Filed 1/30/18 In re Joshua L. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. Gallo, Judge.

Holly Jackson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Joshua L. was the subject of a Welfare and Institutions Code section 602 petition. After a contested hearing, the juvenile court found true that Joshua committed felony assault with a deadly weapon, a violation of Penal Code[1] section 245, subdivision (a), two counts of misdemeanor battery in violation of section 242, and misdemeanor exhibition of a deadly weapon in violation of section 417, subdivision (a)(1).

In addition, the juvenile court found true the allegation that Joshua committed the assault for the benefit of a criminal street gang, as set forth in section 186.22, subdivision (b)(1)(C). In this appeal, Joshua challenges only the true finding on the section 186.22 gang enhancement. Specifically, he contends the gang expert was not qualified to testify about the Brown Pride Catela, a Norteño subset; there is insufficient evidence to establish a pattern of criminal activity by the gang as defined in section 186.22, subdivision (e); and there is insufficient evidence to establish the primary activities of the gang consisted of offenses enumerated in subdivision (e) of section 186.22. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Because Joshua challenges only the gang enhancement, we limit our recitation of facts to those relevant to the issues on appeal.

Joshua lived with his family in Tulare County. In an incident on August 15, 2016, Joshua’s mother called law enforcement. Joshua was on probation at the time. Tulare County Sheriff’s Deputy Javier Montoya responded to the call. Montoya testified part of Joshua’s terms of probation were that there was to be no “gang activity, indicia, or any clothing related to gang activity.” Montoya inspected Joshua’s bedroom and found the words “Colima,” “Raiders,” “fuck PO,” and “Nation” written on the walls. “Catela” was written on the closet wall.

Joshua was in a fight on a school bus with Ivan A. on August 25, 2016. When the bus stopped at a location to drop off students, Joshua had climbed onto the bus and approached Ivan, who was seated. Joshua tried to hit Ivan with a skateboard, but missed, and the skateboard fell to the floor. Joshua then began hitting Ivan with his fists. Joshua hit Ivan with his fists more than five times. After Joshua threw the first punch, Ivan fought back; the fight was in the aisle of the school bus. Video surveillance from the bus shows the fight.

Ivan testified he and Joshua had previously argued but not engaged in a physical fight. The reason for their arguments was that Joshua was “with the northerners” and Ivan “kick[s] it with the southerners.” Ivan did not recall hearing Joshua say anything or “throw” any gang signs; he also could not recall if Joshua was wearing red. At the hearing, Ivan testified he thought the fight was gang related because of “the people” Joshua was with; Ivan never mentioned this to law enforcement when interviewed after the fight.

In the fight on the bus, the bus driver tried to separate Joshua and Ivan. The bus driver saw Joshua approaching the bus on his skateboard; Joshua was alone. One of the interior mirrors on the bus was shattered during the fight. The bus driver heard Joshua yell “Catela” during the fight.

Deputy Christopher George, a school resource officer, testified he had contact with Joshua because of a fight at school. While investigating a fight Joshua was involved in on March 20, 2015, George saw Joshua’s backpack had “four dots, XIV, the S is crossed out on his backpack, and four lines.” The word “Catela” was written on the backpack. “Catela is short for Brown Pride Catela, a subset of the Norteno street gang in the … area.” In George’s experience, these markings indicated the person was involved with the northern street gang. Inside the backpack were a binder and notepads on which “four dots, Catela boys, XIV,” and “the huelga bird” were found. All of these symbols indicate “ties to the Norteno criminal street gang.”

Deputy Matthew Rascon, assigned to the Tulare area gang and narcotics enforcement team, testified as a gang expert. Rascon had been a peace officer since 2010 and had been assigned to the gang unit for a little over a year. He had received approximately 100 hours of training “dedicated to gangs.” Rascon was part of the Tulare County Gang Task Force. He had regular contact with gang members in his current assignment and previously while a patrol officer. Rascon was familiar with the organizational structure of gangs, the history of gangs in California, and how individuals became gang members.

