Opinion
APPEAL from a judgment of the Superior Court of Fresno County. Wayne Ellison, Judge. Super. Ct. No. F05901616-3
David R. Mugridge for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, J.
INTRODUCTION
Appellant Leron “Get Low” Williams and codefendant Shannon S. Senegal were convicted of the first degree murder of Michael McGhee, and attempted murder of his brother, Anthony Beard, with enhancements for committing the offenses for the benefit of a criminal street gang and personally discharging a firearm causing great bodily injury or death. On appeal, Williams challenges the sufficiency of the evidence for his convictions and the gang enhancements, and also raises various constitutional challenges to the gang enhancements. We will affirm.
Senegal also filed a notice of appeal (F050769) and, in a separate opinion, we will affirm his convictions.
STATEMENT OF THE CASE
On June 2, 2005, an information was filed in the Superior Court of Fresno County charging appellant Leron Williams and codefendant Shannon Shamar Senegal with count I, murder of Michael Pierre McGhee (Pen. Code, § 187, subd. (a)), and count II, attempted murder of Anthony Beard (§§ 187/664). As to both counts, it was alleged Williams and Senegal personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Williams and Senegal pleaded not guilty and denied the allegations.
All further statutory citations are to the Penal Code unless otherwise indicated.
On January 24, 2006, Williams’s and Senegal’s joint jury trial began. On February 1, 2006, the court granted the prosecution’s motion to amend the information to conform to proof, and modified the firearm enhancement as to both Williams and Senegal, to reflect a principal discharged a firearm and caused great bodily injury or death in the commission of counts I and II, pursuant to section 12022.53, subdivision (e). The court denied Williams’s and Senegal’s motions for acquittal.
On February 3, 2006, Williams and Senegal were found guilty of count I, first degree murder, and count II, attempted murder, and both enhancements were found true.
On June 2, 2006, Williams filed a motion for new trial, which was joined by Senegal. On June 5, 2006, the prosecution filed opposition. On June 8, 2006, Williams filed a reply to the opposition.
On June 16, 2006, the court denied Williams’s and Senegal’s motion for new trial. As to both Williams and Senegal, the court denied probation, imposed aggregate terms of 50 to life: as to count I, first degree murder, the indeterminate term of 25 years to life, with a consecutive indeterminate term of 25 years to life for the firearm enhancement; as to count II, attempted murder, 25 years to life, plus 25 years to life for the firearm enhancement, with the terms for count II to run concurrent to the terms imposed for count I.
Although not raised as a separate issue, Williams repeatedly complains throughout his brief that the trial court’s statements at the sentencing hearing were confusing and not clear as to the imposition of the enhancements. Our review of the sentencing hearing refutes these complaints. The court imposed identical terms for both Williams and Senegal. As to count I, first degree murder, the court imposed the indeterminate term of 25 years to life, plus a consecutive indeterminate term of 25 years to life for the enhancement for “the use of a firearm in the commission of that crime for gang purposes.” As to count II, attempted first degree murder, the court imposed the indeterminate term of 25 years to life, with another term of 25 years to life for the firearm enhancement, with the terms imposed for count II to run consecutive to that imposed for count I, for an aggregate term of 50 years to life. There was no confusion as to the imposition of sentence.
On August 11, 2006, Williams filed a timely notice of appeal.
FACTS
On the afternoon of October 9, 2004, family and friends gathered for a barbecue in the front yard of Johnnie Mae Carter’s house on South Bardell in Fresno. They were celebrating the recent release from prison of Ms. Carter’s two sons, Michael McGhee and Anthony Beard. Ms. Carter’s daughter, Chermane Nutt, lived at the house and was present for the party, along with numerous cousins, nieces, and nephews.
Beard was associated with a prison gang, known as “Kumi/415,” and family members were associated with the local “U-Boys” gang. The Weller Street Boys was a rival gang to the U-Boys, with their turf located just one street away from South Bardell.
Just as Beard arrived at his mother’s house, Trinell “Petee” Beasley drove up in his black Mustang and stopped in front of Ms. Carter’s house. Petee remained in his car but greeted Beard and said, “oh, look who they let out. They let you out.” Petee and Beard briefly talked, and then Petee drove away. At about the same time, Ms. Nutt left the house and went to her son’s high school to deliver his football cleats, and then returned to the house and rejoined the barbecue.
Beard and McGhee visited with the other guests in their mother’s front yard. About 10 to 15 minutes after Petee left, Beard’s cousin asked if he knew some guys on the street. Beard had been leaning against a car, with his back to the street. He turned around and saw three men standing south of the house, on the corner of South Bardell and Belgravia. The men were wearing sweatshirts with the hoods on their heads, and they were walking toward the house at a regular pace. Beard turned away and resumed visiting with his family.
Less than one minute later, the three men arrived at Ms. Carter’s front gate. Two men were wearing black sweatshirts, and one man was wearing a red sweatshirt. The men pulled guns and fired at the group in the front yard, and Beard’s cousin shouted for everyone to get down. Beard was still leaning against the car, with his side to the front gate. He turned around and saw the three men firing their weapons. They were standing side-by-side and did not say anything as they fired. Beard fell to the ground and tried to take cover. Michael McGhee, Beard’s brother, grabbed his neck and also fell to the ground. The three gunmen fired “lot[s] of shots” and fled on foot.
Beard’s mother and sister were inside the house when the shooting occurred. They thought they heard firecrackers and ran outside. The young nieces and nephews were running and screaming. Ms. Carter ran to Beard’s side, and Beard said he was hit and he was worried about his brother, McGhee.
Beard suffered gunshot wounds in his right side, left thigh, and the right shin below the knee. Beard was taken to University Medical Center and treated for his wounds. Beard’s brother, Michael McGhee, suffered multiple gunshot wounds to his chest and neck, and died that day from his wounds.
The police found numerous shell casings at the scene of the shooting, consisting of nine millimeter and .45-caliber ammunition, indicating at least two different weapons were used. Based on the location of the casings, the shots were fired either from the sidewalk or the street, toward the house. The police served search warrants on several individuals associated with the Weller Gang and recovered numerous weapons, but the guns used in the shooting were never located.
The Initial Investigation
Fresno Police Detective Richard Byrd arrived at Ms. Carter’s house just after the shooting and started the investigation by interviewing Ms. Carter. Ms. Carter stated that after the shooting, Beard told her that Shannon Senegal was one of the gunmen.
Later on the night of the shooting, Detective Byrd interviewed Beard in the emergency room at University Medical Center. Beard was on a gurney and being treated for his wounds. He was a little groggy but able to respond to Byrd’s questions. Beard told Byrd that Senegal was the gunman in the red sweatshirt, he did not know who the other two gunmen were, but he thought he could probably identify them from photographs. Beard also said he could not tell who actually fired the guns, but he was adamant that Senegal was there.
On October 10, 2004, the day after the shooting, Detective Byrd again interviewed Beard at the hospital. Beard was more alert than the previous day. He said he saw Senegal pull a gun, but he did not know who the other two gunmen were.
On October 28, 2004, Detective Byrd interviewed Beard at the police department. Beard admitted being a drug user but denied membership or association with any gang. Beard admitted members of his family were members of the U-Boy gang. Byrd showed Beard seven different photographic lineups. Beard identified Senegal as a gunman, and said he looked directly at Senegal. Byrd testified that Beard never wavered in his identification of Senegal.
Detective Byrd had received information that one of the Thomas twins, either Adavier or Atavier, might have been one of the gunmen. Byrd determined that Adavier was in custody on the day of the shooting, so he included Atavier’s photograph in the lineups. Beard selected Atavier’s photograph as a Weller gang member. As their conversation continued, Beard said he heard one of the Thomas twins was present at the shooting, but he could not distinguish between the twins and said he never actually saw one of the twins at the scene.
Atavier Thomas, a member of the Weller Boys, was subsequently murdered in 2005.
Detective Byrd continued to show Beard the photographic lineups. Beard identified Leron “Get Low” Williams as being with Senegal during the shooting and said he was “positive” Williams was there, Williams was one of them “for sure,” but he was not sure if Williams had a gun. This was the first time that Beard said Williams was involved. Beard said he knew Williams because he used to buy drugs from him. Detective Byrd asked why Beard failed to previously mention Williams. Beard replied that he heard rumors on the street that “Get Low” was involved, and after hearing these rumors “it all registered to me” that Williams was there. Beard also told Detective Byrd that he did not want to testify because he was afraid of what might happen to him and his family. “And he kind of put it in the terms of, you know, the gang thing.”
Detective Byrd testified Beard recognized some of the other individuals in the photographic lineups as being associated with the Weller Street area, but Beard said those particular individuals were not involved in the shooting.
Ms. Nutt’s First Statement
On either November 2, 2004 or December 2, 2004, Detective Byrd conducted a tape-recorded interview with the victims’ sister, Chermane Nutt. Ms. Nutt stated that prior to the shooting, “Petee” arrived at Ms. Carter’s house in his black Ford Mustang and briefly spoke to Beard. Ms. Nutt stated Petee drove away, and she left the barbecue and took her son’s cleats to the high school. As she returned to her mother’s house, she noticed Petee’s black car was stopped next to a small brown car on a nearby street, and the occupants of the two vehicles were talking to each other. Ms. Nutt stated there were four people in the small brown car: the driver was Leron “Get Low” Williams; the passengers were Shannon Senegal; one of the Thomas twins (either Adavier or Atavier), but she could not tell them apart; and an unknown male.
