P. v. Delgadillo

Filed 6/20/07 P. v. Delgadillo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Patrick O'Hara, Judge.

Hayes H. Gable III, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

By information filed July 8, 2004, in Tulare County Superior Court, appellant Christopher Rene Delgadillo was charged with a number of offenses arising out of events occurring on March 15, 2004. As finally amended, the information charged appellant with attempted premeditated murder of Victor S. (Pen. Code,^[1] 187, subd. (a), 664, subd. (a); count 1), conspiracy to commit robbery and felonious assault ( 182, subd. (a)(1); count 2), attempted robbery of Mark P. ( 211^[2]; count 3), attempted robbery of Trajinder S. ( 211; count 4), and assault with a deadly weapon and by means of force likely to produce great bodily injury on Victor S. ( 245, subd. (a)(1); count 5). As to each count, it was further alleged that the offense was committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(4); count 1; id., subd. (b)(1); counts 2-5).

Following a jury trial, appellant was convicted on counts 2, 3, and 4, and the gang enhancement allegations were found to be true. He was acquitted on counts 1 and 5.^[3] Appellant subsequently was sentenced to prison for three years on count 2 plus a consecutive five-year term for the gang enhancement; sentence on the remaining counts was stayed pursuant to section 654.

In this timely appeal, appellant raises various claims of error relative to the gang enhancements. For the reasons that follow, we will affirm.

FACTS

On March 15, 2004, Trajinder S. and Jake K. were walking from Trajinders house to the Visalia Mall when they passed a group of four males who had come running up from a side street. One asked for the time, which Trajinder read to them from his cell phone. The person then demanded the cell phone. When Trajinder did not give it to him, the person pulled out an airsoft BB gun that appeared, in the darkness, to be a real firearm. He asked Trajinder if he wanted to get blasted and pointed the gun at him. He then said, [D]o you think we are playing? Someone else struck Trajinder in the eye with a black pipe that felt like it was plastic, leaving a cut or bump near his temple. As Trajinder and Jake fled, someone threw a 40-ounce beer bottle at Trajinder.

Trajinder believed the assailants possibly were all Hispanic. All had buzz-cut hair. Trajinder believed the one with the gun was wearing a black baseball cap, while another was wearing a solid red shirt. Trajinder told police that the person who struck him was wearing a blue jersey. During the incident, the tallest of the group did nothing and just stood in the back. At trial, Trajinder tentatively identified Ramirez as the one wearing the red shirt. He also believed he recognized appellant as having been one of the group, although he was unable to identify anyone when shown a photographic lineup that included appellants picture shortly after the incident. Jake was unable to identify anyone at trial. He told the police that the speech of the person who spoke sounded slurred, and that the person sounded drunk. He also recalled seeing what he thought was a Bacardi bottle.

As Trajinder and Jake were fleeing, Victor S., Isaac M., and brothers Mark and Joseph P. were skateboarding at the loading docks behind the 99 Cent Store/Rite Aid nearby. They saw two males run toward two other males. They expected a fight, but instead the four just talked amongst themselves for several minutes.

As the skateboarders started to leave, the four males approached. One went up to Mark, who was walking behind his friends, tugged at his shirt, and demanded his wallet. This person, who was wearing a black hat, black pants, and a red shirt, was standing right next to Mark, pointing a knife toward Marks stomach. Mark said he did not have a wallet to give him and tried to retreat, but was hemmed against a wall by the three other males, who were closing in. One had what looked like a long pipe, while another had a beer bottle.

As the group closed in on Mark, Victor, who had been in front of the group of skateboarders, told them to get away from his friend, and struck the one in the red shirt in the head with his skateboard. At this point, the other assailants converged and Victor started wildly swinging his skateboard, and then, after losing the skateboard, fighting with two of them. One was the person with the knife. Joseph saw one of the assailants hitting Victor with something that looked like a pipe, but could have been the barrel of a BB gun. He saw the third individual punching Victor, while the fourth was standing away, watching. According to Mark, once the fight started, it was a three-on-one altercation at first, with one of the assailants less involved than the other three. Mark was not sure which one stayed out of it. Ultimately, however, Victor ended up fighting all four, all of whom were throwing sucker punches.

At first, Victor and the individual with the knife were both on their feet. As they moved toward a fence, however, Victors opponent went to the ground. Victor remained standing, and held him on the ground with his foot and started kicking him. Victor was fighting the others, as well. About two minutes after the one with the knife fell, one of the other three (according to Joseph, the one who had been standing off to the side) pulled a handgun and told Victor to get off his brother or he would blast him. Victor immediately started to retreat and responded along the lines of, get him off me then, as his opponent had gotten up and was holding onto Victors shirt and swinging at his face. Once the gun was pulled, only the person with the knife was still fighting Victor. They continued to fight for a while, and this person struck Victor with a closed fist. Mark did not see a knife at this point. Victor struggled to get the persons hands off his shirt. The shirt tore, and Victor broke away. Mark then saw the knife in the other mans hand.^[4] The person with the knife then came at Mark, asking if he wanted some, but Mark and Victor fled.

Victor was hobbling or limping and was holding his abdomen, between his stomach and his chest. When Mark asked if he was all right, Victor lifted up his shirt and said he needed help. He was bleeding profusely from the stomach. He collapsed onto a little bench inside Round Table Pizza.