Rascon testified there were 10 criteria commonly used to identify someone as a gang member; a person had to satisfy three of the criteria to be considered a gang member. Rascon was familiar with the local gangs operating in Tulare County and was primarily responsible for gang investigation and suppression, as well as probation and parole compliance checks.

Regarding the Norteño criminal street gang, Rascon testified gang members will “fly their colors,” generally red. Symbols for the Norteño gang included the huelga bird, crossing out the S on items, XIV, X-four, the number four, “norte,” and “just a big N.” Gang members might exhibit the gang symbols in graffiti or tattoos. According to Rascon, the Sureños identified with the color blue and the symbols X-three, Sur, and NK, which stands for Norteño Killer.

Rascon had qualified before as an expert on gangs for purposes of testifying; he had testified three times previously as a gang expert.

After this recitation of experience, training, and knowledge the People asked that Rascon be “declared an expert in the area of criminal street gangs.” No objection was raised and the trial court instructed the People to proceed with questioning, stating, if “there’s an objection, I’ll deal with it.”

Rascon testified the Norteño gang was affiliated with the La Nuestra Familia prison gang; Sureños were affiliated with La Eme prison gang. The current border between the two was Kern County. Because Tulare County is near the border dividing La Nuestra Familia and La Eme, there is a great deal of conflict between Norteños and Sureños in Tulare County.

Without objection, Rascon testified the Norteño gang had different subsets. “They take the traditions and the orders given to them by the more powerful Norteno gang members and want to create their own special group to get recognition and gain status within the Norteno gang.” Major subsets of the Norteño gang in Tulare County were the Brown Pride Catela, North Side Orosi, and East Side Orosi Norteño gangs. The subsets would associate with other Norteño subsets and Norteño gang members. Rascon testified the Brown Pride Catela subset had between 65 and 75 members.

When asked about the primary activity of the Norteño gang, defense counsel objected on the basis it called for a “legal conclusion.” The juvenile court overruled the objection. Rascon responded that the gang engaged in illegal drug sales, extortion, vehicle theft, assaults of rival gang members, assault with a deadly weapon, attempted murder, vandalism, graffiti, and “various other illegal activities.”

Rascon was asked if he had “ever been involved in the investigation of any of the crimes” he enumerated where they were committed by members of the Brown Pride Catela. Rascon was then asked if he was familiar with a specific case and a report of a gang fight involving Jose Diaz and Rosendo Perez. Defense counsel objected on the grounds of hearsay. The trial court overruled the objection, stating Rascon could testify to “what he was familiar with.”

Rascon did not work on that case, but spoke with the officers on the case and reviewed the file. Defense counsel objected based on hearsay. Rascon testified Diaz and Perez were Norteño gang members, belonging to local subsets of the Norteño gang, who were convicted of robbery pursuant to section 211 and a gang enhancement under section 186.22, subdivision (b)(1)(C). Certified copies of Perez’s and Diaz’s convictions from this incident were admitted into evidence without objection.

Defense counsel subsequently asserted a hearsay objection to “both of those predicate offenses.” The juvenile court overruled the objection, stating the certified copies of the convictions were a “business record of the court.”

Rascon next testified to a case of possession of a firearm by a felon involving Edward Moran. Again, Rascon did not work on this case but spoke to the detective on the case and reviewed the file. Moran was documented as belonging to the Brown Pride Catela subset of the Norteño gang. Moran was convicted of the possession offense along with a gang enhancement. A certified copy of the record of conviction was admitted over defense counsel’s hearsay objection.

The People asked Rascon if he was present in the courtroom during the testimony of Deputies Montoya and George, to which Rascon responded, “Yes.” When asked about the significance of George’s testimony, Rascon responded that in both instances, Joshua was involved in a fight with a documented Sureño gang associate and had Norteño gang symbols on his backpack. Defense counsel objected to this testimony as hearsay, but the juvenile court overruled the objection, noting Rascon was testifying about matters previously “testified to in court. Subject to cross-examine.” Over a hearsay objection, Rascon also found it significant Joshua had “different Norteno gang writings on the binders and other documents.”