Ms. Nutt stated she returned to her mother’s house, and the shots were fired two or three minutes later. Ms. Nutt said she ran out of the house but did not see the gunmen and only saw “arms and legs running away.” Ms. Nutt tried to help Beard, and Beard said that Senegal was one of the gunmen.
Ms. Nutt’s Subsequent Statement
As the investigation continued, Detective Byrd was informed that Ms. Nutt might have held back information about the shooting in her previous interview. During the preliminary hearing, Detective Byrd observed people arguing and fighting by the elevators and in the hallway outside the courtroom. Ms. Nutt attended the preliminary hearing.
On June 2, 2005, after the preliminary hearing, Detective Byrd interviewed Ms. Nutt, and she disclosed additional details. Detective Byrd testified that Ms. Nutt again stated she left her mother’s house and went to her son’s high school to drop off his cleats. As she returned to her mother’s house, she saw “Petee’s” car stopped next to a brown car, and the occupants of the brown car were Senegal, “Get Low” Williams, one of the Thomas twins, and an unknown person. In this interview, however, Ms. Nutt stated that Beard arrived at the barbecue after she returned home from her son’s high school.
In addition, Ms. Nutt stated that after she returned to her mother’s house, she was standing on the front porch and saw four or five individuals at the corner of Florence and South Bardell. They were walking on South Bardell toward the house and the next street, Belgravia. She recognized them as the same individuals who had been in the small brown car and talking to Petee: Senegal, “Get Low,” and one of the Thomas twins. Ms. Nutt stated that she had seen these men in the neighborhood on prior occasions so their presence was not unusual, and she went inside the house. Within 30 seconds, she heard the sound of firecrackers, which were the gunshots.
Detective Byrd testified Ms. Nutt’s husband was present during this interview. Detective Byrd asked Ms. Nutt why she previously failed to disclose this information. Ms. Nutt replied that she did not want to get involved or testify in the case, and thought that Beard could be the person who talked to the police. Ms. Nutt stated she did not want to get involved “because of being threatened. She was already being threatened,” and she was afraid for her family. Ms. Nutt’s husband asked whether they could enter the witness protection program.
As a result of Ms. Nutt’s fears and her husband’s request, Detective Byrd arranged for her to enter the district attorney’s witness relocation program. It was stipulated that the witness relocation program paid the participant’s relocation expenses, including the first three months of rent.
Williams’s Postarrest Statement
On March 9, 2005, Williams was arrested at his house; Monique Thomas was present when he was arrested. Williams did not resist and no weapons were found in his house. Detective Byrd interviewed Williams that day, after advising and obtaining a waiver of the rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Williams denied current gang membership, and said he had been part of the Six Deuce Diamonds, a Crips gang, when he was in high school, about 10 years ago. The Six Deuce group was associated with the 107 Hoovers. Williams stated that some of his associates from those gangs were now members of rival groups, including the U-Boys. Williams insisted that former Bloods and Crips were able to hang out together without any problems, and the gangs were now associated with the streets.
Williams said he hung around Weller Street because that is where “I get my haircut.” He did not believe his family claimed any type of gang. Williams said Weller was “a cool street” because girls were there, only kids hung around there, these people did not wear gang colors, and it was not gang turf. He was not aware of any gang problems on Weller Street. Williams said he did not know why people called him “Get Low,” and it might have been from dancing at a club. Williams had numerous tattoos with the names of his girlfriends.
Williams said Senegal and Petee were related to him, and he knew the Thomas twins. Williams said he only knew Beard and McGhee because he heard about the shooting, but he did not otherwise know them. Williams heard from a “smoker dude” that “some Asians” were responsible for the shooting because they had conflicts with “some black people.” Williams said he had a “brownish gold” car, but he was not with Senegal and one of the Thomas twins on the day of the shooting, and he did not recall pulling up to Petee’s black car and talking to him. Williams could have been on Weller Street that day for a haircut.
Detective Byrd advised Williams that witnesses said he was with Senegal, and they walked up to the South Bardell house and started shooting. Williams said they had the wrong guy. Byrd asked why people would identify Williams if he was not there. Williams again said he had nothing to do with the shooting, but “I was probably in the area. I know that’s grooming night.” Williams was not sure if he heard the gunshots because “I hear shots around there all the time. Damn near every time I go get a haircut you hear some shots around here.”
“[Q] You would have heard these [shots] because these people put you standing right in the group of people that were shooting.
“[A] Uh, nah, it couldn’t have been me.”
Williams again insisted he was not involved with any gangs or the shooting.
Trial Testimony
At trial, Beard admitted he suffered numerous prior convictions, including burglary in 1990, walking away from custody in 1991, misdemeanor giving a false name to an officer in 1992, and second degree burglary, stealing a car, and spousal abuse in 1999. Beard admitted he used cocaine, but testified he did not drink or use drugs on the day of the shooting. Beard admitted being part of the Kumi/415 prison gang, but denied being a member of the U-Boy gang.
Beard testified Williams, Senegal, and another person walked up to the house. All three men pulled guns and started shooting. Beard testified he was certain of his identification of Williams and Senegal. Beard testified he turned and looked at the three men for about five seconds, when they were at the front gate, before the shooting started. Beard tried to hide behind a car but he was wounded. Beard testified that as he was being lifted into the ambulance, his mother and sister asked if he saw who did it, and Beard replied it was Senegal.
On cross-examination, Beard testified he never talked to his mother at the house after he was shot, and they talked about the incident the day after the shooting.
Beard testified he knew Williams as a drug dealer on Weller Street, because Beard purchased drugs from him on numerous occasions. Beard had known Senegal for many years, and knew Senegal was a member of the Weller gang. Beard testified there was a third gunmen, but he did not know that person.
Beard testified that he spoke to Detective Byrd at the hospital, just a few hours after the shooting, and he told Byrd that Senegal was involved. He spoke to Byrd at the hospital the day after the shooting, and again said that Senegal was involved. Beard spoke to Byrd on a third occasion, at the police department, but denied that he made identifications simply based on hearing rumors from family and friends. During this interview, Beard told Byrd that he was able to put a name to one of the other people at his house, and it was “Get Low” Williams. Beard testified it took him a while to figure out the names because the shooting happened so fast.
On cross-examination, however, Beard admitted his family told him that “Get Low” was involved.
“Q Up until the point when you heard from your family members that ‘Get Low’ was involved, the fact that he was involved never crossed your mind; is that correct?
“A Not at the time, no.”
Beard also admitted he purchased drugs from Williams on numerous occasions and knew what he looked like, but he did not identify him to Detective Byrd until his third interview, after his family talked to him about the case.
Beard testified he selected one of the Thomas twins from the photographic lineup, advised Detective Byrd that family members told him that one of the twins might have been involved, and also told Byrd that he now remembered that one of the twins was there. Beard admitted he already knew the twins pretty well before the shooting, because they spent time in the neighborhood and he saw them on Weller Street. Beard also admitted that he never mentioned the twins during his first and second interviews with Detective Byrd, and that he was not certain they were there “other than what I was told.”
Ms. Nutt testified that Petee drove up to her mother’s house, briefly spoke to Beard, and drove away. Ms. Nutt also saw Petee talking to some people in a car, but she could not identify the occupants and did not know whether Williams and Senegal were in the car. When Ms. Nutt returned to the house, she was standing in the front yard for a while, and saw four or more people walking toward the house. Ms. Nutt testified she could not “visualize” who was walking toward the house. Ms. Nutt went inside and was talking to her mother when she heard the gunshots. She ran outside to protect her young child, and saw her brothers on the ground. Ms. Nutt testified she saw the backs of four people as they ran away and never saw their faces. Ms. Nutt testified that before Beard was placed in an ambulance, he said he knew who it was but did not disclose a name.
Ms. Nutt testified that she recalled being interviewed by Detective Byrd and said Williams could have been one of the people talking to Petee, and she could have said that one of the Thomas twins were there. Ms. Nutt could not recall her statements to Detective Byrd during her two interviews, but testified her memory was more accurate during the interviews than at trial. Ms. Nutt explained her second statement was more accurate than her first statement because she “didn’t want to be involved in it” when she was interviewed the first time. Ms. Nutt testified she was aware of gang activity in the neighborhood between the U-Boys and the Weller gang. She was also aware of the possible consequences against someone who testified in a murder trial against Weller gang members, that “they’ll take off whoever that goes and testify,” but that did not matter to her.
Testimony of Gang Expert
Detective Ron Flowers testified as the prosecution’s gang expert. He had been a member of the Fresno Police Department for seven years. He previously served as a patrol officer in southwest Fresno, where gang activity was prevalent. He had been assigned to the Multi-Agency Gang Enforcement Consortium (MAGEC) for the past three years, and dedicated 60 to 70 percent of his time to investigating gang activity in southwest Fresno, particularly African-American gangs. He had approximately 500 contacts with gang members as a patrol officer, and another 150 to 200 contacts as a detective with MAGEC.
