In re Gilbert T.

Filed 4/20/07 In re Gilbert T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

The juvenile court sustained allegations that minor Gilbert T. engaged in street terrorism (Pen. Code,  186.22, subd. (a); all further statutory references are to this code unless otherwise stated) and was a gang member carrying a loaded firearm ( 186.22, subd. (a), 12031, subd. (a)(2)(C)). Minors sole contention on appeal is that there was insufficient evidence the Townsend Street Gang, of which he was found to be a member, has as one of its primary activities one of the felonies enumerated in section 186.22, proving it is a criminal street gang.

Rudy Reynoso, an officer who witnessed the crimes and participated in the apprehension of minor, testified as a gang expert. His assignment at the time of minors arrest was with the major narcotic and gang case unit, with 95 to 98 percent of his cases involving gangs. Over the past five years before his current assignment he had made a minimum of 100 gang arrests. During his career as a police officer, which began in 1998, he has had extensive training in street gangs and substantial contact with gang members and their families. He has spoken to other officers in his own and other departments, and also the ATF and FBI.

Reynoso testified he is familiar with the Townsend Street Gang, which has been in existence since the 1980s; it is ongoing and at the time of trial had about 50 members. Reynoso has investigated numerous crimes the gang was involved in, arrested its members, and spoken to victims of those crimes. Based on his training and experience, he testified as to his knowledge about the gangs apparel, hand symbols, tattoos, graffiti, and rivals and allies, as well as those topics relating to gangs in general. Reynoso stated his expert opinion that the gangs primary activities were narcotics sales [and] weapons violations, the latter being homicides and assaults with deadly weapons.

Reynoso also testified about the two predicate offenses of other gang members occurring approximately a year prior, a minor possessing cocaine base for sale and another minor possessing a firearm, both active members of Townsend Street Gang.

On the night of the incident, Reynoso saw minor and knew him from prior arrests and contacts and contacts with family members. When minor was apprehended, he was found with a cell phone containing a screen saver displaying Townsend and was wearing Townsend Street Gang apparel. Minor previously had been served with a gang determination notice.

A necessary element of proof to sustain the judgment is that Townsend Street Gang had as one of its primary activities commission of at least one of the criminal acts set out in section 186.22, subdivision (e). Narcotics sales, homicides, and assaults with deadly weapons are enumerated crimes set out in the statute. ( 186.22, subd. (e)(1), (3) & (4).) Reynosos testimony as to these crimes is relevant, admissible evidence of the gangs primary activities.

In People v. Sengpadychith (2001) 26 Cal.4th 316, in discussing the primary activities requirement, the court stated that sufficient [evidence] might be expert testimony, as occurred in [People v.] Gardeley[ (1996)] 14 Cal.4th 605[, 620]. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on his personal investigations of hundreds of crimes committed by gang members, together with information from colleagues in his own police department and other law enforcement agencies. [Citation.] (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)

Similar evidence is present here. Reynosos uncontradicted testimony as to the primary activities alone suffice. Although it is not overwhelming, it is not contradicted and meets the test under the standard of review we employ. In evaluating a special circumstance finding for an insufficiency of the evidence claim, We review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Mayfield (1997) 14 Cal.4th 668, 790-791.)

There was additional evidence to support to the determination as well, including Reynosos numerous arrests of and conversations with Townsend Street Gang members, including minor, conversations with victims, and his knowledge of the two predicate crimes of narcotics possession and a firearm violation.

Minors claim there was no evidence when the primary activities had occurred conflicts with the record. His reliance on People v. Perez (2004) 118 Cal.App.4th 151 is ill-founded because the expert there never testified about the gangs primary activities. (Id. at p. 160.) The same was true in In re Alexander L. (Apr. 9, 2007 G036595) __ Cal.App.4th __ [2007 WL 1041431], where the expert never specifically testified about the primary activities of the gang. He merely stated he kn[e]w that the gang had been involved in certain crimes. . . .  He did not directly testify that criminal activities constituted [the gangs] primary activities. (Id. at p. __ [p. *3].)

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

MOORE, J.

FYBEL, J.

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