When the People asked Rascon if he was in the courtroom during Montoya’s testimony, defense counsel again objected based on hearsay, and the objection was overruled. Asked about the significance of the incident testified to by Montoya, Rascon responded the “different gang graffiti throughout” Joshua’s bedroom, including the reference to Catela.

Rascon then was asked if Joshua met any of the criteria to determine gang affiliation and Rascon responded, “Yes.” When asked which criteria were met by Joshua, defense counsel objected based on foundation and hearsay; the objection was overruled. Rascon then identified five criteria met by Joshua identifying him as an active Norteño gang member from the Brown Pride Catela subset. Rascon testified his opinion on Joshua being a Norteño was based on prior testimony during the proceeding, contacts, and supporting reports he reviewed.

In response to a hypothetical question mirroring the facts of the school bus incident, Rascon opined the incident would promote or benefit a criminal street gang. Defense counsel objected to the question based on foundation and hearsay; the objection was overruled.

At the conclusion of testimony, the juvenile court found true the gang enhancement allegation.

At the disposition hearing, defense counsel asked that Joshua be placed on formal probation. The juvenile court stated Joshua was “fairly entrenched in the gangs based on all what your room looked like and your behaviors at school and whatnot.” The juvenile court refused to release Joshua on probation “to do what you’ve been doing” because that placed “the community in a great amount of danger.” Joshua was committed to the Tulare County Mid Term Program for a period of 365 days and pending placement, was detained in juvenile hall.

A notice of appeal was filed November 15, 2016.

DISCUSSION

Joshua challenges the true finding on the gang enhancement. He contends Rascon was not qualified to testify about the Brown Pride Catela gang, insufficient evidence established the gang’s pattern of criminal activity, and insufficient evidence established the gang’s primary activities.

Standard of Review

“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Albillar (2010) 51 Cal.4th 47, 59–60.) “We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.” (Id. at p. 60.) “Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict …, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (Albillar, supra, at p. 60.)

“Although we must ensure the evidence is reasonable, credible, and of solid value, … it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.” (People v. Jones (1990) 51 Cal.3d 294, 314.) “Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (Ibid.)

I. Expert Testimony

Joshua contends Rascon was not qualified to testify as an expert about the Brown Pride Catela gang. Specifically, Joshua asserts Rascon’s testimony “related to case-specific out-of-court statements” regarding the Brown Pride Catela and its connection to the Norteño gang and was inadmissible hearsay under People v. Sanchez (2016) 63 Cal.4th 665. He has forfeited this issue, and furthermore, it is without merit.

Defense counsel made several objections to portions of Rascon’s testimony based on a lack of foundation and/or hearsay. However, the defense never objected to Rascon qualifying and testifying as a gang expert. Furthermore, when Rascon testified specifically about his knowledge of the Brown Pride Catela gang, there was no objection from the defense to these questions. By not objecting to Rascon’s qualifications, or the questions about the Brown Pride Catela, Joshua has forfeited any challenge that Rascon was not qualified to testify as an expert on gangs, including the Brown Pride Catela subset of the Norteño gang. (People v. Miranda (2016) 2 Cal.App.5th 829, 837–838, citing People v. Bolin (1998) 18 Cal.4th 297, 321.)

A party offering expert testimony need not establish the witness’s qualifications absent an objection. (Evid. Code § 720; People v. Dowl (2013) 57 Cal.4th 1079, 1088.) Nevertheless, the People elicited testimony establishing Rascon’s qualifications as a gang expert. Rascon had been a peace officer for six years, he had been a member of the gang and narcotics enforcement team for about one year, he was a member of the Tulare County Gang Task Force, and he had approximately 100 hours of gang-related training. He had studied the history of criminal street gangs in California, how street gangs are organized, and how individuals become gang members.

Additionally, Rascon had spoken with around 50 or 60 Norteño gang members in Tulare County, personally investigated 25 to 30 crimes in which Norteños were suspects, and had testified as a gang expert in three prior criminal court cases. He had spoken with gang members who were registering pursuant to section 186.33. Rascon was responsible for the gang follow-up, suppression, and probation and parole compliance checks in several Tulare County areas and was familiar with the local gangs in those areas.

