In re Andrew A.

Filed 3/5/07 In re Andrew A. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Ronald P. Kreber, Judge. Affirmed.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

Andrew A., now 16 years old, was charged with possession of a knife on school grounds. The petition alleged the crime was committed for the benefit of a criminal street gang. Following an adjudication hearing, the juvenile court found true all allegations in the petition. Andrew argues on appeal there was insufficient evidence to support the gang enhancement. Specifically, he argues there was insufficient evidence he possessed the knife for the benefit of a criminal street gang, or of the gangs primary activities. We affirm.

The prosecutions expert witness on gangs testified, based on proper hypothetical questions, that the crime was committed to benefit or promote a gang, in accordance with well-established precedent. We reject Andrews argument that the expert improperly testified to Andrews subjective intent. Combined with Andrews own statements of membership in the 5th Street Gang, possession of the knife as protection in response to confrontations with a rival gang, and that he would use the knife to stick someone if he had a problem with that person, the testimony of the expert was sufficient to establish Andrew possessed the knife for the benefit of the gang.

We also conclude there was substantial evidence of the gangs primary activities. The prosecutions expert testified as to the gangs primary activities based on his own experience with the 5th Street gang, his conversations with gang members, colleagues, and other gang investigators, and police reports. The California Supreme Court has held a gangs primary activities may be proven by expert testimony or evidence of repeated and consistent commission of statutorily enumerated crimes. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; People v. Gardeley (1996) 14 Cal.4th 605, 620.)

Statement of Facts

Andrew became a ward of the juvenile court in 2004 when he was 14 years of age. On February 28, 2006, Andrew was involved in a verbal confrontation at Marie L. Hare Continuation High School. Andrew told the responding police officer he believed the other minor involved in the incident was a member of the Hard Times street gang, and he had been having problems with three other students he believed were Hard Times gang members. Garden Grove Police Officer Gary Elkin conducted a consensual patdown search of Andrew, and found a buck knife with a four-inch locking blade in Andrews right front pants pocket. Officer Elkin took Andrew into custody, and read him his rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Andrew waived his right to remain silent, and told Officer Elkin he was a member of the 5th Street gang and was carrying the knife for protection from rival gang members who had confronted him near his school. Officer Elkin asked Andrew what he would do with the knife if he had a problem with someone; Andrew replied he would use the knife to stick that person.

Andrew was charged with the possession of a weapon on school grounds. (Pen. Code,  626.10, subd. (a).) The petition alleged the offense was committed for the benefit of a criminal street gang. (Id.,  186.22, subd. (d).)

At an adjudication hearing, Garden Grove Police Officer Peter Vi testified as an expert witness on gangs. Officer Vi testified the 5th Street gang had existed since the 1970s. The gang had been involved in murders, shootings, assaults, auto thefts, vandalism, and possession of firearms by minors. Officer Vi testified, based on information he had reviewed and his own expertise, regarding two predicate offenses: (1) Alan A. was a 5th Street gang member on January 28, 2006, when he was in possession of a concealable firearm; and (2) Marcos Martinez was a 5th Street gang member on July 19, 2005, when he committed auto theft.

Officer Vi testified Andrew was an active member of the 5th Street gang on February 28, 2006, based on Officer Vis review of police records, field interview cards, and STEP notification cards, in which Andrew admitted his membership in the gang. (STEP is the acronym for the Street Terrorism Enforcement and Prevention Act, Penal Code section 186.20 et seq.) Officer Vi also testified that, in his opinion, someone who is an active member of a gang and carries a weapon for protection from rival gang members is in possession of that weapon for the benefit of the gang. Possession of a weapon increases an individuals status with fellow gang members, and helps defend that individuals gang affiliation against rival gangs. A gang member who possesses a knife would use it as protection, intimidation, and at times for offensive purposes. According to Officer Vi, the Hard Times gang was a rival of the 5th Street gang.

The juvenile court found the allegations in the petition to be true. At a disposition hearing, the court ordered Andrew to remain a ward of the court (Welf. & Inst. Code,  602), and ordered that Andrew be placed on probation and committed to a juvenile facility for 150 days, with 44 days credit for time served. Andrew timely appealed.

Discussion

I.

Standard of Review

Andrew challenges the sufficiency of the evidence. He contends the evidence was insufficient to show he possessed the knife on school grounds for the benefit of a gang, principally arguing the juvenile court should not have permitted the prosecutions expert witness on gangs to testify Andrew possessed the knife for the benefit of the gang.

Andrew also contends the evidence was insufficient to establish the primary activities of the 5th Street gang qualified it as a criminal street gang.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] 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 [citations], it is the jury, not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts 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. [Citations.] [Citation.] (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

II.

There was substantial evidence Andrew possessed the knife
for the benefit of the 5th Street gang.

Andrew argues the gang enhancement must be reversed because there was no substantial evidence he possessed the knife to benefit a gang. He contends the prosecutions expert witness on gangs was improperly allowed to testify as to Andrews specific intent in possessing the knife. Andrew also contends that if such testimony is excluded, as he says it must be, nothing remains to support a true finding on the gang enhancement.