Detective Flowers testified his work with MAGEC included validation of gang members, and explained that in California, a person “has to meet certain criteria set forth by the state.” The state uses 10 validation criteria elements, and Fresno County uses three factors to validate a person as an active gang member, and two factors to validate an associate. These validation factors include whether a person is associating with other gang members or associates, arrested with gang members, has gang tattoos, wears gang clothing, is depicted in photographs with other gang members or displaying gang hand signs, or identified through graffiti or gang monikers. Validation may also occur through a reliable source, such as the Department of Corrections, the Fresno County Jail, or the probation department.
Flowers testified the African-American gangs in southwest Fresno were primarily territorial, with their turf and names based on streets and neighborhoods. There were two large rival gang alliances in southwest Fresno: TWAMP and MUG. Each organization consisted of numerous street gangs which had formed alliances for various reasons, including increasing their strength, thwarting law enforcement, and increasing opportunities for narcotics sales and distribution.
Flowers testified that nearly every street or neighborhood gang in southwest Fresno was aligned with either TWAMP or MUG. These subset gangs were named for their streets. A gang member aligned with MUG would not be spending a lot of time in an area controlled by a gang aligned with TWAMP.
Flowers testified that TWAMP consisted of the following street gangs: Villa Posse, Lee Street, Weller Boys, Lotus Street, Grove Street Posse, Strother Boys, Villain Blood, Young Black Soldiers, and Four Trey (which is primarily a prison gang). Villa Posse was a large group and a widespread gang in Fresno. Villa Posse was considered the parent gang of Weller Boys, Fig Boys, Lotus, and Grove Street Posse. Villa Posse controlled various areas through the smaller hood or street gangs.
The Weller Boys were in close alliance with Villa Posse, and recognized as a “street or a hood” of the much larger Villa Posse parent gang. The Weller Boys consisted of 23 members, the turf was the 2300 block of South Weller, and a member may identify himself as a Weller Fig or Fig Boy. The Fig Boys were also synonymous with the Weller Boys. Martin Luther King Avenue used to be known as Fig Street, and one street gang was still known as the Fig Boys.
“Q A Fig Boy ... if that person was living or spending the bulk of their time currently in Weller Street—2300 block of Weller Street, would that person be considered Weller Boy just based on the location and their association with Fig Boy in the past?
“A Again, it’s synonymous with what you had during that time. You had childhood friends on two opposite streets on the same block in the same area who grew up together, who identified themselves in a certain fashion, but pretty much did everything together consistently. In some cases you’ll have a Weller Boy identify himself as Weller Fig or Fig Boy and vice versa.”
Flowers explained that MUG was the rival gang alliance to TWAMP. MUG was an acronym for the individual street gangs called Modoc, U-Boys, and Garrett Street. Modoc was first recognized in 1989, it was a “stand alone gang,” and evolved from Fink White Deuce. The U-Boys stood for “U for Eugenia” Street. The Dog Pound was a “stand alone” gang named for the area itself, and had recently joined with MUG. Another “stand alone” gang in the area was the Muhammads, also known as Walnut Street Possee or Walnut Street Crips. The Sampsons had converged with MUG, but had slowly been displaced. The gangs which aligned with MUG did so for strength, the ability to gain weapons, and narcotics transactions.
The primary activities of both the U-Boys and the Weller Boys were narcotics sales, along with guns and other violent activities. “The sales of narcotics and guns and violence go hand in hand.” The neighborhood areas were so small that it was common for members of the rival groups “to cross each other’s paths while in transit, to be attacked while they are out distributing or selling their narcotics.” A member of the U-Boys would not be allowed to sell drugs on the turf of the Weller Boys, and some type of violent assault would occur to halt such drugs sales. Flowers testified it was “[s]lightly possible” for an individual to sell drugs out of a relative’s house on the Weller Boys’ turf, without being part of the Weller Boys, but the gang would probably become suspicious because of the traffic in and out of the house, and that dealer would be forced to leave the area through violence.
Detective Flowers testified that in the six months prior to October 2004, the rivalry between TWAMP and MUG was exacerbated by “at least two significant homicides,” of Hammod Demmery, a validated member of Modoc, and Darrell Hilliard, a member of Strother. Flowers explained that it would be expected that TWAMP would retaliate against MUG for a homicide of one of its members. If a gang failed to retaliate, it would be a sign of weakness, the gang’s established notoriety may decrease, it may be considered a weaker group, and other groups may attack them.
Flowers testified Senegal was a validated member of “Weller VP, which is an acronym for Villa Posse,” and part of TWAMP. Senegal had been a validated Weller VP since 1996. Flowers had been aware of Senegal’s presence in Fresno during his patrol work in 2000 or 2001, and personally observed him associating with members of the Fig Boys. When Senegal was arrested in this case, he identified himself as Villa Posse, and he had a “West Side Fig” tattoo on his arm.
As to Williams, Flowers testified he had “a difficult time trying to establish his hood,” but determined Williams was a member of “Weller VP, Villa Posse,” based on the totality of the circumstances. After he reviewed Williams’s background, Flowers “thought it was pretty easy” to conclude Williams was a member of Weller VP. Flowers started with an “old picture” of Williams, which gave him “a clear indication of ... at least foundation to who he belonged with. And I used that to establish not only the group but the associates and the current arrests that has been made or was made.” In April 2005, Williams admitted his affiliation with Villa Posse when he was arrested and booked into jail in this case. On cross-examination, Flowers clarified that Williams’s self-admission was “not one of the reasons I validate him. That was one of the criteria I used for the validation.”
Flowers testified Williams associated with other Weller Boys, and allegedly committed the instant offense along with other Weller Boys. Senegal, Williams, and Trinell “Petee” Beasley were present at the funeral of Darrell Hilliard, a Strother Boy/TWAMP. Flowers testified that Adavier Thomas was a member of Fig Weller VP, and Atavier Thomas was a member of the Weller Street gang.
Flowers conceded that Williams’s presence at that funeral was not contained in a report about the service, but testified Detectives Yee, Federico, and Gates attended the funeral for surveillance purposes and to provide security for the family members, and observed Williams there.
Flowers testified about several photographs introduced by the prosecution, which depicted Senegal throwing gang hand signs; Williams, Senegal, and Senegal’s brother wearing red jerseys, which was the “color of choice for most members of Villa Posse or Villain Bloods”; Williams and Senegal with a validated member of YBS, a TWAMP gang; and Williams and Senegal with members of Lee Street, another TWAMP gang. Flowers was not aware whether Williams had any gang tattoos.
On cross-examination, Flowers was asked to explain his testimony, that another factor used to validate Williams as an active member of the Weller gang, was because he was arrested with other known gang members.
“Q In fact, isn’t it true, Detective, that Mr. Williams was arrested in his own home with his girlfriend, and those were the only two people present at the time he was arrested?
“A Well, we’re talking about a specific crime that had an ongoing investigation, obviously. And over time, once it was determined that Mr. Williams was a suspect, he was, in fact, arrested for that case that involved other members of that same group.”
Flowers conceded Williams was at home with his girlfriend when he was arrested, and no other gang members were present at that time.
“Q So what you are really saying is that suspected or rumored to be involved in a gang crime and then arrested for that is the same thing as being arrested with other gang members? Is that what you are saying?
“A Correct.
“Q So the mere fact that Mr. Williams is suspected of being involved in a crime that you suspect to be gang related and is later arrested for that case is a validation criteria in your opinion?
“A I know Mr. Williams was arrested for his part in a crime that involved other gang members. Mr. Williams was arrested with other gang members.
“Q For his part in the crime that we’re right here determining whether or not he’s guilty of, right?
“A Right.”
Also on cross-examination, Flowers conceded it was possible that an individual booked for a gang-related crime, who might not be a gang member, could claim gang membership for protection while in custody. However, Flowers believed the gang might assault that individual if the false membership claim brought undue attention to that gang from law enforcement officials investigating that offense. It would be “very unhealthy” for someone to claim gang membership if that person has not been accepted as a member.
Detective Flowers testified that red was the predominant color of the Villa Posse gang. He admitted Williams was wearing blue when he was arrested, the U-Boys predominantly wore blue, and blue was the chosen color of the Crips. Flowers explained color distinctions among TWAMP and MUG:
“... I want everyone to keep in mind here in Fresno there is no color dispute. There is no barriers. You’ll have a gang with Crips and Bloods within it. Like in this case Villa Posse is a great example.”
Flowers cautioned that “[y]ou have to be careful” not to assume particular clothing is gang-related simply because of the color. Flowers testified the U-Boys wore both red and blue, blue was not a particular factor in Fresno gangs, and the “totality of [the] circumstances” may give some direction on the individual’s status aside from colors.
Flowers testified that Williams admitted membership in the Six Deuce Diamond Crips in 1994, but that gang was synonymous with Villa Posse.
“Q Aren’t there Six Deuce Diamond or former Six Deuce Diamond Crips in the TWAMP side of things and the MUG side of things?