Rascon testified that a major Norteño subset in the area where Joshua lived was the Brown Pride Catela. The Brown Pride Catela numbered between 65 and 75 members. Rascon was familiar with Norteño and Brown Pride graffiti in the area. He knew the origins of the Brown Pride Catela subset. Rascon talked with other law enforcement officers about the Brown Pride Catela. He had personally been involved in investigating crimes committed by members of the Brown Pride Catela.

Rascon’s testimony on the Brown Pride Catela did not run afoul of People v. Sanchez, supra, 63 Cal.4th 665 because the Sanchez decision did not “call into question the propriety of an expert’s testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field.” (Id. at p. 685.) Moreover, an expert may rely upon hearsay in forming an opinion and may tell the trier of fact in general terms that he or she did so. (Ibid.) “There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception.” (Id. at p. 686.)

Rascon’s testimony about background information on local gangs, specifically Brown Pride Catela, and his personal knowledge and experience with the gang is admissible, even after Sanchez. Here, Rascon described his background, training, and sources of information on the Brown Pride Catela gang in general terms as permitted under Sanchez. (People v. Sanchez, supra, 63 Cal.4th at p. 686.)

To the extent Joshua is challenging Rascon’s case-specific testimony establishing a pattern of criminal activity and predicate offenses, we address those issues post.

II. Pattern of Criminal Activity and Primary Activities

Joshua contends Rascon’s testimony about the primary activities and pattern of criminal activity of the gang was insufficient as a matter of law to support a true finding on the gang enhancement. Specifically, he maintains the evidence fails to prove (1) the Brown Pride Catela gang engaged in a pattern of criminal activity, and (2) a primary activity of that gang was the commission of one or more offenses enumerated in section 186.22, subdivision (e). Joshua contends Rascon’s testimony was hearsay under People v. Sanchez and, therefore, legally insufficient to sustain the gang enhancement.[2]

A. Legal Principles

Section 186.22 proscribes the substantive offense of active participation in a criminal street gang, as set forth in subdivision (a), and includes enhancement provisions, which are found in subdivision (b). (People v. Elizalde (2015) 61 Cal.4th 523, 538–539.) The enhancement provisions apply when an offense is 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).) “Unlike the substantive offense, the enhancement does not require proof of participation in a gang. It is further distinguished from the substantive offense by applying only to gang-related offenses and by requiring the defendant to act with the specific intent to promote, further, or assist any criminal conduct by gang members.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130, fn. 5.)

The provisions of section 186.22 naturally require proof of the existence of a “criminal street gang.” (People v. Vasquez (2016) 247 Cal.App.4th 909, 922; People v. Prunty (2015) 62 Cal.4th 59, 72, fn. 3.) The statute defines this term as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f).)

“The phrase ‘primary activities,’ … implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.… [¶] Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony ….” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323–324, italics omitted.) In practice, the required showing is easily made. The prosecutor typically asks a gang expert about the activities of a particular gang, and the expert, relying on his or her training and experience, attests to knowing the gang’s primary activities include the commission of one or more of the offenses listed in section 186.22, subdivision (e). (See People v. Nguyen (2015) 61 Cal.4th 1015, 1068; Sengpadychith, supra, at p. 324.)

“A gang engages in a ‘pattern of criminal gang activity’ when its members participate in ‘two or more’ statutorily enumerated criminal offenses (the so-called ‘predicate offenses’) that are committed within a certain time frame and ‘on separate occasions, or by two or more persons.’” (People v. Zermeno (1999) 21 Cal.4th 927, 930.) Prosecutors may rely on evidence of the defendant’s commission of a currently charged offense to satisfy this requirement. (People v. Loeun (1997) 17 Cal.4th 1, 10; accord, People v. Tran (2011) 51 Cal.4th 1040, 1046.) It is enough to show that a predicate crime was committed; a conviction is unnecessary. (People v. Garcia (2014) 224 Cal.App.4th 519, 524.)

