the gang]; In re Ramon T. (1997) 57 Cal.App.4th 201, 208 [the gang expert testified that the crimes were committed to benefit the gang]; People v. Akins (1997) 56 Cal.App.4th 331, 336 [in an opinion of this court, we noted that the gang expert testified that the crimes were committed for the benefit of or in association with a gang]; and People v. Olguin (1994) 31 Cal.App.4th 1355, 1367 [gang expert testified that the crimes were for the benefit of the gang].) That is just what the gang expert did here in this case.
Neither People v. Torres (1995) 33 Cal.App.4th 37, cited by Turner, nor Gardeley, supra, 14 Cal.4th 605, cited by the People, holds that expert opinion as to whether a crime was committed to benefit or promote a street gang must be given only in response to a hypothetical. Neither did we find anything in statute or case law prohibiting a gang expert from basing such an opinion on the particular facts and defendant in the case being tried.
One of the holdings in Gardeley is that an expert can give opinion testimony based on facts given in a hypothetical question as long as the hypothetical is “rooted in facts shown by the evidence.” (Gardeley, supra, 14 Cal.4th at p.618.) This means that the prosecution may use a hypothetical to draw out an expert opinion, not that it must use a hypothetical.
Finally, the gang expert here did not give his opinion as to the ultimate issue to be decided by the jury—whether the gang enhancements were true. An expert opinion that an element of a gang enhancement, specifically whether a defendant is acting for the benefit of a street gang, is present is not tantamount to an opinion that an enhancement is true, because other elements to the allegation must also be proved. (People v. Valdez (1997) 58 Cal.App.4th 494, 508-509.) Here, as in Valdez, the gang expert concluded that the possession for sale was committed for the benefit of a criminal street gang, which is only one element of the enhancement.
4. Prior Serious Felony Enhancements
Turner contends the trial court erred by imposing two serious felony enhancements under section 667, subdivision (a). The People concede the error. Section 667, subdivision (a), provides: “[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” Here, the two prior serious felony convictions stem from a single criminal proceeding in which Turner pled guilty to two counts of robbery. Thus, the charges were not “brought and tried separately,” and one of the two 5-year sentence enhancements must be stricken.
5. Cruel and Unusual Punishment
Prior to sentencing, Turner filed a motion to strike a prior conviction in the interests of justice. The trial court denied the motion and imposed the three strikes sentence of 25 years to life, plus enhancements. Turner argues that the sentence violates both the state and constitutional prohibitions against cruel and unusual punishment.
A sentence may constitute cruel or unusual punishment under the state Constitution if “‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) In analyzing a disproportionality claim under the state Constitution, we examine (1) “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (In re Lynch, supra, at p. 425), (2) the sentence compared to the sentences for more serious offenses in California (id. at p. 426), and (3) the sentence compared to sentences for the same offense in other states (id. at p. 427; see also People v. Dillon (1983) 34 Cal.3d 441, 479).
“This three-pronged analysis provides guidelines for determining whether a punishment is cruel or unusual. The importance of each prong depends on the facts of each case. An examination of the first prong alone can result in a finding of cruel or unusual punishment. [Citations.] Regarding the other prongs, defendant bears the burden of proof. [ Citation.]” (People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.)