Once in the emergency room, Victor was discovered to have suffered a stab wound to the right groin that, at least initially, appeared to be fairly superficial and did not seem to be of much significance. It was treated with Betadine, but never sutured. He also suffered a stab wound to the upper left quadrant of the abdomen, and underwent surgery. This was a puncture wound, as opposed to a slash. The parties stipulated that Victor suffered the personal infliction of great bodily injury, which caused him to become comatose due to brain injury, and that this injury was caused by the stabbing of March 14, 2004.

Isaac described one of the assailants as being taller than the others. All were bald. Joseph described the person who threatened to blast Victor as being taller than the others and wearing a white shirt. Mark described all four assailants as Hispanic and wearing baggy clothes. All wore their hair cut close to the scalp, except that one was bald. The person with the knife was a little bit shorter than the rest, who were all around the same height. In giving a description to police, Mark said that one of the group, who had no weapon but was only involved in fisticuffs with Victor, had a shaved head and was wearing a light gray, short-sleeved T-shirt and blue jeans. This person was not engaged at all in any type of fight after the person in the red shirt got up.^[5] Mark told police that the third person, who threatened to blast Victor, was wearing black shorts and a white T-shirt. Mark never got a really good look at the fourth person, whom he believed was armed with some type of club.

Based on Joseph P.s report that he had heard someone yell to get off his brother, and based on the described ages of the assailants, Visalia Police Detective Feller went to a local continuation high school to determine who was not in class the day after the incident, especially any brothers who attended school there together. As a result, Feller obtained Rodriguezs name and learned he lived approximately one-half to three-quarters of a mile from the crime scene. Feller also learned that Rodriguez and Ramirez were brothers, and that Ramirez resided at the same location.

Feller spoke to Rodriguez on the morning of March 17.^[6] Rodriguez had a cut or bruising about one eye, as well as scabs and bruises on his hands and elbows. Although initially saying he had been injured during a flag football game, Rodriguez eventually stated that he knew this was about the fight with the skateboarders behind Rite Aid. Rodriguez said he did assault and battery, and admitted being involved in a confrontation with Victor S. Rodriguez also stated that, just prior to encountering Victor and his companions, he had approached two males and demanded a cell phone and a wallet from one of them. When the victim was reluctant to turn over the items, Rodriguez struck one or both of them in the head with the barrel of a sawed-off BB rifle in an attempt to take the wallet and cell phone.

Rodriguez said that, after he was unable to catch the first two victims when they fled, he confronted the four skateboarders. He demanded a wallet, but was then confronted by Victor, who intervened and said to leave his friends alone. Rodriguez related that he struck Victor in the face with his fist, whereupon Victor struck him back, Rodriguez struck Victor in the head with the sawed-off BB rifle, and then Victor struck him again with a skateboard. At some point, Rodriguez was knocked to the ground, at which time he remembered he had a knife in his front pocket. It was a fold-back-type knife that would lock in place, but the locking mechanism did not work. Rodriguez removed it from his pocket and attempted to stab Victor. Rodriguez said he believed he had stabbed Victor because he saw blood on the knife, but he also said that the knife folded back on his thumb and cut it. Feller observed a small cut on Rodriguezs thumb that appeared to be recent and was consistent with a blade coming over and cutting the thumb.

Rodriguez related that he had buried the knife in the backyard of his residence. Feller and a probation officer conducted a search there and found the knife. They also found a hunting-style knife between the mattress and box springs in Ramirezs bedroom. Also found were a jersey-style shirt with the number 14 on the back and words Brown Pride across the top of the shoulders; two or three red T-shirts; a CD case with V4Town, TXC4, and XIV written on it; a laundry hamper containing red sweatpants, red flip-flops, and white and gray clothing; a number of items of red clothing, but no blue clothing other than blue jeans; a CD case with Norte on the cover and a star in the R; a pair of white Converse shoes with a red and white star on the side; a red beanie cap with Visalia embossed on it; a red bandanna; a San Francisco 49ers banner; and a photograph of Ramirez in which he was wearing a red T-shirt. In addition, tattooed on Rodriguez were four dots on his hand; four dots in a straight line on his chest; an X and a 4 on his chest; and the letters ESR on his leg, which Rodriguez said stood for East Side Reedley. Rodriguez told Feller that, at the time of the assaults, he had been wearing a red T-shirt, black Ben Davies pants, and some white and red Chucks, i.e., Converse Chuck Taylor-style shoes.

Visalia Police Investigator Grimes interviewed appellant on the afternoon of March 17. Initially, appellant said he was not at the location of the altercation, knew nothing about a stabbing, and had been home all that evening with his father and stepmother. He admitted, however, that he had been a Norteno gang member for approximately one year.

When Grimes informed appellant that there was a videotape from a nearby credit union that potentially identified him as having been at the scene that night, appellant briefly lost his composure. He then said that, on the day of the altercation, he went to the home of Rodriguez and Ramirez. He stayed there for a while and drank some beer, then left some time after dark and was walking around in the general area. He said he could remember using his fists and somebody swinging a skateboard, but that, because of the amount of alcohol he had consumed, he was kind of messed up and it was blurry.