People v. Sanchez held gang experts cannot rely on hearsay information to establish case-specific information establishing a defendant’s gang membership or past gang-related offenses because it violates both the hearsay rule and the confrontation clause of the Sixth Amendment. “If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” (People v. Sanchez, supra, 63 Cal.4th at p. 686.) Thus, “a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford[[3]] limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term.” (Id. at p. 680.)

Testimonial statements are those “made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony.” (People v. Sanchez, supra, 63 Cal.4th at p. 689.) To be considered testimonial, “the statement must be made with some degree of formality or solemnity.” (People v. Dungo (2012) 55 Cal.4th 608, 619.) In contrast, nontestimonial statements are statements “whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.” (Sanchez, supra, at p. 689, see id. at pp. 691–694.) Where a gang expert relies upon, and relates as true, a testimonial statement, “the fact asserted as true [has] to be independently proven to satisfy the Sixth Amendment.” (Id. at p. 685.)

B. Pattern of Criminal Activity

To establish a pattern of criminal activity by the gang, the People must establish that two or more statutorily enumerated offenses, or predicate offenses, were committed by two or more gang members. (People v. Zermeno, supra, 21 Cal.4th at p. 930.) It is enough to show that a predicate crime was committed; a conviction is unnecessary. (People v. Garcia, supra, 224 Cal.App.4th at p. 524.)

Joshua seems to believe the offenses committed by Diaz, Perez, and Moran should not be used as predicate offenses in his case because Rascon “had no involvement in the predicate offenses,” Rascon “had no prior knowledge” about him, and Rascon’s testimony about the predicate offenses was hearsay.

Here, the People presented case-specific evidence of predicate offenses committed by Diaz, Perez, and Moran. Defense counsel objected to admission of this evidence on the grounds it constituted hearsay; the juvenile court overruled the objections. Joshua appears to contend on appeal that Rascon’s testimony on these predicate offenses constituted “hearsay recitations of information” and were “vague and unsupported by any reliable, personally gained information.” We disagree.

Rascon testified Diaz was a documented North Side Orosi gang member and Perez was a member of the East Side Dino Norteños. They both were convicted of robbery in violation of section 211, and a section 186.22, subdivision (b) gang enhancement. Although defense counsel objected to this testimony on the grounds of hearsay, Rascon had reviewed the case file and the People introduced into evidence certified copies of the record of conviction for both Diaz and Perez. The defense did not object to admission into evidence of the certified copies. Shortly after admission of the certified copies into evidence, defense counsel renewed a hearsay objection to these predicate offenses.

Rascon also testified to a crime committed by Edward Moran, a documented member of the Brown Pride Catela who was convicted of possession of a firearm by a felon. Defense counsel raised no objection to the questioning of Rascon regarding this offense, or Rascon’s answers. When the People moved admission of certified copies of the record of conviction for Moran into evidence, the defense raised a hearsay objection, which was overruled.

Under Sanchez, an expert cannot relate case-specific facts asserted in hearsay, “unless they are independently proven by competent evidence or are covered by a hearsay exception.” (People v. Sanchez, supra, 63 Cal.4th at p. 686.) The certified copies of the record of conviction admitted into evidence constitute documentary evidence establishing the commission of robbery by two Norteño gang members and possession of a firearm by a felon by the third Norteño gang member, who also were members of local subsets. Certified court records are admissible as an exception to the hearsay rule. (Evid. Code, §§ 1270, 1271, 1280.)

As the juvenile court noted when it overruled defense counsel’s objections to admission of the exhibits documenting the convictions of Diaz, Perez, and Moran, the certified documents were a “business record of the court.” Certified records of conviction are sufficient to establish the predicate offenses. (People v. Gardeley (1996) 14 Cal.4th 605, 624, disapproved on other grounds in People v. Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) The offenses of robbery and possession of a firearm by a felon are two of the enumerated offenses specified in section 186.22, subdivision (e). (§ 186.22, subd. (e)(2) & (31).)