“A Yes.
“Q So Six Deuce and Villa Posse can be the same thing, but they are not necessarily the same thing?
“A Well, again, the term Six Deuce, 107, Hoover Crip, Pyru Blood, these are usually picked up in certain facilities. Six Deuce Diamond Crips predominantly take on that gang affiliation while incarcerated in the California Youth Authority. Again, once they come out they gravitate back to their street or their hood. They are accepted, obviously, because of who they are or where they are from. But they still carry that Six Deuce Diamond, the 107, the Hoover Crip, Pyru Blood and so forth.
“Q Because that’s what they claim on the inside?
“A The inside and outside. Some folks don’t make it there, but they do accept it because who they closely associate with. They want to mimic that individual. They want to be like that person. Various reasons.”
On further cross-examination, Flowers testified another gang investigator established Williams was a gang member in 1999.
“Q What about within the last three years?
“A Reliable sources.
“Q No. Any other detective in your unit?
“A I think detectives I’m going to mention knew of Mr. Williams’ status from those facts established by [Detectives] Duane Freeman and Marcus Gray. [¶]…[¶]
“Q So within the last three years and not talking about what may have been the case in 1999, are you aware of other reliable sources that have identified Mr. Williams as a gang member?
“A Yes.
“Q And those would constitute, essentially, other gang members, correct?
“A Um, in one case yes. But the reason I identified those subjects or those persons as a reliable source without a name is because during that time—during the course of this investigation I had—didn’t have the opportunity to actually speak with them. That information was provided to detectives—homicide detectives who were working the case and who had a specific detail and provided limited information to other detectives such as myself. So for their protection I described him as reliable sources.
“Q Those other individuals who identified Mr. Williams as a gang member were themselves, in fact, members of the U-Boy gang, correct?
“A One individual. And I believe there were two or three witnesses in that area involved in this case that are—or were familiar with his status as a member of Weller, yes.”
Flowers conceded gang members were not always reliable sources.
The prosecution introduced documentary evidence of prior offenses committed by gangs within the TWAMP alliance. Flowers testified that Jermaine Levey, a validated member of Villa Posse, was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)); and Adavier Thomas, a validated member of Fig Weller VP, was convicted of shooting someone (§ 245, subd. (a)(2)). Flowers testified the victims in this case—Michael McGhee and Anthony Beard—were validated members of the U-Boys. As to the instant case, Flowers testified the murder and attempted murder of rival gang members would constitute predicate offenses.
The prosecutor set forth a hypothetical based upon the facts of this case, where validated members of the Weller Boys walk up to a gathering of U-Boys and start shooting without saying anything, and whether that act would have been designed to benefit or assist that particular gang. Detective Flowers testified such an assault would continue the established rivalry but, more importantly, improve the respect and reputation of the gang. “That’s the key thing that’s important to a gang. If reputation, respect that’s compromised, retaliation is almost immediate.” Detective Flowers’s opinion would be bolstered if the victims were U-Boys, and part of a larger group of U-Boys. It would be “unusual for such a large gathering of rivals to place themselves in such a dangerous position. It’s probably advantageous for the rival group to take advantage of that opportunity when so many members are present. You know, a greater number of victims would fall and further bolster the establish[ed] notoriety that the gang has had for so many years.”
The prosecutor asked another hypothetical, where two members of the Weller Gang, such as Williams and Senegal, were part of the group that walked up and opened fire on a gathering of U-Boys, including McGhee and Beard, whether they would have been acting to benefit the Weller gang. Flowers replied that in such a situation, the shooters’ individual status would grow, and the gang’s shared status would be far extended. “It would send a clear message to rivals that they are a force to be reckoned with.” The gang would also retaliate against any gang member or family who cooperated with the police or testified in court, they would be called snitches, and they would place themselves in harm’s way by cooperating, but Byrd explained some people cooperate because they have had enough of the gang lifestyle and culture.
Defense Evidence
Neither Williams nor Senegal testified. A defense investigator testified he interviewed Beard on May 21, 2005. Beard said he saw the gunmen for about three seconds, he paid the most attention to Senegal as he drew his weapon, and he heard rumors that Williams also was there. Beard said he was not able to identify Williams before he heard the rumors from his family, and he was about 70 percent sure of his identification of Williams. Beard said he was not involved in gang activity.
Cody Senegal, Shannon Senegal’s wife, testified that she recalled the afternoon of October 9, 2004. She was at home with Senegal when she received a telephone call from a family member that there had been a shooting on South Bardell. Ms. Senegal and her husband walked around the corner to the scene. There were a lot of police there. They also met “a lot of ladies,” including Chermane Nutt. Ms. Senegal testified the women were accusing “a lot of people out there, including Shannon.” Ms. Senegal tried to explain he was with her during the shooting. Ms. Senegal denied testifying for other family members in unrelated trials.
Dr. Robert Shomer, a psychologist, testified as an eyewitness identification expert. Dr. Shomer testified to his opinion that there is a distinct correlation between the amount of detail a person can provide after an event, and the accuracy of any subsequent identification. Dr. Shomer explained the passage of time adversely affects the accuracy of a person’s identification. There are other factors which diminish a witness’s ability to accurately remember, including the presence of a weapon, which tends to cause people to focus on it. A witness’s certainty of identification has no correlation to the accuracy of that identification. A person who identifies a stranger may become more confident of the identification over time, even as the memory diminishes.
Williams and Senegal were convicted of first degree murder of McGhee and attempted murder of Beard, with enhancements for firearm use and committing the offenses for the benefit of a criminal street gang. Williams and Senegal have filed separate appeals and have not joined in the issue(s) raised by the other party. On appeal, Williams contends there is insufficient evidence to support his convictions on the substantive offenses and the gang enhancements, and contends an officer’s testimony as a gang expert abrogates basic principles of due process. Williams also raises several constitutional challenges to the gang enhancement, that it is void for vagueness and violates his First Amendment right to free association.
DISCUSSION
I.
SUBSTANTIAL EVIDENCE OF SUBSTANTIVE OFFENSES
Williams contends his convictions for first degree murder and attempted murder are not supported by substantial evidence, and challenges the reliability and veracity of the identifications of Beard and Ms. Nutt. 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. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931 (Ferraez).)
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 (1998) 18 Cal.4th 297, 331.)
Williams attacks Beard’s identification testimony, that he was certain Williams was one of the gunmen, and contends Beard’s trial testimony was not reasonable, credible, or of solid value because Beard admitted he only identified Williams after he heard rumors from family and friends about Williams’s alleged involvement. Williams also attacks Ms. Nutt’s unsworn statements to Detective Byrd, that she saw Williams speaking to Petee and walking toward her mother’s house just before the shooting, and asserts these unsworn statements are unreliable because they are “the same as rumors on the street the eyewitnesses claimed to have heard,” and Ms. Nutt failed to testify to these statements when she appeared at trial, even though she had moved under the witness relocation program.
Williams correctly notes that Beard’s pretrial statements and trial testimony lack certainty as to his identification of Williams as one of the gunmen. Moments after he was shot, Beard told either his mother or sister that Shannon Senegal was one of the gunmen. A few hours later, Detective Byrd interviewed Beard in the emergency room; Beard said that Senegal was one of the gunmen, he did not know the identities of the other gunmen, but he thought he could probably identify them from photographs. The day after the shooting, Byrd again interviewed Beard in the hospital, and Beard again said Senegal was there but he did not know who the other two gunmen were.
Over two weeks after the shooting, Detective Byrd showed Beard a series of photographic lineups. Beard again identified Senegal as one of the gunmen, and said he looked directly at Senegal. As the interview continued, Beard identified one of the Thomas twins as a member of the Weller gang, and said he heard one of the twins was present during the shooting, but he could not distinguish between them and never actually saw him there. Beard also identified Williams from a photographic lineup. Beard said he was “positive” Williams was with Senegal during the shooting, Williams was one of the them “for sure,” but Beard was not sure if Williams had a gun. Detective Byrd asked why Beard failed to previously mention Williams. Beard replied that he heard rumors on the street that Williams was involved, and after hearing these rumors “it all registered to me” that Williams was there.
At trial, Beard testified he was positive that Williams was one of the gunmen, and explained it took him a while to figure out the names because the shooting happened so fast. On cross-examination, however, Beard admitted his family told him that Williams was involved, and he did not identify Williams until after his family talked to him about the case.
The instant case, however, involved far more than Beard’s delayed identification of Williams. In her first interview with the police, Beard’s sister, Ms. Nutt, placed Williams near her mother’s house just before the shooting. Ms. Nutt told Detective Byrd that she saw “Petee” talking to some individuals in a small brown car, and the occupants of that car were Williams, Senegal, one of the Thomas twins, and an unknown male. In her second statement to the police, Ms. Nutt admitted she had additional information but explained she had already received threats against her family, and her husband asked about their family’s possible placement in the witness relocation program. Ms. Nutt again stated that she saw Williams, Senegal, one of the Thomas twins, and the unknown male in the brown car talking to Petee. She further disclosed that she was standing on the porch of her mother’s house just before the shooting, as her brothers visited with the other family members at the barbecue. She saw four or five individuals walking on South Bardell toward their house, and she recognized them as the same individuals who had been in the small brown car and talking to Petee: Williams, Senegal, and one of the Thomas twins. Ms. Nutt stated that she had seen these men in the neighborhood on prior occasions so their presence was not unusual, and she went inside the house. Within 30 seconds, she heard the sound of firecrackers, which were the gunshots.