Grimes observed a superficial cut on the back of appellants head. Appellant related that he had done it himself while shaving his head the day after the incident.

Grimes spoke to Tienda on the evening of March 17. Tienda, who was wearing a red belt, told Grimes that on March 15, he had been home with his mother most of the day, helping her clean the house for a family reunion. When she said there was nothing more with which he could help her, he retrieved a hunting knife that he generally carries and took it with him to the home of Rodriguez and Ramirez. There, he did some drinking, consuming, he assumed, two 40-ounce bottles of beer. He subsequently left to meet a young lady who worked at Rite Aid.

With respect to the actual incident, Tienda said he overheard a disagreement, saw someone swinging a skateboard, and used his knife, which he had been carrying in his back pocket. He started swinging the knife in a back-and-forth motion, then, somewhere in the middle of the altercation, stabbed the individual (Victor) in the upper left side. Tienda said he was trying to scare Victor, but accidentally cut him. Tienda said he felt his hand hit Victor a couple of times, and he saw blood on the knife. After, Victor and Mark took off running, and Tienda also left. At first, he said he threw the knife toward the Visalia Mall. He subsequently admitted he had returned to Rodriguezs and Ramirezs residence, where he had left the knife. Tienda admitted that, earlier that day, he was holding a BB rifle for a while, but he denied pointing it at anyone. He denied any involvement in, or knowledge of, any attempted robberies.

Grimes interviewed Ramirez on the evening of March 19. Ramirez related that on the evening of March 15, he had left his residence to pick up a snack for his girlfriend, who worked at Rite Aid. There were six 40-ounce bottles of Old English beer at the residence; Ramirez consumed about one and a half, and took about half of one with him. He said he was buzzing, but not drunk. He was aware of what was taking place.

Ramirez admitted being involved in an altercation behind Rite Aid. He said someone was swinging a skateboard, and he (Ramirez) was struck in the knee and went down.^[7] He then got up and struck the individual in the head with a plastic BB handgun, cracking the gun in half.^[8] About this time, the fight ended, the skateboarders went their way, and Ramirez returned to his residence. Ramirez denied any knowledge of how Tiendas knife ended up under his mattress.

Ramirez denied ever joining a gang, but admitted having associated with Norteno gang members for a couple of years.

Officer Mena, a member of the Visalia Police Departments Special Enforcement Unit and an expert on gangs, was familiar with a gang called Nortenos. This gang, which has different subcliques in different geographical areas, has over 300 members and associates in Visalia, and over 1,000 in Tulare County. At the time of trial, there were pockets of Norteno gang members in every area of Visalia, with the main subclique being North Side Visalia (NSV). In the Visalia area, Nortenos identify with the color red and the number 14, which may be signified by four dots, or by X-4 or 14, often in Roman numerals. The various subcliques usually work in association with each other, and the Surenos are their main rival gang. Surenos identify with the number 13, use X-3, and usually carry or wear blue. Surenos usually are from Southern California.

The principal activity of a lot of Norteno gangs is committing crimes. Mena had investigated crimes including manslaughter, carjacking, attempted murder, murder, and assault with a deadly weapon. The current trend is to use weapons, both for intimidation and assault. As the main premise of the gangs is fear and intimidation, the gang subculture uses people in a group, usually of three or more, and those people usually have weapons to further intimidate or assault the victim. Even a simulated handgun will be intimidating, since the victim often will not be able to tell whether it is real.

According to Mena, respect is one of the main premises of gang culture. He had talked to hundreds of gang members, and [i]t always comes down to respect, how much respect [a person has] within the gang. How many people respect them. Not only gang members, the community, itself. Are they feared on the street, just by word of mouth? Reputation is important in order for a gang to be feared. Gang members want to be known to other gang members as someone who will initiate things or back up the cause, but reputation encompasses not only fellow gang members, but also reputation among non-gang members and rival gang members. Gang members want to earn a reputation and enhance their respect through the doing of certain things. The amount of respect earned depends upon the conduct undertaken and against whom the conduct is undertaken. Although respect can be gained by committing acts against an average person, more respect would be earned by committing a crime against a Sureno. Nevertheless, Nortenos do not only target Surenos; the general population can also be their target, as a lot of time they commit crimes of opportunity.

In the gang culture, the more violent the person is, the more other gang members will look up to and follow that person. Thus, the more violent the person, the more respect he gets within that subculture. Having the reputation of being somebody who will use a weapon is like a status symbol, and news of who did what travels by word of mouth. Committing a robbery will increase the notoriety of an individual gang member by its effect on his reputation. If he is a person who is known to act in a violent way, he will gain higher status within the gangs. Gang members want people within the gang and the community at large to know what crime was committed by a particular group, and the individual members who commit the crime have the specific purpose of wanting to increase their notoriety as being ruthless. The more ruthless someone is, the more respect he has on the street. Gangs also seek to increase their membership since, the larger the gang, the more powerful it appears to be. If someone is thinking about joining a gang, that person will not want to join a gang with a wimpy reputation, but instead will want to join a gang that has a reputation for being tough and violent.