Unlike the In re Leland D. (1990) 223 Cal.App.3d 251 and In re Nathaniel C. (1991) 228 Cal.App.3d 990 cases cited by Joshua, the People here produced evidence, in the form of certified records, establishing three specific gang members, Diaz, Perez, and Moran, had committed the requisite predicate offenses—robbery and possession of a firearm by a felon—thus satisfying the pattern of criminal activity element for the gang enhancement. This was not impermissible, nonspecific hearsay and arrest information. In addition to these offenses, Joshua’s charged offense also could support the pattern of criminal activity. (People v. Tran, supra, 51 Cal.4th at p. 1046.)

Joshua also contends the predicate offenses of Diaz, Perez, and Moran cannot be used because he had no personal involvement in these offenses. He has cited no authority for this proposition and there is no statutory requirement that the defendant be involved personally in the predicate offenses. The predicate offenses must have been committed by two or more persons, on separate occasions, and may include the charged offense. (§ 186.22, subds. (b)(1) & (e); People v. Ochoa (2017) 7 Cal.App.5th 575, 581.)

Joshua also seems to argue Rascon was required to be personally familiar with him in order to testify about the predicate offenses. Again, there is no citation to authority for this proposition. We are unaware of any statutory or case authority holding a gang expert must be personally familiar with the defendant. Rascon did not testify to Joshua’s prior contacts with law enforcement to which he had no personal knowledge in order to establish predicate offenses; Rascon testified to case-specific information about predicate offenses committed by Diaz, Perez, and Moran and admitted through an exception to the hearsay rule. (People v. Sanchez, supra, 63 Cal.4th at p. 684.)

Of Diaz, Perez, and Moran, only Moran was a documented member of the same subset as Joshua, the Brown Pride Catela. To the extent the People relied upon the crimes committed by Diaz, a member of the North Side Orosi, and Perez, a member of the East Side Dino Norteños, to establish the requisite predicate offenses, we address People v. Prunty and the connection between the Norteño gang subsets to support the pattern of criminal activity.

C. Gang Subsets

In People v. Prunty, supra, 62 Cal.4th 59, the California Supreme Court addressed “what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets.” (Id. at p. 67.) The defendant in that case self-identified as a “‘Northerner,’ or a Norteño gang member, and described his membership in the Detroit Boulevard Norteño ‘set.’” (Id. at p. 68.) The prosecution’s theory for a section 186.22 enhancement was the defendant had acted to benefit a larger Norteño gang entity comprising multiple “subsets.” (Prunty, at pp. 67-69.) To establish the existence of this “umbrella” organization, a gang expert testified to a pattern of criminal activity by members of different Norteño subsets in the Sacramento area. However, “[b]esides [the expert’s] testimony that these gang subsets referred to themselves as Norteños, the prosecution did not introduce specific evidence showing these subsets identified with a larger Norteño group. Nor did [the expert] testify that the Norteño subsets that committed the predicate offenses shared a connection with each other, or with any other Norteño-identified subset.” (Id. at p. 69.) Consequently, the gang enhancement was reversed for insufficient evidence.

“[W]here the prosecution’s case positing the existence of a single ‘criminal street gang’ … turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets.… [¶] Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same ‘group’ that meets the definition of section 186.22(f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22(b). But it is not enough … that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets’ conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group.” (People v. Prunty, supra, 62 Cal.4th at pp. 71–72, fn. omitted, italics added.)