There is thus substantial evidence, albeit circumstantial, that Williams and Senegal were among the gunmen in this case. From the moment of the shooting, Beard consistently said that Senegal was one of the gunmen, and he never wavered from that identification. Ms. Nutt was also consistent in saying that she saw Williams, Senegal, and one of the Thomas twins speaking to Petee, very close to their house and just before the shooting. Ms. Nutt also said that she saw Williams, Senegal, and one of the twins walking toward the house, she went inside, and she heard the gunshots about 30 seconds later. Such circumstantial evidence thus places Williams with Senegal just seconds before the shooting.
Williams makes much of the fact that Ms. Nutt failed to repeat these statements when she testified at trial, even though she had been placed in the witness relocation program. Williams also complains that Ms. Nutt may have simply repeated the rumors referred to by Beard. However, such circumstances are relevant to the witness’s credibility rather than to whether there is substantial evidence to support the convictions. Moreover, Ms. Nutt did not disown her statements to Detective Byrd. At trial, she testified her memory was more accurate during her interviews with Byrd, and her second statement was more accurate than her first statement because she “didn’t want to be involved in it” when Byrd interviewed her the first time. The jury was well aware of the timing and circumstances of Ms. Nutt’s pretrial statements and capable of determining the credibility of her account.
As explained ante, this 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 at p. 331.) Ms. Nutt’s statements to Detective Byrd were not inherently improbable or impossible of belief, but instead presented credibility questions for the jury’s resolution, and Williams’s convictions are supported by substantial evidence.
II.
ADMISSION OF EXPERT TESTIMONY
Williams contends there is insufficient evidence to support the jury’s findings on the gang enhancements. He separately challenges the admissibility of expert testimony from a law enforcement officer as to various aspects of the gang enhancement. He argues a law enforcement officer is not qualified to address the behavior and characteristics of gang members, an officer’s testimony is not necessary to assist the jury because it is generally known that gang members are violent, and such expert testimony violates due process because it permits the prosecution to introduce otherwise inadmissible character evidence.
Given the interrelated nature of Williams’s challenges to the admissibility of expert testimony with his substantial evidence arguments, we will first address the admissibility of expert opinion in a case involving the criminal street gang enhancement. As we will explain, Williams never raised any of these objections to the trial court, and such issues have been considered and rejected by other courts.
A. Background
Williams and Senegal filed numerous motions in limine as to the nature and extent of the proposed testimony of the prosecution’s gang expert, Detective Ron Flower. First, Williams and Senegal moved to bifurcate the gang enhancements from the substantive offenses, argued gang evidence would be prejudicial as to the underlying offenses, particularly as to drug transactions, weapons use, and predicate offenses, but conceded that limited evidence of gang involvement might be probative as to motive for the substantive crimes. The court denied the bifurcation motion. Neither Williams nor Senegal has raised the bifurcation issue on appeal.
Williams and Senegal also filed a motion for Detective Flowers to divulge the source for any hearsay statements which formed the basis for his opinions. Williams and Senegal acknowledged the prosecution had complied with discovery and they had received “a good amount of information,” but demanded the identity of any confidential sources relied upon by Flowers to form his opinions. The prosecutor replied he was not aware of any additional information relied upon by Flowers, aside from that already provided to Williams and Senegal in discovery. The court denied Williams’s and Senegal’s motions and held Flowers could testify as to his opinions, provided a sufficient foundation was made.
Williams moved to exclude booking statements, when he claimed affiliation with Villa Posse, as involuntary and obtained in violation of Miranda. The court conducted an evidentiary hearing, and held there was no Miranda violation, Williams’s statements were not involuntary, and denied Williams’s motion to exclude. The court also denied Williams’s motion to exclude these statements as prejudicial under Evidence Code section 352.
Williams objected to the prosecution’s request to introduce photographs of Williams with other gang members as prejudicial and cumulative. The court overruled the objection. The court granted Williams’s motion to exclude references to a “Crime Stoppers” tip, which allegedly involved Williams and a vehicular shooting, and evidence about prior unrelated shootings between U-Boys and Weller Boys.
Williams moved to preclude Flowers from testifying about what his specific intent was, if he was the shooter in this case at all. The court granted that motion, and found an expert could not testify about “what either of these [appellants] had in their minds, if they were the individuals who fired these shots. And he’s not entitled to testify that they were, in fact, the individuals who did that. That’s not the appropriate subject of a gang expert testimony in this court’s view. It invades the province of the jury on this case.” However, the court also found the gang expert was “entitled to testify about his opinon as to the motive for the shooting, whoever may have perpetrated it.”
When the prosecution called Detective Flowers, the court instructed the jury that it was going to hear testimony about gang activity and membership, it could use such evidence only for the limited purpose of deciding whether Williams’s and Senegal’s had a motive to commit the charged offenses, the identity of Williams and Senegal as participants, and whether Williams and Senegal acted with the intent, purpose, and knowledge required to prove the gang enhancements. The court further instructed the jury that it could consider the evidence to evaluate a witness’s credibility, and to consider the facts and information relied upon by the expert in reaching his opinion.
“… You may not consider this evidence for any other purpose. You may not conclude from this evidence that a defendant is a person of bad character or that he has a disposition to commit any crime. Bear in mind that the fact a particular defendant is a member of a gang, if proven to be true, is not prove [sic] of his guilt of this or any other crime.
“Evidence of crimes committed by other gang members may be considered by you only for the purpose of determining whether or not the Defendants are members of a criminal street gang as will be defined in the instructions of the court at the end of the case and not for any other purpose.”
Thereafter, Detective Flowers testified as set forth ante. Williams and Senegal renewed their objections to his discussion of the photographs and to the prosecutor’s use of hypothetical questions based on scenarios similar to the instant case. The court instructed the jury as to the appropriate consideration of hypothetical questions:
“In examining an expert witness counsel may ask a hypothetical question. This is a question in which a witness is asked to assume the truth of a set of facts. And, of course, you know the issue of whether the defendants here did or did not participate in this crime is for you to decide. But—and to give an opinion based on that assumption in permitting such a question the court does not rule and does not necessarily find that these assumed facts have been proved it only determines they are within the possible range of the evidence. So it’s for you to decide ultimately, from all the evidence presented in this case, whether the facts that [the prosecutor] here has asked the witness to assume, in fact, have been proved.”
Aside from basic evidentiary objections as to the form of questions, Williams and Senegal did not otherwise object to Flowers’s testimony or his appearance as a prosecution expert.
After the convictions in this case, Williams and Senegal filed motions for a new trial, and argued the court should have granted the bifurcation motion because gang evidence was so prejudicial it was impossible for them to receive fair trials. The court denied the new trial motion.
B. Analysis
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.’ [Citation.]” (People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1227; Evid. Code, § 801, subd. (a).)
“[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 (McAlpin).) “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.]” (McAlpin, supra, 53 Cal.3d at pp. 1299-1300; People v. Prince (Apr. 30, 2007, S036105) __ Cal.4th __ [2007 D.A.R. 6007, 6022].)
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.) “Section 186.22, subdivision (b)(1) 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).)
“[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.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 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; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) “It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.]” (Frank S., supra, at p. 1196.) Such areas include “testimony about 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 (Sengpadychith); Gardeley, supra, 14 Cal.4th at p. 620; People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9 (Vy).) 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. (Sengpadychith, supra, 26 Cal.4th at p. 324; Gardeley, supra, 14 Cal.4th at p. 620; 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.]” (People v. Valdez (1997) 58 Cal.App.4th 494, 507 (Valdez).)
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. Torres (1995) 33 Cal.App.4th 37, 46-47.) 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.” (Id. 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 (Apr. 30, 2007, S036105) __ Cal.4th __ [2007 D.A.R. 6007, 6024].)
“‘[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.)
In the instant case, the court properly admitted Detective Flowers’s testimony as an expert on criminal street gangs. His testimony fell within the parameters of admissible evidence on the street gang enhancement. He set forth his experience investigating and contacting gang members in southwest Fresno, and testified about the existence and composition of gangs in that area. He described the Weller gang as composed of 23 individuals, with their turf on a specific block, with their primary activity as narcotics sales, it was part of Villa Posse, and both gangs were part of the TWAMP alignment. He testified about predicate crimes, and the prosecution introduced documentary evidence about those convictions. He did not address the ultimate issues of whether Williams and Senegal were guilty or innocent of the substantive offenses, or whether the gang enhancements were true. He responded to appropriate hypothetical questions, and the court instructed the jury as to the limited admissibility of his testimony on these points. We presume the jury followed the court’s limiting instructions on these issues. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
On appeal, Williams raises a myriad of challenges to Detective Flowers’s testimony that he failed to raise before the trial court. Williams complains that an expert is not required to assist the jury in understanding gang behavior because of “the large number of law enforcement-oriented televisions shows demonstrating the violent nature of criminal street gangs, repeated headlines and stories in the newspapers about the impact and activities of criminal street gangs and the average person’s understanding of the power of fear, threats and the ability to intimidate others ....” As explained ante, however, 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.]” (McAlpin, supra, 53 Cal.3d at pp. 1299-1300; People v. Prince (Apr. 30, 2007, S036105) __ Cal.4th __ [2007 D.A.R. 6007, 6022].) The possibility that an average person may have some general knowledge that gangs engage in criminal activity does not mean that the entirety of the subject—the specific names of local street gangs, their turf, their specific activities, their rivalries, the relationship of the suspects and victims within those gangs—is not beyond common experience to negate the need for expert testimony to assist the trier of fact.