Being down for the cause means being for the Norteno gang being willing to fight for it, be injured for it, and to have [the] back of other gang members. In Menas experience, if a gang member is fighting one or two individuals and a group of gang members is present, that group will not wait to see who starts winning the fight before helping their comrade, but instead will initiate violence with the opponents. In other words, [i]f you are going to fight one of them, you are going to fight all of them. If they have weapons, they usually will use them or at least threaten with them.

Nortenos do not necessarily discuss with one another what type of actions they are going to undertake on a particular evening. Instead, although sometimes they discuss things, a lot is spontaneous, based on the situation they are in. If a group of individuals got together and armed themselves, they would be taking weapons for a purpose either for protection or for initiating some type of violent act. Knowing that everybody had some type of weapon would make each feel more secure and would be more intimidating, in case of an altercation. Additionally, gang members usually work in groups and only rarely have one-on-one encounters. It is common for gang violence to escalate if there is resistance; if the gang members have weapons and their target shows some type of resistance, they will use the weapons. Similarly, if they are fighting and are outnumbered or their opponents are using bottles, for example, they will use their weapon(s).

Mena was familiar with an incident in which, on November 16, 2002, Juan Guerrero went to a rival gang party. When a fight ensued, weapons such as bottles and sticks were produced. The situation escalated to Guerrero pulling a handgun and shooting three people. When Mena spoke to Guerrero, Guerrero admitted being a Norteno associate. Based on his other contacts with the police department and other officers, and the finding of numerous gang indicia at his residence, however, it was determined he was actually a gang member.

Mena reviewed documentation, such as probation records and police and probation contacts, for each defendant. With respect to Rodriguez, during a November 2001 contact with an officer, Rodriguez admitted being a Norteno gang member. He also had gang-related tattoos, including ESR-14. ESR stands for East Side Reedley, a Norteno gang. In January 2002, as he was being booked into juvenile hall, he told a probation officer that he was North Side or Norteno East Side Reedley. Booking admissions are significant because, while people on the street may not tell the truth about their gang affiliation, someone going into a custodial facility will not want to be housed with rival gang members. In February 2002, Rodriguez was contacted by an officer and admitted being North Side for approximately five years. In September 2002, Rodriguez was arrested and stated that he had belonged to East Side Reedley for approximately six years. In November 2002, Rodriguez was arrested for obstruction and, when booked into juvenile hall, claimed Norteno. In his statement about the current incident, Rodriguez said he was wearing a red shirt and belonged to East Side Reedley, showing that he was still down for the cause, i.e., backing up his fellow gang members.

In January 2002, there was a gang altercation at a high school in which appellant was in a fight on campus with a southern gang member. During a subsequent contact with the police departments youth development officer, appellant claimed Varrio Farmas Catorce (VFC), the Farmersville subclique of a Norteno gang. He was also wearing a red shirt at the time. Later in 2002, appellant was suspended for being under the influence of marijuana and for wearing a red belt with the VFC insignia. In June 2002, appellant told an officer that he had backed VFC for a year or two. He was wearing the red VFC belt, and had a red lighter. In October 2002, during a dispositional hearing, appellant said he was involved with a criminal street gang. In March 2003, appellant was arrested for another fight at the high school with a southern gang member. In April 2003, appellant got into a fight with someone over a stare, called mad-dog in the gangs. Appellant called his opponent a derogatory term for southern gang members that would only be used by a Norteno. In October 2003, appellant was involved in another fight with a Sureno. That same month, he was carrying a red rag when booked into juvenile hall. Nortenos frequently carry a red handkerchief or bandanna to signify a Norteno gang.

In January 2002, Ramirez told a probation officer during intake at juvenile hall that he claimed north affiliation. Ramirez was wearing a red belt at the time. In November 2002, a community safety officer working at a high school campus arrested Ramirez, who was wearing a red shirt, which is common attire for northern gang members. In January 2003, Ramirez told a probation officer that he claimed North Side, i.e., Norteno. In March 2003, he said he had been a member of North Side Visalia (NSV), a northern gang, for approximately one year. In April 2003, Ramirez was wearing white tennis shoes with red trim when booked into juvenile hall. On March 14, 2004, Ramirez was wearing a number 14 on a shirt that had Brown Pride printed on it. Brown Pride is associated with pride in being Hispanic, but the number 14 is associated with Nortenos.

With respect to the search conducted at Ramirezs residence in connection with the present incident and clothing and a CD case and cover that were found, red shirts and 14, XIV, X4, and Norte signify Norteno affiliation. A number of items had a five-point star on them, which is significant for Nortenos. There was quite a bit of red or black and red clothing, and Converse tennis shoes, which have a star on them. The only blue items of clothing were jeans, which are common and do not mean the wearer is not Norteno. In addition, Nortenos often associate with San Francisco 49ers.

In January 2002, Tienda told a probation officer that he claimed Norteno. In August 2003, he was wearing a red belt when booked into juvenile hall. The next day, when the probation officer contacted Tiendas mother, the mother expressed a concern about gang association and requested gang awareness counseling for Tienda. In September 2003, Tienda was wearing a red shirt draped over his shoulder when contacted by an officer, and claimed North Visa (Visalia), another reference to Norteno. In January 2004, Tienda told a probation officer during a dispositional hearing that his gang affiliation was Norteno/NSV (North Side Visalia), and that he had been affiliated with Norteno gangs for approximately six years. On March 14, 2004, a red belt belonging to Tienda was removed during a probation search, as Tienda was on probation with gang terms. On March 18, 2004, when being booked into juvenile hall, Tienda admitted a northern gang affiliation.