The motivation for the commission of a particular crime and whether and how a crime was committed to benefit or promote a gang are proper subjects of testimony by an expert witness. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657, and cases cited therein.) An expert may not, however, go to the next level and testify that a specific individual had specific knowledge or possessed a specific intent. (Id. at p. 658.)

Having reviewed the experts testimony in this case, and compared it to the experts testimony in other relevant cases, we conclude the testimony here was proper and the trial court did not abuse its discretion by admitting it. Regarding whether the crime was committed to benefit or promote a gang, Officer Vi testified as follows:

Q So let me give you a hypothetical. [] Lets say you have an individual who is a participant of a gang or in association with a gang, who has said that he is a gang member under Miranda, who states again under Miranda that he has been confronted by other gang members and is carrying a knife for protection, in your opinion and based on those facts, would this particular offense be committed for the benefit of or in association with a criminal street gang? [] . . . []

The witness: Yes. [] . . . []

Q Whats the basis of your opinion?

A The basis of my opinion is to benefit the gang itself for several reasons. With the weapon that you mentioned in your hypothetical, he would use it as protection, intimidation, and at times for offensive purposes. All these reasons would give status and gain the respect by the individual gang members that you have given in the hypothetical. It would raiseelevate his status with fellow gang members. And it also defends his gang affiliation against rival gangs.

Q Assuming those same facts, do you have an opinion whether or not, under those same circumstances, whether the offense of possession of a knife on school grounds would be done to promote, further, or assist criminal conduct by 5th Street gang members?

A Yes.

Q What is that opinion?

A My opinion is thatmy opinion is the same as I mentioned earlier. Again, for protection, intimidation, offensive, and gain respect and status among fellow gang members.

Q And whats the basis of that opinion?

A I base my opinion on my past experience dealing with gang investigations, talking to gang members, and investigating gang members as victims and suspects in their criminal activities.

Q And by doing this crime, did it [promote], further, or assist the gang?

A Yes.

On redirect examination, the prosecutor went back to this issue.

Q Now, last time I asked a hypothetical, which I believe may have been phrased incorrectly, so Id like to do this once again. . . . [] Say a person out of school is caught with a knife on him, he says hes a gang member, and he says he has the knife for protection from rival gangs. [] Based on your experience, education, and background, can you explain to the court the significance of these facts? [] . . . []

The witness: Um, my opinion is that it would benefit the gang itself, like the last answer I gave last week. Again, it will benefit the individual gang member that you gave me a hypothetical. It [will] benefit him because he will use it the weapon [] for protection, intimidation, and assault rival gangs. All these action[s] would bring status and reputation among his fellow gang members. [] . . . []

Q And in the gang culture overall, based on your background, experience, and education, what would the action of possessing a knife on school grounds do for an individual that may be affiliated with a gang, associated to a gang, or actually claim to be a gang member?

A It [would] give him status among his gang and fellow gang members.

Q And wouldfor a person who claims to be or is affiliated with or in association with a ganggaining such status promote that gang?

A Yes.

In People v. Killebrew, supra, 103 Cal.App.4th 644, 658, the appellate court held the experts opinion on the defendants subjective intent had been erroneously admitted: Through the use of hypothetical questions, [the expert witness] testified that each of the individuals in the three cars (1) knew there was a gun in the Chevrolet and a gun in the Mazda, and (2) jointly possessed the gun with every other person in all three cars for their mutual protection. In other words, [the expert witness] testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action. [] [The expert witness]s testimony was the only evidence offered by the People to establish the elements of the crime. As such, it is the type of opinion that did nothing more than inform the jury how [the expert witness] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. [Citation.]

In People v. Olguin (1994) 31 Cal.App.4th 1355, the appellate court permitted testimony by an expert witness on gangs, but made clear the key distinction between testimony regarding what gangs and gang members objectively expect and what the defendant in the case subjectively expected. [The defendant]s final contention regarding this evidence is that [the expert] was allowed to express an opinion on [the defendant]s subjective expectation that violence would occur, and since a natural and probable consequences theory of aider and abettor culpability requires an objective analysis, the admission of this evidence was erroneous. While [the defendant]s legal contention might be correct [citation], the factual premise is invalid. Contrary to [the defendant]s claim, the trial judge precluded [the expert] from expressing an opinion on [the defendant]s state of mind. Before the jury, [the expert] testified as follows: Q. Now, do you have an opinion as to a gang members expectation of what will result from, lets say, a mutual yelling out of gang names or affiliations? [] A. Yes. [] Q. And what is that opinion? [] A. The gang member would expect a violent confrontation. Thus [the expert]s testimony focused on what gangs and gang members typically expect and not on [the defendant]s subjective expectation in this instance. We find no error in the admission of [the expert]s testimony. (Id. at p. 1371.)