Williams asserts that otherwise inadmissible character evidence is “laundered” through the STEP Act by expert witnesses, “magically transmogrifying evidence of the character of the group into evidence of ‘motive’ of the individual.” Williams contends the STEP Act has been used to abrogate the traditional rules of evidence and permit law enforcement officers to testify about character evidence. As we have explained, however, the California Supreme Court has held that law enforcement officers may testify as experts in gang cases, and Detective Flowers’s testimony fell within the parameters of admissibility discussed ante. (People v. Hernandez, supra, 33 Cal.4th at p. 1049.)
Williams complains that law enforcement officers are the least qualified to testify about the culture and psychology of criminal street gangs:
“… The government agent—Ron Flowers—used in the instant case was not trained in sociology, psychology, or any other area of competence with respect to group dynamics. As a law enforcement officer, he routinely encounters only those members of groups who attract law enforcement attention. No anthropologist, sociologist, or group-oriented psychologist would consider it reliable to make determinations based on the slanted quality of evidence these law enforcement officers are routinely allowed to use.” (Italics omitted.)
In his reply brief, Williams expands upon these thoughts and offers additional reasons why law enforcement officers are unqualified as experts:
“There is a danger of synecdoche in the work of such officers hired by the government to investigate criminal activity. It is their job to encounter and pursue criminal elements within gangs, not to conduct anthropological or sociological research. There is an old saying that when the only tool you have is a hammer, everything begins to look like a nail. It is part of appellant’s argument that the utilization of police officers as expert witnesses regarding the sociology and psychology of gangs, or the customs and habits (rightly the realm of anthropologists) of gangs, results in the introduction of evidence which would not be properly relied upon by actual experts in the field, but is typically relied upon by law enforcement officers for valid law enforcement purposes....”
“Synecdoche” is defined as “[a] figure of speech in which a part is used for the whole (as hand for sailor), the whole for a part (as the law for police officer).” (American Heritage Dict. (3d college ed. 2000) p. 1376, italics in original.)
Williams thus concludes that “[r]eal sociologists, psychologists, and anthropologists” (italics omitted) would not rely upon the type of information relied upon by law enforcement officers testifying as gang experts.
As we have noted, Williams completely failed to raise these issues before the trial court. In a footnote in his reply brief, Williams broadly raises ineffective assistance of counsel as an alternative ground for any issues which his defense counsel did not raise objections. Williams did not raise any ineffective assistance claims in his opening brief. “The California Supreme Court long ago expressed its hostility to the practice of raising new issues in an appellate reply brief.” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Points raised for the first time in a reply brief will ordinarily not be considered “‘because such consideration would deprive the respondent of an opportunity to counter the argument.’ [Citation.]” (Ibid.) Williams has not attempted to explain why we should consider the new issue raised in his reply brief.
In any event, in his attacks upon law enforcement officers as expert witnesses, Williams essentially requests this court to disregard the long line of cases establishing many factors relating to gangs and the STEP Act that are the proper subject of law enforcement expert testimony. (Gardeley, supra, 14 Cal.4th at p. 617; Killebrew, supra, 103 Cal.App.4th at pp. 653-658.) We decline to depart from this well-reasoned line of authority.
While declaring as a truism that experts on gangs should have specialized training in gang sociology and psychology before they are allowed to testify, Williams does not back up his statement with any references to authority requiring the experts to meet his proposed standard of qualifications. Indeed, if Williams’s specially trained experts were called to testify, we would offer the guess that their knowledge would be based primarily on information gathered and processed by law enforcement officers. We note that the information required to prove the elements of a criminal street gang under the STEP Act (an organization having three or more individuals, having as one of its primary activities the commission of criminal acts, having a common name or identifying sign or symbol, and engaging in a pattern of criminal gang activity) is precisely the type of information that is in the purview of law enforcement officers. The STEP Act itself does not require any deep delving into the social or psychological reasons for the behaviors.
Williams suggests that a police officer should not be permitted to testify as a gang expert unless the trial court conducts the type of inquiry required by People v. Kelly (1976) 17 Cal.3d 24, and finds the expert’s proposed testimony has been generally accepted in the particular field to which it belongs. Such an argument has been rejected in other contexts. (See, e.g., U.S. v. Hankey (9th Cir. 2000) 203 F.3d 1160, 1169 [expert opinion on gang culture is not examined for acceptance in the scientific community, nor should it be subject to peer review], quoted with approval by People v. Prince (Apr. 30, 2007, S036105) __ Cal.4th __ [2007 D.A.R. 6007, 6023].)
We thus decline Williams’s invitation to ignore existing California Supreme Court authority on the admissibility of expert testimony in gang cases, and agree with other appellate courts as to the nature and extent of that testimony, and find the court herein properly permitted Detective Flowers to testify as the prosecution’s expert on criminal street gangs.
III.
SUBSTANTIAL EVIDENCE OF GANG ENHANCEMENTS
We now turn to Williams’s challenges to the sufficiency of the evidence of the gang enhancement. He contends the enhancements must be stricken for insufficient evidence, Detective Flowers’s testimony was confusing and did not assist the jury, and Flowers’s testimony was not credible, reasonable, or of solid value. Williams also contends that since the gang enhancements are not supported by substantial evidence, the firearm enhancement based on the STEP Act (§ 12022.53, subd. (e)) must also be stricken.
As with substantive offenses, the same substantial evidence standard applies when determining whether the evidence is sufficient to sustain a jury’s finding on a gang enhancement. (Duran, supra, 97 Cal.App.4th at pp. 1456-1457; People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322 (Villalobos).) 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 pp. 930-931; 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; People v. Morales (2003) 112 Cal.App.4th 1176, 1197.) Gang membership alone cannot prove the requisite specific intent. (Gardeley, supra, 14 Cal.4th at pp. 623-624.) “As to the second prong of the enhancement, all that is required is a specific intent ‘to promote, further, or assist in any criminal conduct by gang members.’ (§ 186.22, subd. (b)(1).) 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 People v. 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.)
There is clearly substantial evidence to support the jury’s findings on the gang enhancements. As explained in section I, ante, Ms. Nutt stated that she saw Williams, Senegal, and one of the Thomas twins in the brown car, and then saw them walking toward her house just seconds before she heard the shots. Beard consistently said that he saw three men walk up to the front of the house and start shooting, and Senegal was one of the gunmen. Based upon Detective Flowers’s testimony, there is substantial evidence that Williams was a member of the Weller gang, based upon his self-admission at booking and his association with other members of the Weller VP gang. There is also substantial evidence that Senegal was a member of the Weller VP gang, similarly based on his self-admission and long-term association with other gang members. Detective Byrd determined that Adavier Thomas was in custody on the day of the shooting but Atavier was not in custody. Flowers testified that both Thomas twins were members of Weller VP. There was also substantial evidence that Beard, McGhee, and their family members were members of the rival U-Boys. While Beard denied his own membership, he admitted family members were associated with the U-Boys. Flowers testified that both Beard and McGhee were members of the U-Boys. The instant case thus involved at least three Weller VPs walking up to a large gathering of U-Boys, drawing weapons, and repeatedly firing into the group. Such an act was clearly done for the benefit of Weller VP.
Williams raises several challenges to the sufficiency of the evidence of the gang enhancements, and asserts Detective Flowers’s testimony was confusing, internally inconsistent, and did not constitute evidence that was reasonable, credible, and of solid value to support the jury’s findings. Williams particularly attacks Flowers’s testimony about the TWAMP and MUG alliances, that he failed to explain the source for those acronyms, that it was not clear whether TWAMP and MUG were individual gangs with three or more persons, and the STEP Act only applies to gangs and not alliances. Williams complains that Flowers “made it impossible to determine accurately the names of the groups involved and to determine who belonged to which gangs,” such that his testimony about the alliances was “inconsistent, leaving a reasonable trier of fact without a way to sort them out.” (Italics in original.) In making this argument, Williams asserts Flowers’s testimony did not make sense, and quotes several of Flowers’s statements out of context. Williams argues:
“... Flowers testified ‘Villa Posse, Lee Street, Weller Boys, which is synonymous with Fig, Lotus Street, Grove, the Strother Boys, Villain Blood—sometimes that synonymous with Villa Posse as well.’ There are multiple ways to parse this statement; most of them don’t make sense. Is Villa Posse, among other names, synonymous with Fig? Or is it synonymous with Fig, Lotus Street, Grove, the Strother Boys and Villian Blood? Or is it just that Weller Boys is synonymous with Fig and Villian Blood is sometimes synonymous with Villa Posse?”