In Menas opinion, if an individual was a member of a group of four, all of whom were armed with a couple of knives, a pipe (actually, a BB gun with the stock removed), and a BB gun, and if one demanded someones cell phone and that person did not comply, pointing a firearm at that persons face would demonstrate being down for the cause. This would be part of the gang itself, to put fear and intimidation into the intended victim, and to try and help whatever the gang was attempting to do. The same would be true of striking the victim with a pipe, as with resistance comes violence.

Gang members frequently will trade weapons or pass one weapon along to another member. Sometimes this is an effort to avoid detection. They may also pass weapons back and forth between incidents, so that if one person stuck a gun in someones face and then the group went to rob someone else, another person may have broken the same gun over someone elses head. If someone used a weapon to stab someone and another person hid it, this again would demonstrate being down for the cause, as it still shows working as a group together for a common reason.

Mark P.s description of the defendants hemming him in against a wall shows they were working as a group to instill fear and intimidation. If someone came to the aid of the individual who was hemmed in and struck one of the assailants, that person would suffer retaliation either by being beaten up or having a weapon pulled on him. Again, the gang members work as a group. If something happens to one individual, the others go and assist him. As for one of the victims wearing a blue hat, gang members will notice the colors people are wearing. Surenos wear blue, and Mena had investigated crimes in which a non-gang member was attacked because he was wearing a certain color of attire.^[9] He noted, however, that at the time of events, Trajinder was wearing a red shirt with a black and white collar.

Based on all of the information he gathered and the facts of the current case, Mena formed the opinion that each of the defendants was a Norteno gang member on March 14, 2004. It was his further opinion that Nortenos were a street gang comprised of three or more members with the primary or principal activity being criminal activity. When posed hypothetical questions based on the evidence in this case, Mena further opined that the crimes charged were committed for the benefit of, at the direction of, or in association with the Norteno criminal street gang.^[10] Specifically with respect to the conduct being done in association with Norteno street gangs, gang members usually work together. When they come together and discuss things or go out as a group with weapons, they are working together as a group. What happened was a classical sense of overwhelming by sheer numbers, and fear and intimidation from both the number of people and the weapons that were brandished or used. Based on the facts of the hypothetical, it was Menas opinion that the crimes were committed to promote, further, or assist in criminal conduct by Norteno gang members. Mena conceded, however, that it was not unique to have two or more persons involved in a robbery, even if it was not gang-related, or for a person wanting to commit a robbery to carry a weapon.

When Nortenos commit crimes, they do not want Surenos getting credit for what they have done, and they generally want to make sure they are identified as those responsible. Based on Menas review of the materials concerning this case, he was not aware of any gang signs being flashed or of anything being said relating to gangs. This did not lead him to believe it was not a gang crime, however, as he had investigated gang crimes in which the perpetrators did nothing to identify themselves.

DISCUSSION

I

SUFFICIENCY OF THE EVIDENCE

Appellant contends the evidence is insufficient to support the jurys true findings on the gang enhancement allegations ( 186.22, subd. (b)). The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is reasonable, credible, and of solid value. (People v.Johnson, supra, at p. 578.) 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.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.) Moreover, the principles apply to claims involving enhancements as well as substantive offenses (People v. Vy (2004) 122 Cal.App.4th 1209, 1224), and specifically to prosecutions under section 186.22, subdivision (b) (In re Jose P. (2003) 106 Cal.App.4th 458, 465-466).

Under subdivision (b) of section 186.22, any person who is convicted of a felony 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, is subject to a sentence enhancement. In addition to its other requirements, which are not at issue here, this provision requires proof of the existence of a criminal street gang. (In re Lincoln J. (1990) 223 Cal.App.3d 322, 330-331.)

A criminal street gang is defined 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 [subdivision (e) of section 186.22], 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).) A pattern of criminal gang activity means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more [enumerated] offenses, provided at least one of these offenses occurred after the effective date of this chapter [i.e., September 26, 1988] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons. (Id., subd. (e), italics added.) At the time of the events which gave rise to the charges in this case, the enumerated offenses included assault with a deadly weapon or by means of force likely to produce great bodily injury (id., subd. (e)(1)), robbery (id., subd. (e)(2)), and unlawful homicide or manslaughter (id., subd. (e)(3)).

Appellant says the pattern of criminal gang activity was inadequately proven because the prosecution failed to establish the requisite predicate offenses.^[11] He concedes that one of the offenses charged in this case can count as one of the two required predicate offenses, but says the prosecution has the burden of proving a second predicate offense occurring on a separate occasion within the three years before the charged offenses. Because Officer Menas testimony concerning the Juan Guerrero incident did not establish the date of that event or the extent to which Menas testimony was based on his personal knowledge, the argument runs, the second predicate offense was insufficiently proven. We do not know whether appellant has misread the law or misrepresented it, but he clearly is wrong when he says the prosecution must prove a second predicate offense occurring on a separate occasion. Regardless of the weight accorded Menas testimony, the evidence here was sufficient to establish the requisite predicate offenses.