The California Supreme Court has also held that, provided a punishment is proportionate to the defendant’s individual culpability, there is no requirement it be proportionate to the punishments imposed in other similar cases. (People v. Webb (1993) 6 Cal.4th 494, 536; People v. Mincey (1992) 2 Cal.4th 408, 476; People v. Miller (1990) 50 Cal.3d 954, 1010.) In other words, a determination of whether a punishment violates the state constitutional prohibition against cruel and unusual punishment may be based solely on the offense and the offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; see, e.g., People v. Dillon, supra, 34 Cal.3d at pp. 479, 482-488; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)
Turner asserts that his sentence is disproportionate because he does not have an extensive criminal history, there was not a strong nexus between the current offense and any gang activity, and the offense did not involve any violence or threat of violence. Turner’s argument discounts the precise circumstance that triggers punishment under the three strikes sentencing scheme: his recidivism. As the People point out, Turner, as a juvenile, had a misdemeanor adjudication for receiving stolen property and a felony adjudication for possession of cocaine base for sale, and later was found in violation of the terms of his probation for the latter offense. As an adult, while on probation for misdemeanor convictions for battery and corporal injury to a spouse or cohabitant, Turner committed armed robbery with a fellow gang member. He was convicted of two counts of robbery, was found to have personally used a firearm in committing both counts, and was found to have committed the robberies for the benefit of the 1200 Blocc Crips. Further, less than one year after being released on parole for the robberies, Turner committed the current offense, which the jury found to be gang related. Turner portrays the possession for sale offense as not involving even the threat of violence. We disagree, based on the testimony of the gang expert that Turner’s visible presence and possession of cocaine base for sale in the alley behind that particular liquor store, dressed in gang attire and sporting gang tattoos, was an implicit means of intimidating the community and even members of other gangs. Given his criminal history and the current crime, we cannot say Turner’s sentence of 25 years to life was disproportionate to the offense or the offender. Therefore, we need not compare that sentence to sentences imposed in California for more serious offenses or in other jurisdictions for the same offense.
Turner also contends that his sentence violates the federal constitutional prohibition against cruel and unusual punishment. We again disagree. A majority of the United States Supreme Court held in Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179, 155 L.Ed.2d 108] (plur. opn. of O’Connor, J.) (Ewing) that the federal Constitution contains a narrow proportionality principle that prohibits sentences that are grossly disproportionate. The court held that the Eighth Amendment did not prohibit a sentence under California’s three strikes law of 25 years to life for a defendant who shoplifted golf clubs worth about $1,200, because seven years earlier the defendant had been convicted of three residential burglaries and one first degree robbery. (Ewing, supra, at pp. 17-18, 29-30.)
Comparing defendant’s current crime and his criminal history with those of the defendant in Ewing, we cannot say that defendant’s sentence is grossly disproportionate to his criminal culpability so as to constitute cruel and unusual punishment under the United States Constitution.
The opinion further stated that “‘[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.’ [Citation.]” (Ewing, supra, 538 U.S. at p. 21 (plur. opn. of O’Connor, J.); see also Lockyer v. Andrade (2003) 538 U.S. 63, 73 [123 S.Ct. 1166, 155 L.Ed.2d 144] [gross disproportionality principle is “applicable only in the ‘exceedingly rare’ and ‘extreme’ case”].) As an example of a successful challenge, the court stated that the proportionality principle would come into play “‘if a legislature made overtime parking a felony punishable by life imprisonment [.]’” (Ewing, supra, at p. 21.)
Two other justices in Ewing concurred in the result on the basis that the Eighth Amendment does not contain any proportionality guarantee at all. (Ewing, supra, 538 U.S. at pp. 31 (conc. opn. of Scalia, J.), 32 (conc. opn. of Thomas, J.).)
Ewing and Lockyer v. Andrade are the Supreme Court’s most recent pronouncements on the application of the cruel and unusual punishment clause to state court sentences. Neither decision required that, if the reviewing court concludes a sentence is not grossly disproportionate to the crime, it nevertheless must compare the sentence to the sentences for other crimes in the same jurisdiction, or for the same crime in other jurisdictions.
Therefore, it appears that under the Supreme Court’s most current interpretation, all that is required under the Eighth Amendment is the equivalent of the analysis that makes up the first part of the Lynch test. (But see People v. Carmony, supra, 127 Cal.App.4th at p. 1077 [applying three-part analysis under Eighth Amendment].) As we have already found no cruel or unusual punishment under that analysis, we hold, for the reasons previously stated, that Turner’s sentence also did not violate the Eighth Amendment.
DISPOSITION
The conviction is affirmed. We order one of the two 5-year serious felony enhancements imposed under section 667, subdivision (a), to be stricken. The clerk of the trial court is directed to prepare an amended abstract of judgment indicating the change and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: McKINSTER, J., KING, J.