Williams also complains the “confusion” from Flowers’s testimony distracted the jury from the fact that the Weller Boys and U-Boys “lived in extreme proximity to one another” and frequently interacted.
“… Because Flowers was unable to come up with a single example of any actual rivalry between Weller and U-Boys, it was necessary to concoct a rivalry between ‘alliances’ comprised of virtually every gang member in southwest Fresno.”
Williams asserts there is no evidence whether gang members acknowledge the TWAMP and MUG alliances described by Flowers, or whether the acronyms were created by the police.
Williams’s arguments misrepresents the entirety of Flowers’s testimony. As set forth ante, Flowers explained that the gangs in southwest Fresno are primarily named based on their neighborhood or street, and there were several street gangs which were synonymous or had merged with each other. For example, he explained that Martin Luther King Avenue was formerly named Fig Avenue, and the Fig Boys retained their name despite the street change. He also explained there was some overlap between the Fig Boys and the Weller Boys. More importantly, however, he explained that the Fig Boys and Weller Boys were smaller street gangs, and they were part of the larger Villa Posse gang, that other small street gangs were also part of Villa Posse, and members of those smaller gangs claimed allegiance to Villa Posse.
Flowers further explained the southwest Fresno neighborhood and street gangs had formed loose alliances and divided into rival groups known as TWAMP and MUG. He identified MUG as the Modoc, U-Boys, and Garrett Street gangs, whereas TWAMP consisted of Villa Posse, Weller Boys, Fig Boys, Lee Street, Strother Boys, and other smaller groups which were part of Villa Posse. Flowers explained the gangs formed these two rival alliances to increase their strength, thwart law enforcement, and increase their own narcotics activities.
Williams complains there is no evidence that TWAMP and MUG are separate gangs, or the nature of the relationship between TWAMP, MUG, Villa Posse, Weller, and U-Boys, such that Flowers could not rely on the activities of one gang and impute those activities to another gang. Williams’s arguments ignore the clarity of Flowers’s testimony, in which he explained that the gangs in southwest Fresno are organized by neighborhood or street, and that these gangs have aligned into two rival groups, TWAMP and MUG. Flowers further explained that Weller was part of a larger parent gang, Villa Posse, and both Weller and Villa Posse were aligned with TWAMP, whereas the U-Boys were part of MUG. Flowers’s testimony about parent and subset gangs, and the interrelated nature and rivalries within such groups, was clearly within the realm of admissible expert testimony for the jury’s consideration. (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1001 [“[t]he association of multiple names with a gang satisfies the statute’s requirement so long as at least one name is common to the gang’s members”]; see, e.g., In re Jaime P. (2006) 40 Cal.4th 128, 131 [Calle San Marco gang as subset of both the Surenos and the Mexican Mafia]; People v. Brown (2003) 31 Cal.4th 518, 546, fn. 10 [Fruit Town gang as a subset of the Bloods]; People v. Loeun (1997) 17 Cal.4th 1, 6, fn. 2 [Tiny Rascals as subset of Crip gang, Cambodians With Attitude]; People v. Fudge (1994) 7 Cal.4th 1075, 1087 [Five Deuce Hoover Crips and Broadway Crips as subgroup of Crips; Van Ness Gangsters as subgroup of Bloods]; In re I.M. (2005) 125 Cal.App.4th 1195, 1201 [Mexican Locos as a subset of the Surenos]; People v. Santos (2007) 147 Cal.App.4th 965, 970 [crime committed by “‘66,’ a subset of East Coast Crips”]; People v. Smart (2006) 145 Cal.App.4th 1216 1221-1222 [case involving member of “Garden Block Crip (24th Street),” which consists “of the 29th, 24th and 21st Street subsets”].)
Williams asserts Flowers’s testimony was inconsistent based on Beard’s admission that he repeatedly bought drugs from Williams, and that it defied possibility that a U-Boy would buy drugs from a Weller gang member. However, Flowers testified the street gangs aligned with TWAMP would not tolerate drug sales within in their neighborhoods by a member of a gang aligned with MUG. Flowers did not testify that a MUG could not buy drugs from a TWAMP. Moreover, Beard testified that he knew Williams from “Weller,” implying that he might have gone into the Weller area to purchase drugs from him. Flowers never testified that the rival organizations prohibited rivals from purchasing drugs, only that violent consequences would occur if a gang tried to sell drugs on rival turf.
Williams points to Flowers’s testimony about Six Deuce Diamonds as internally inconsistent with the rest of his testimony, because he said that gang existed within TWAMP and MUG and was a rival of itself. As set forth ante, however, Flowers explained that prison gangs follow the well known division between Crips and Bloods, and an inmate might claim the Crip gang of Six Deuce Diamonds, but the street gangs in southwest Fresno did not clearly fall within those rivalries, a gang member would return to his neighborhood or street gang upon his release from prison, and Villa Posse and Six Deuce Diamonds were examples of such situations.
Williams also attacks Flowers’s testimony as internally inconsistent because he initially testified it was “difficult” to determine if Williams was a gang member, whereas he also testified it was “pretty easy” to determine he was a Weller Boy, and that Flowers’s testimony was based on unreliable statements from other gang members. The entirety of Flowers’s testimony reflects that when he started to examine Williams’s gang affiliations, it was difficult and he initially relied upon an old photograph to determine his associates. As he continued his investigation, however, he determined Williams associated with other Weller Boys, and explained the basis for his opinion.
Williams next asserts Flowers improperly testified as to ultimate issues when he said the Weller Boys were “‘recognized’” as part of Villa Posse, and Villa Posse was “‘pretty widespread’” in Fresno. Williams complains Flowers failed to explain “exactly who recognized this” (italics in original), or why the Weller Boys were a criminal street gang just by being a part of Villa Posse. Williams further complains that Flowers addressed ultimate issues when he testified to his belief that Williams was arrested with gang members, even though Flowers admitted Williams was not with any gang members when he was actually physically arrested, but that Williams allegedly committed the underlying substantive offenses with other Weller Boys. In making this argument, Williams asserts that Flowers’s testimony improperly addressed ultimate issues and “‘did nothing more than inform the jury how [Flowers] believed the case should be decided,’” in violation of Killebrew, which prohibits an expert from testifying as to ultimate issues in gang enhancement cases.
Williams’s reliance upon Killebrew is misplaced. Killebrew involved a conspiracy to possess a handgun among gang members who were traveling in three cars. There was conflicting testimony whether the defendant was in one of three vehicles at issue. A gang expert offered admissible testimony about gang culture and psychology, but also testified about the subjective knowledge and intent of each individual in the cars, and declared that when one gang member in a car possesses a gun, every other gang member in the car knows about it and constructively possesses it. The expert went so far as to testify that the occupants of one of the cars, 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.)
Killebrew held the expert’s testimony about a specific defendant’s subjective knowledge and intent was not the type of “culture and habit testimony” admissible in gang enhancement cases. (Killebrew, supra, 103 Cal.App.4th at p. 654.)
“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 [in this case], 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 expert] 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 expert’s] beliefs were irrelevant. [¶]…[¶] Since the erroneously admitted testimony provided the only evidence to support the conspiracy theory, reversal of the judgment is required.” (Killebrew, supra, 103 Cal.App.4th at pp. 658-659.)
Williams contends Detective Flowers’s testimony addressed his subjective knowledge and intent in violation of Killebrew. We first note that Williams did not raise this objection below. A similar situation existed in People v. Gutierrez (2002) 28 Cal.4th 1083, where the defendant argued on appeal that an expert gave impermissible opinion testimony on the ultimate issue. Gutierrez noted the defendant never raised that objection below, and “[a]ccordingly, the claim of error has not been preserved on appeal. [Citations.]” (Id. at pp. 1139-1140; see also Valdez, supra, 58 Cal.App.4th at p. 505; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208-1209.)