In Gardeley, supra, 14 Cal.4th 605, the California Supreme Court held that the prosecution there had proven a pattern of criminal gang activity by presenting evidence of the charged offense and of one other offense committed on a prior occasion by one of the defendants fellow gang members. (Id. at p. 625.) In People v. Loeun (1997) 17 Cal.4th 1 (Loeun), the court addressed the question whether the requisite pattern could also be established by evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member.^[12] (Id. at p. 5, italics added.) The court concluded this was permissible (ibid.), stating: In Gardeley, not only were the predicate offenses committed on separate occasions, but they were also perpetrated by two different persons. The pertinent statutory language does not require proof, however, that the two or more predicate offenses must have been committed both on separate occasions and by different persons. Under the statute, the pattern of criminal gang activity can be established by proof of two or more predicate offenses committed on separate occasions, or by two or more persons. [Citation.] The Legislatures use of the disjunctive or in the language just quoted indicates an intent to designate alterative ways of satisfying the statutory requirements. [Citations.] This language allows the prosecution the choice of proving the requisite pattern of criminal gang activity by evidence of two or more predicate offenses committed on separate occasions or by evidence of such offenses committed by two or more persons on the same occasion.^[[13]] Therefore, when the prosecution chooses to establish the requisite pattern by evidence of two or more predicate offenses committed on a single occasion by two or more persons, it can, as here, rely on evidence of the defendants commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member. (Loeun, supra, at pp. 9-10.)^[14]

In Loeun, the court rejected a contention that due process compelled a construction of the statute requiring the prosecution to prove one predicate offense predating the crime charged. (Loeun, supra, 17 Cal.4th at p. 11.) In People v. Zermeno (1999) 21 Cal.4th 927, however, it clarified that Loeun involved two separate assaults by two different assailants, each one subject to criminal liability as a direct perpetrator, not merely as an aider and abettor. (People v.Zermeno, supra, 21 Cal.4th at p. 933.) Where, by contrast, one gang member is the actual perpetrator and the other is liable solely as an aider and abettor, the combined activity of the two constitutes but one offense. (Id. at pp. 931-932.)

The present case falls squarely within the holding of Loeun, even if we consider the offenses involving Victor S. and Mark P. as having occurred after the offenses involving Trajinder S., and thus as being unavailable as predicate offenses with respect to the gang enhancement appended to count 4, in which Trajinder was named as the victim. (See People v. Duran (2002) 97 Cal.App.4th 1448, 1458 [second charged robbery could not be used as predicate offense to prove gang enhancement alleged in connection with first charged robbery where robberies occurred two days apart; crimes occurring after charged offense cannot serve as predicate offenses to prove pattern of criminal gang activity].) With respect to the incident involving Trajinder, appellant and his codefendants were convicted of attempted robbery, a statutorily enumerated offense, and conspiracy to commit statutorily enumerated offenses. They were not liable for the attempted robbery merely as coconspirators, but were convicted of two substantive offenses. (Compare People v. Zermeno, supra, 21 Cal.4th at pp. 932-933.) We find it immaterial that the conspiracy count covered the totality of their criminal conduct that night, instead of being limited solely to that involving Trajinder.

Appellant ignores Loeun in his opening brief, then belatedly concedes the effect of its holding in his reply brief, while also stating his disagreement with it. Needless to say, we are bound by our Supreme Courts opinion therein. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

In light of the foregoing, we need not determine whether Menas testimony was insufficient to establish a separate predicate offense. We note, however, that the question is a close one. Proof of a predicate offense within the requisite time frame, but on an occasion prior to the charged offenses, often takes the form of documentary evidence (such as an abstract of judgment) showing that an individual committed a statutorily enumerated crime within the requisite time frame, coupled with expert testimony that said person was a member of the gang. It may also be accomplished, however, by testimony from someone with personal knowledge concerning the details of a particular offense, coupled with expert testimony that the participants were members of the gang. (See, e.g., Gardeley, supra, 14 Cal.4th at pp. 624-625; In re I.M. (2005) 125 Cal.App.4th 1195, 1206-1208; People v. Augborne (2002) 104 Cal.App.4th 362, 369-370; People v. Duran, supra, 97 Cal.App.4th at p. 1458.) It is not accomplished by evidence that is not specific concerning what offense was committed, when, and by whom. (In re Jose T. (1991) 230 Cal.App.3d 1455, 1462; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003; In re Leland D. (1990) 223 Cal.App.3d 251, 258-259.)

Here, Mena testified that, on what he thought was November 16, 2002, Juan Guerrero went to a rival gang party. When a fight ensued, weapons such as bottles and sticks came out. This escalated to Guerrero pulling a handgun and shooting three people at the party. Mena personally spoke to Guerrero, who said he was a Norteno associate. Mena further testified: [W]e did follow-up on his contacts with the police department and other officers and search warrants conducted at his residence, where we found numerous gang indicia that proved he was a gang member. Although he did tell me at one point that he was an associate gang member. A fair interpretation of Menas testimony is that it was based on his personal knowledge. The prosecutor could easily have clarified that point, however, as well as the date on which the shooting occurred, thereby removing any question in this regard.