Our analysis of whether the record demonstrates the required connection between Joshua’s subset of Brown Pride Catela and the Norteño gang and other subsets is guided by the following observations in Prunty. “Evidence—even indirect evidence—showing collaboration among subset members, long-term relationships among members of different subsets, use of the same ‘turf,’ behavior demonstrating a shared identity with one another or with a larger organization, and similar proof will show that individual subsets are part of a larger group ….” (People v. Prunty, supra, 62 Cal.4th at pp. 73–74.) “For instance, the evidence may show that members of different subsets have ‘work[ed] in concert to commit a crime’ [citation] or that members have strategized, formally or informally, to carry out their activities.” (Id. at p. 78, fn. omitted.) “Even evidence of more informal associations, such as proof that members of two gang subsets ‘hang out together’ and ‘back up each other,’ can help demonstrate that the subsets’ members have exchanged strategic information or otherwise taken part in the kinds of common activities that imply the existence of a genuinely shared venture.” (Ibid.) “In general, evidence that shows subset members have communicated, worked together, or share a relationship (however formal or informal) will permit the jury to infer that the subsets should be treated as a single street gang.” (Id. at pp. 78-79.)

Rascon testified the Norteño gang, including its subsets, identified with the color red, used the same symbols, and would spray graffiti and obtain tattoos showing their allegiance to the Norteño gang. He testified the various Norteño subsets take on the traditions, and take orders from, the “more powerful Norteno gang members” in order to “get recognition and gain status within the Norteno gang.” The members of the Norteño subsets associated with Norteños of other subsets. Not every Norteño member in Tulare County also identified with a subset.

All the Norteño subsets “pay homage” to the larger prison gang. The subsets are groups coming from “a certain area where the Norteno gang has control over, or is attempting to gain control over.” If an individual of any one of the subsets is incarcerated, they “all fall under the same command,” the Norteño command, in prison. Within Tulare County, the Norteño subsets would operate “in collaboration, communicate and work together in furtherance of the Norteno gang.”

Rascon was part of a large-scale wiretap operation in Tulare County, “geared at identifying and arresting Norteno gang members within different subsets throughout Tulare County.” From that operation, it was clear the Norteño subsets shared information and weapons with each other.

In the 1990’s in Tulare County, the Norteños and Sureños were in a physical altercation and the Brown Pride gang members assisted the Norteños. The Brown Pride was brought under the Norteño umbrella after that, and since that time, Norteños in the area where Joshua lives have been known as Brown Pride Catela.

The Norteño subsets are part of the Norteño hierarchical organization. The various Norteño subsets share the same “turf” and defend the same areas. The members of the various subsets are often in the same vicinity and act as a single organization or group. The various Norteño subsets have the same rivals, the Sureños.

Rascon’s testimony established collaboration among subset members in that they share information and weapons, display behavior demonstrating a shared identity with a larger organization—the Norteño gang, have informal associations among the various subsets; and use the same “turf,” all of which support a conclusion the subsets should be treated as a single street gang. (People v. Prunty, supra, 62 Cal.4th at pp. 73–74, 78–79.) Consequently, the predicate offenses committed by Diaz and Perez properly can be used to establish the gang enhancement against Joshua.

D. Primary Activities

Joshua contends there is insufficient evidence establishing the gang’s primary activities were the commission of enumerated offenses. He also addresses this issue in his introduction.

As noted previously, the required showing of a gang’s primary activities is easily made. The prosecutor typically asks a gang expert about the activities of a particular gang, and the expert, relying on his or her training and experience, attests to knowing the gang’s primary activities include the commission of one or more offenses listed in section 186.22, subdivision (e). (People v. Nguyen, supra, 61 Cal.4th at p. 1068; People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)

Joshua claims that “over vigorous and continuous hearsay objection,” Rascon testified to various signs and symbols used by Norteños and gave testimony about symbols found on Joshua’s backpack. The citation to the record in appellant’s brief, however, is not to any testimony of Rascon. This testimony came from Christopher George, the school resource officer, testifying about his personal observations of symbols on Joshua’s backpack and his knowledge and training as to what those symbols meant. Although Joshua claims this testimony was elicited in violation of Sanchez, he is incorrect. Testimony by George as to the meaning of the symbols based on his background and expertise is permissible under Sanchez. (People v. Sanchez, supra, 63 Cal.4th at p. 685.) George’s testimony about observing these symbols on Joshua’s backpack is not hearsay; he was a percipient witness testifying from personal knowledge.