As we have previously noted, Williams broadly raised ineffective assistance of counsel, in a footnote in his reply brief, as an alternative ground for any issues which his defense counsel did not raise objections. Williams fails to explain why we should diverge from the well-recognized rule that points raised for the first time in a reply brief will not ordinarily be considered. (Reichardt v. Hoffman, supra, 52 Cal.App.4th at p. 764.) In any event, Williams’s complaints about Detective Flowers’s testimony are meritless. Flowers’s testimony addressed the culture and habits of gangs in southwest Fresno related to motive, and not to the subjective intent and knowledge of Williams and Senegal. Although the two topics may be interrelated, most courts addressing the issue have found evidence of a similar character to be admissible. (See, e.g., People v. Hernandez, supra, 33 Cal.4th at p. 1049 [“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”]; People v. Williams (1997) 16 Cal.4th 153, 193-194 [in gang-related case, gang evidence is generally admissible if relevant to motive or identity]; Ferraez, supra, 112 Cal.App.4th at pp. 928, 930-931 [gang expert properly allowed to opine that drugs in defendant’s possession were intended to be sold for benefit of or in association with gang, and that proceeds would be used to benefit gang]; Valdez, supra, 58 Cal.App.4th at pp. 507-509 [trial court properly admitted expert opinion concerning whether the defendant acted for benefit of gang]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370-1371 [expert testimony highly probative on issues of intent and motive; reasons that defendants sought out person who crossed out their graffiti and responded violently to victim yelling gang name, fell within permissible scope of expert testimony]; People v. Gamez (1991) 235 Cal.App.3d 957, 964, 968, fn. 3 [officers properly gave opinion that motive for shooting was retaliation for earlier shooting] (reversed on other grounds by Gardeley, supra, 14 Cal.4th at p. 624, fn. 10); People v. Harvey, supra, 233 Cal.App.3d at pp. 1226-1229 [officer properly allowed to testify regarding significance of various activities and role of each defendant in hierarchy of Colombian cocaine distribution cell]; see also People v. Zermeno (1999) 21 Cal.4th 927, 929-930 [although the propriety of expert’s testimony was not at issue, Supreme Court noted that expert opined the defendant mistook victim for member of rival gang and attacked in retaliation for earlier incident].)
Williams asserts Flowers’s addressed his subjective intent in violation of Killebrew because he testified that Williams and Senegal acted to benefit the gang. Williams cites to a portion of the record where Flowers responded to the prosecutor’s hypothetical question and testified that it would be unusual for a large gang gathering to occur so close to rival turf, and it would be advantageous for a rival group to take advantage of that situation. Flowers’s testimony did not address the topics deemed inadmissible in Killebrew. Flowers, as the prosecution’s gang expert, was permitted to testify about the identity and existence of certain gangs, and did not testify as to any ultimate issues. Flowers properly testified that based upon his experience as an officer and member of the MAGEC team, the Weller Boys was a street gang which consisted of 23 members, occupied the 2300 block of Weller Street, with the primary activity of narcotics sales. Flowers further explained that Villa Posse was a larger gang which consisted of numerous smaller neighborhood gangs in Fresno. Flowers’s testimony on these points did not reach ultimate issues in the case.
Williams points to another area where Flowers’s testimony allegedly reached ultimate issues. He argues Flowers’s testimony was “so internally inconsistent and so confusing” that the jury found the gang enhancements true only because Flowers “told the jury that he believed Weller was a criminal street gang and [Williams] was a member of that criminal street gang whose subjective intent was to act for the benefit of the gang.” Flowers never stated his personal opinion as to guilt or innocence or stepped into the shoes of the trier of fact. Instead, he testified that the crimes were committed for the benefit of the gang based on his knowledge of the motivations behind this crime and the conflicts between the street gangs aligned with TWAMP and MUG. Such an opinion was proper in light of the charges, and the fact that the average juror is not privy to the machinations in the average gangster’s mind. (See Valdez, supra, 58 Cal.App.4th at pp. 507-508; 1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, § 89, pp. 635-636 [“‘[I]n this state we have followed the modern tendency and have refused to hold that expert opinion is inadmissible merely because it coincides with an ultimate issue of fact.’ (People v. Cole (1956) 47 C[al].2d 99, 105, 301 P.2d 854 ...)”].)
Williams complains Flowers’s responses to defense questions were “deliberate attempts to avoid any agreement with the defense; they are deliberately obfuscatory and obstructionist.” Flowers was not obliged to agree with defense questions, and ably responded to cross-examination as to the underlying reasons for his opinions.
We thus conclude Detective Flowers’s testimony was properly admitted and addressed gang culture and habits, and he did not address ultimate issues as defined in Killebrew. Williams’s objections go to the weight rather than the admissibility of his testimony, the jury was obliged to make these factual and credibility determinations, such determinations are not reweighed on appeal, and there is nothing in Flowers’s testimony which rendered it inherently implausible or impossible of belief. The jury’s findings on the gang enhancements, and the related firearm enhancement (§ 12022.53, subd. (e)), are supported by substantial evidence.
IV.
CONSTITUTIONAL CHALLENGES TO THE STEP ACT
Williams raises two constitutional challenges to the STEP Act. Williams never raised any constitutional challenges to the STEP Act before the trial court, but we shall address these arguments since they involve pure questions of law reviewable absent an objection. (See, e.g., People v. Yeoman, supra, 31 Cal.4th at p. 118.)
First, Williams contends the STEP Act is void for vagueness and unconstitutional. His argument is based on the existence of appellate cases which have interpreted and applied the STEP Act, from which he asserts that “the continuing struggle to interpret the STEP Act has resulted in increased confusion through the deletion of whatever restraints on arbitrary and discriminatory enforcement the STEP Act (arguably) originally contained.” He further asserts that the “end result” of these cases “is that the STEP Act now fails” the constitutional test for vagueness.
“… A facial vagueness challenge is based on the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, and on article I, section 7 of the California Constitution. Citation. Under both the federal and the state Constitutions, vagueness invalidates a criminal statute if the statute ‘“fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits ...”’ or if it ‘“may authorize and even encourage arbitrary and discriminatory enforcement.” Citation.’ Citations.” (In re Jorge G. (2004) 117 Cal.App.4th 931, 938.)
In Sengpadychith, supra, 26 Cal.4th 316 the California Supreme Court prefaced its opinion with the statement that it has continued to struggle, step by step, “through the thicket of statutory construction issues presented by the California Street Terrorism Enforcement and Prevention Act of 1988.” (Id. at p. 319.) From this statement Williams argues that the California Supreme Court has had to struggle with the STEP Act, therefore persons of ordinary intelligence have struggled, and the Supreme Court’s interpretations of the STEP Act come too late to enable such persons to modify their behavior and avoid the loss of liberty.
If Williams’s theory that struggles over the correct interpretation of a law result in a valid facial vagueness challenge were true, there would be very few laws that would withstand such a challenge. While the intricacies of the STEP Act have been fine tuned by case law, the law provides detailed and sufficient notice of what conduct it prohibits. In fact, although not acknowledged by Williams, the California Supreme Court has held that the “detailed requirements of the STEP Act are sufficiently explicit to inform those who are subject to it what constitutes a criminal street gang for purposes of the act.” (Gardeley, supra, 14 Cal.4th at p. 623.) Moreover, in People v. Castenada (2000) 23 Cal.4th 743, the California Supreme Court found that the substantive crime of participation in a criminal street gang is not void for vagueness: “Through section 186.22(a)’s plainly worded requirements—criminal knowledge, willful promotion of a felony, and active participation in a criminal street gang—our Legislature has made it reasonably clear what conduct is prohibited [citation] by ‘delineat[ing] the range of forbidden conduct with particularity’ [citation]. And there is nothing in section 186.22(a)’s language that would encourage arbitrary or discriminatory law enforcement. [Citations].” (Id. at p. 752.)
Williams asserts that the case law surrounding the STEP Act has only made things worse, and criticizes holdings of the California Supreme Court and appellate opinions which have interpreted and applied the STEP Act. Williams fails to recognize that this court is bound by opinions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, we agree with the appellate opinions which have interpreted the STEP Act, and we do not believe that judicial interpretation of the STEP Act has altered it into a statute that fails to provide notice that will enable ordinary people to understand what conduct it prohibits.
Williams’s second constitutional challenge is that the STEP Act violates his First Amendment right to free association, such that he was convicted because of guilt by association with other gang members.
“Section 186.22 has been upheld against a variety of constitutional challenges, including claims based upon the First Amendment and the due process clause of the Fourteenth. [Citations.] As these cases have explained, the carefully crafted terms of the statute ensure that mere membership in a criminal street gang will not be punished and that groups or associations whose primary purpose is not the commission of crime will be excluded from coverage. [Citations.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 633-634.)
Williams fails to acknowledge that the California Supreme Court has rejected the free association argument. “... [T]he STEP Act punishes conduct, not association.” (People v. Loeun, supra, 17 Cal.4th at p. 11, italics in original; Gardeley, supra, 14 Cal.4th at pp. 623-624.) “The requisite ‘pattern of criminal gang activity’ is merely part of what the prosecution must prove to establish that the current crime is related to an ongoing ‘criminal street gang.’ [Citation.] Nothing in the statutory scheme suggests that the Legislature intended that the prosecution could prove this ‘pattern’ only if it could show that a defendant had knowledge of prior crimes committed by fellow gang members.” (People v. Loeun, supra, 17 Cal.4th at p. 10.) “… Moreover, the STEP Act satisfies the requirements of due process by ‘impos[ing] increased criminal penalties only when the criminal conduct is felonious and committed not only “for the benefit of, at the direction of, or in association with” a group that meets the specific statutory conditions of a “criminal street gang,” but also with the “specific intent to promote, further, or assist in any criminal conduct by gang members.” [Citation.]’ [Citation.] We do not understand the due process clause to impose requirements of knowledge or specific intent beyond these, and defendant cites nothing to convince us otherwise.” (Id. at p. 11; see also People v. Gamez, supra, 235 Cal.App.3d at pp. 969-976; In re Alberto R. (1991) 235 Cal.App.3d 1309, 1323-1324.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., LEVY, J.