Appellant also challenges the sufficiency of the evidence in another respect. To establish the gang enhancement under section 186.22, subdivision (b), the prosecution must prove that the crime for which the defendant was convicted had been committed for the benefit of, at the direction of, or in association with any criminal street gang, [and that it was committed] with the specific intent to promote, further, or assist in any criminal conduct by gang members. [Citations.] (Gardeley, supra, 14 Cal.4th at pp. 616-617.) Generally speaking, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs including the motivation for an individual members actions is permissible, and a jury may rely on such testimony to render a finding on the allegation. (People v. Ward (2005) 36 Cal.4th 186, 210; People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048; Gardeley, supra, 14 Cal.4th at p. 617; People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931; People v. Valdez (1997) 58 Cal.App.4th 494, 506; but see People v. Killebrew (2002) 103 Cal.App.4th 644, 651-652, 658.)

As shown by Officer Menas testimony in the present case, all four defendants were, by their own admissions, members of, or affiliated with, the Norteno gang or one of its subcliques, and had been for some time. Mena explained how gang members usually work in groups, support each other, and are down for the cause. He also explained how they individually gain respect and stature within the gang, and help bolster the gangs fearsome reputation in the community, by committing robbery, using weapons, and being violent. Such testimony was permissible. (See People v. Ferraez, supra, 112 Cal.App.4th at pp. 930-931.) Assuming it was not sufficient, standing alone, to sustain the enhancement finding (id. at p. 931), here it was coupled with testimony from victims of, and eyewitnesses to, the charged offenses, showing that all four defendants acted together to commit assaultive crimes; used their superior numbers in a manner calculated to intimidate their victims; and acted to support each other, both in committing the crimes themselves and in responding to resistance or actual attack.

Considering the expert testimony in conjunction with the remaining evidence (see People v. Gamez (1991) 235 Cal.App.3d 957, 978, disapproved on other grounds in Gardeley, supra, 14 Cal.4th at p. 624, fn. 10), jurors reasonably could have concluded that what took place here was more than merely four people, who happened to be gang members, committing crimes as a group on a frolic and detour unrelated to the gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Although there was no evidence of overt indications of gang affiliation or gang-related motives, such as the flashing of gang signs or everyone wearing red shirts, jurors reasonably could have determined that news of the defendants crimes would spread on the street by word of mouth, and that they would enhance their individual reputations within their gang, and their gangs reputation vis--vis rival gangs, even if the information did not become known to the community at large. Accordingly, jurors reasonably could have concluded both that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang, and that appellant (as well as the other defendants) had the specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22, subd. (b); see People v. Morales, supra, 112 Cal.App.4th at pp. 1197-1198; In re Ramon T. (1997) 57 Cal.App.4th 201, 207-208.)

Relying in large part on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), however, appellant argues that, in order to satisfy due process concerns, section 186.22, subdivision (b)(1) must be interpreted to require the specific intent to promote, further, or assist other criminal conduct by gang members, and there was insufficient evidence appellant possessed the requisite intent. We are not persuaded.

In Garcia, the defendant was convicted of robbery and the jury found true a gang enhancement allegation. As framed by the majority, the issue on appeal from a grant of habeas corpus relief was whether the evidence was sufficient to support the jurys finding of the required specific intent: that is, the intent to promote, further, or assist in other criminal activity of the gang apart from the robbery of conviction. (Garcia, supra, 395 F.3d at pp. 1100-1101, italics added.) In concluding the evidence was insufficient, the majority found nothing in the record that would support an inference that Garcia robbed Bojorquez with the specific intent to facilitate other criminal conduct by the E.M.F. The evidence indicates that Garcia was a gang member and that he robbed Bojorquez in an area known to be in the heart of the gangs turf. Detective Hernandez, the gang expert, testified that the gang was turf oriented, and he described three other robberies committed by E.M.F. members in El Monte during the few months prior to Garcias offense. But there is no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime. There is nothing on the record that connects the turf-oriented nature of the gang with the commission of robberies generally, or, more importantly, with the commission of this robbery in particular. There is no testimony that protection of turf enables any other kind of criminal activity of the gang. The experts testimony is singularly silent on what criminal activity of the gang was furthered or intended to be furthered by the robbery of Bojorquez. (Id. at p. 1103, fn. omitted.) The majority agreed with the magistrate, who had found nothing in the record which would support an inference that [Garcia] robbed Bojorquez in order to facilitate other gang related criminal operations within El Monte. (Ibid.)

The dissenting judge took issue with the majoritys interpretation of section 186.22, subdivision (b), and concluded the statute did not require proof that the crime of conviction was committed with the intent to further some other specifically identified crime or category of crime . (Garcia, supra, 395 F.3d at p. 1105 (dis. opn. of Wallace, J.).) He also concluded that the evidence gave rise to a reasonable inference that, when Garcia asked Bojorquez where he was from and identified himself as an E.M.F. member, Garcia intended to intimidate Bojorquez and the owner of the store in which the incident occurred, so that Bojorquez would know not to intrude on E.M.F. turf in the future and so that the store owner would submit to the gangs dominance. The dissenting judge further opined that it could probably be concluded that this type of intimidation would facilitate the gangs control of the area and make it easier to commit crimes there in the future. (Id. at pp. 1106-1107.)