Most recently, in a case that is factually similar to this one, the Fifth District reversed a true finding on a gang enhancement because it found insufficient evidence of a specific intent to promote, further, or assist in criminal conduct by the gang. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.) The minor was charged with, among other things, carrying a concealed dirk or dagger, with a gang enhancement. (Pen. Code,  12020, subd. (a)(4), 186.22, subd. (b)(1).) The minor told the arresting officer he had been attacked two days earlier and needed the knife for protection from the Southerners who felt the minor supported northern street gangs. (In re Frank S., supra, 141 Cal.App.4th at p. 1195.) During intake at the juvenile detention facility, the minor admitted he was an affiliate of the Nortenos gang. (Ibid.)

At the jurisdiction hearing, an expert witness on gangs testified the minor was a member of the Nortenos gang, and also testified the minors possession of a knife benefited or promoted that gang. (In re Frank S., supra, 141 Cal.App.4th at pp. 1195‑1196.) When asked her opinion of the minors purpose for the knife, the expert stated the minor possessed the knife to protect himself. She also stated a gang member would use the knife for protection from rival gang members and to assault rival gangs. When asked how the minors possession of the knife benefited the Nortenos, she responded it helps provide them protection should they be assaulted. (Ibid.) Based on this record, the appellate court concluded the expert had improperly testified as to the minors specific intent. (Id. at p. 1199.) The court therefore concluded, nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife. (Ibid.) Because the appellate court found no substantial evidence other than the experts testimony that the minor possessed the knife to benefit or promote the Nortenos gang, it reversed the true finding on the gang enhancement.

Here, by contrast, the hypotheticals were exactly the sort of which the court approved in People v. Killebrew, supra, 103 Cal.App.4th 644 (also decided by the Fifth District). Additionally, there was other circumstantial evidence of Andrews intent, namely, his admissions that he was a 5th Street gang member, he had problems with members of a rival gang, he was carrying the knife for protection from the rival gang members, and he would use the knife to stick a person with whom he had a problem. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931 [the defendants admissions of gang membership and statement he received permission from gang to sell drugs was circumstantial evidence of intent to sell drugs for the benefit of the gang].)

Officer Vi did not testify regarding Andrews specific intent. That issue was left for the trier of fact. The juvenile court did not abuse its discretion in admitting Officers Vis testimony. That testimony, coupled with Andrews own admission of his status as a member of the 5th Street gang, and his statement he was carrying the knife as protection from members of the Hard Times gang and would stick a person with whom he had a problem, constitutes substantial evidence supporting the juvenile courts finding that Andrews crime was committed to promote, further, or benefit a criminal street gang. We do not believe, on the facts of this case, In re Frank S., supra, 141 Cal.App.4th 1192, supports a different result.

III.

There was substantial evidence that the primary activities of the 5th Street gang qualified it as a criminal street gang under Penal Code section 186.22, subdivision (f).

A criminal street gang is any ongoing organization, association, or group of three or more persons . . . having as one of its primary activities the commission of one or more of the criminal acts enumerated in Penal Code section 186.22, subdivision (e), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. (Pen. Code,  186.22, subd. (f).) For purposes of this section, a pattern of criminal gang activity exists when gang members have, within a certain time frame, committed or attempted to commit two or more of specified criminal offenses . . . . [Citation.] (People v. Gardeley, supra, 14 Cal.4th at p. 610.) The gangs primary activity may be established either by expert testimony that the gang is known for committing one or more of the statutorily enumerated crimes, or by evidence of consistent and repeated commission of statutorily enumerated crimes. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; People v. Gardeley, supra, 14 Cal.4th at p. 620.)

Officer Vis opinion regarding the 5th Street gang was based on his own experience dealing with 5th Street gang members, his contact with gang members, his conversations with colleagues and Santa Ana Police Department gang unit investigators, and police reports. Officer Vi testified the 5th Street gangs primary activities were murders, shootings, assaults, auto thefts, minors in possession of firearms, and felony vandalism. He also identified the gangs claimed territory, its names, symbols, and colors, and testified it had been in existence since the 1970s and currently had 15 to 40 members.

Officer Vi testified regarding the two predicate offensesa minor in possession of a concealable firearm in January 2006, and an auto theft in July 2005. Additionally, he testified about two murders committed by 5th Street gang members in 1989 and 1992, two shooting incidents in 1999 and 2001, two acts of auto theft within the past decade, one incident of a minor in possession of a firearm in 1997, and three or four incidents of felony vandalism in 2005.

Andrew argues such testimony was insufficient to establish the primary activities of the 5th Street gang, given the low number of enumerated acts over the last decade. But the prosecution relied on Officer Vis expert testimony that the 5th Street gang was known for committing one or more of the statutorily enumerated crimes. This evidence was sufficient to sustain a true finding on the gang enhancement. The California Supreme Courts authority on this issue teaches that primary activities may be proven by expert testimonyor by evidence of consistent and repeated crimes, and this test was satisfied in this case. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; People v. Gardeley, supra, 14 Cal.4th at p. 620.)

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

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