We are unclear as to the point Joshua is attempting to make with this challenge to George’s testimony; Joshua has not challenged in this appeal that he is a gang member. To the extent he makes such a challenge in passing, we need not address this contention as the section 186.22, subdivision (b) enhancement does not require proof Joshua was a gang member in order to support a true finding. (People v. Rodriguez, supra, 55 Cal.4th at p. 1130 & fn. 5.)

Joshua next challenges Rascon’s testimony on enumerated offenses and the gang’s regular participation in those offenses on the grounds “[h]e did not explain the basis for his opinion.” When asked to list primary activities of the gang, the defense objected on the basis it called for a “legal conclusion”; no other basis was asserted in the trial court. The objection was overruled and Rascon articulated some of the enumerated offenses in section 186.22, subdivision (e). When asked, Rascon stated he, personally, had been involved in the investigation of enumerated offenses committed by members of the Brown Pride Catela. There was no objection to the question nor a motion to strike the answer.

As for Joshua’s claim that Rascon did not explain the basis of his opinion, the record does not support this contention. As addressed earlier in our discussion of his qualifications as an expert, Rascon testified he had spoken with around 50 or 60 Norteño gang members in Tulare County, he had personally investigated 25 to 30 crimes in which Norteños were suspects, and he had testified as a gang expert in three prior criminal court cases. He had spoken with gang members who were registering pursuant to section 186.33. Rascon was responsible for the gang follow-up, suppression, and probation and parole compliance checks for various Tulare County areas and he was familiar with the local gangs in those areas.

Rascon testified a major Norteño subset where Joshua lived was the Brown Pride Catela. The Brown Pride Catela numbered between 65 and 75 members. Rascon was familiar with Norteño and Brown Pride graffiti in the area. He knew the origins of the Brown Pride Catela subset. Rascon talked to other law enforcement officers about the Brown Pride Catela. He had personally been involved in investigating crimes committed by members of the Brown Pride Catela gang.

As discussed previously, there is a sufficient connection under People v. Prunty between the subsets such that the subsets and the Norteño gang should be considered a single gang. Rascon, who qualified as an expert on the Norteño gang and its Tulare County subsets, opined the Norteño gang’s primary activities included illegal drug sales, extortion, vehicle theft, assault of rival gang members, attempted murder, assault with a deadly weapon, vandalism, and robbery, and that gang members consistently and repeatedly committed these offenses. These offenses are included in the enumerated offenses listed in section 186.22, subdivision (e). As noted previously, the People also produced certified copies of three predicate offenses committed by members of the Norteño gang in Tulare County for which they were convicted.

In sum, Rascon testified to the basis for his opinion as to the gang’s primary activities: personal conversations with gang members, personal investigations of crimes where gang members were suspects, his work on the task force and in gang suppression in Tulare County, his research on gangs, and his review of reports written by other officers and his conversations with other law enforcement officers about Norteño gangs. The opinion of a gang expert as to the primary activities of a gang, when based upon conversations with gang members, personal investigations of crimes committed by gang members, and information from law enforcement agencies, has been found sufficient to establish the primary activities element. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)

Although Joshua apparently contends specifics on all the crimes should have been provided and not just the three predicate offenses, there is no requirement that be the case. Again, In re Nathaniel C. is distinguishable, as is In re Alexander L. (2007) 149 Cal.App.4th 605. In Nathaniel C., the expert testified only that the primary activity of the gang was “criminal.” (In re Nathaniel C., supra, 228 Cal.App.3d at p. 1004.) In the case of Alexander L., the expert testified he knew the gang had been involved in crimes, but testified the vast majority of gang-related crimes of which he was aware were graffiti crimes, not enumerated offenses set forth in section 182.22, subdivision (e). (In re Alexander L., supra, at pp. 611–612.)

E. Conclusion

There was substantial, admissible evidence, even under People v. Sanchez, establishing the primary activities of the gang and the pattern of criminal activity. Consequently, the evidence is sufficient to support the true finding on the gang enhancement.

DISPOSITION

The jurisdictional findings, including the true finding on the gang enhancement, and the disposition order are affirmed.