As a lower federal court decision, Garcia is not binding on this court. (See People v. Hoag (2000) 83 Cal.App.4th 1198, 1205.) Moreover, the majority opinion is not persuasive. In our view, it misinterprets the California statute, which, by its plain and unambiguous language, requires a showing of specific intent to promote, further, or assist in any criminal conduct by gang members (italics added), rather than other such criminal conduct. (People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19; see People v. Morales, supra, 112 Cal.App.4th at p. 1198.) There is no requirement in section 186.22, subdivision (b), that the defendants intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense defendant commits. To the contrary, the specific intent required by the statute is to promote, further, or assist in any criminal conduct by gang members. [Citation.] Therefore, defendants own criminal [conduct] qualified as the gang-related criminal activity. No further evidence on this element was necessary. (People v.Hill, supra, at p. 774.)

We reject the notion that interpreting the statute in this manner somehow runs afoul of constitutional requirements of due process and freedom of association. As the California Supreme Court has said, albeit in context of the pattern of criminal gang activity requirement: The analogy that defendant draws between statutes that infringe on protected associational rights and Californias STEP Act [which includes section 186.22] is inapt because the STEP Act does not criminalize group membership. As we explained in People v.Gardeley, supra, 14 Cal.4th 605, 623-624, the STEP Act punishes conduct, not association. 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.] (Gardeley, supra, 14 Cal.4th at pp. 623-624.) 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. (Loeun, supra, 17 Cal.4th at p. 11.)

Appellants contention fails for the same reason.

II

INEFFECTIVE ASSISTANCE OF COUNSEL

As previously described, each defendant, none of whom testified at trial, made a statement to police. The statements were redacted so as not to refer to any other defendant, and jurors were instructed that each defendants statement could not be used against the other defendants.

During the course of his testimony, Detective Feller described for the jury photographs taken inside the Rodriguez-Ramirez residence. One photograph depicted a pair of white Converse shoes with a red and white star on the side. The shoes were in a closet, along with red flip-flops and red sweatpants. On cross-examination, appellants attorney elicited that Rodriguez had told Feller he was wearing a red T-shirt, black Ben Davies pants, and some white and red Chucks, which were the Converse Chuck Taylor-style shoes. Later, the prosecutor questioned Officer Mena on the significance, in terms of his opinion with respect to gang affiliation, of items found during the search of the residence. According to Mena, many of the items found were significant for Nortenos, and he formed his opinion based not on one particular thing, but on a combination of everything. With respect to a CD cover bearing a five-point star, Mena stated that the star was significant for Nortenos and was tattooed and/or written on different items. In viewing the photograph of the items in the closet, Mena noted the numerous red shirts and red sweatshirts, as well as white tennis shoes, again, with Converse. Converse has the star on it. Again, they associate with that.

Appellant now contends trial counsels performance was deficient because he elicited Rodriguezs statement about what kind of shoes he was wearing at the time of the incident. Appellant says the statement, while relevant to the gang enhancement allegations, violated appellants confrontation rights under Bruton, supra, 391 U.S. 123 and its progeny, and Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Appellant says he was prejudiced by counsels error because, had counsel not elicited that one fact, jurors might well have concluded there was insufficient evidence to support the gang enhancement. We disagree.

Briefly stated, the burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, a defendant must show that counsel (1) performed at a level below an objective standard of reasonableness under prevailing professional norms; and thereby (2) subjected the defense to prejudice, i.e., in the absence of counsels failings a more favorable outcome was reasonably probable. (People v. Hamilton (1988) 45 Cal.3d 351, 377.)

In general, reviewing courts defer to trial counsels tactical decisions in assessing a claim of ineffective assistance, and the burden rests on the defendant to show that counsels conduct falls outside the wide range of competent representation. [Citations.] In order to prevail on such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. [Citations.] (People v. Ray (1996) 13 Cal.4th 313, 349.) In this regard, the question is not whether Rodriguezs statement was otherwise admissible, but whether counsels performance in eliciting it was deficient. Here, it appears defense counsel sought, in light of the varying descriptions and lack of solid identifications testified to by the victims, to clarify that it was Rodriguez, and not appellant, who was wearing the red T-shirt on the night in question. Although, as appellant now suggests, counsel could have framed the question so as not to elicit information about the Converse shoes, we are not certain he could have anticipated Menas subsequent testimony concerning the significance of the star on those shoes. Since the record does not preclude a satisfactory explanation for counsels actions, we will not find counsel acted deficiently. (People v. Stewart (2004) 33 Cal.4th 425, 459; see People v. Bell (1989) 49 Cal.3d 502, 546.)

Moreover, we discern no prejudice. In arguing otherwise, appellant ignores virtually all of Menas testimony, despite the fact it most certainly constituted evidence with respect to the gang enhancement allegations. In addition, the statement in question was admissible against Rodriguez, and could have come in against him on direct examination. Jurors were instructed not to consider one defendants statement against the other defendants; we see no reason why they would have thought this instruction did not apply simply because someone other than the prosecutor or Rodriguezs attorney elicit