P. v. Tran

Filed 9/29/06 P. v. Tran CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.

Roger S. Hanson, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert Foster, Taylor Nguyen, and Kristen Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

Dan Duy Tran appeals from a judgment after a jury convicted him of conspiracy to commit first degree burglary, attempted first degree residential burglary, and street terrorism, and found true he committed the first two offenses for the benefit of a criminal street gang. Tran’s briefing is somewhat confusing, but we discern his arguments to be generally the following: he was denied his Sixth Amendment right to confront the witnesses against him, there were instructional errors, and there was evidentiary error. None of his contentions have merit, and we affirm the judgment.

FACTS

On February 11, 2004, Karen Dinh, who was pregnant, lived in a two-story home at 8371 Hazelwood in the City of Westminster with her husband, daughter, and brother. In the afternoon, Dinh was upstairs watching television with her daughter when she heard a “scratching sound.” She thought it was the wind, but then she heard “voices” coming from her backyard. She went to the window and looked down--she saw two Asian men standing near her sliding glass door. One of the men looked up, and Dinh saw his face.

Dinh went downstairs to investigate. When she walked downstairs, she saw a man who was wearing gloves trying to open the kitchen window. Dinh yelled at that man, and he ran to the neighbor’s house at 8381 Hazelwood. Dinh did not see where the man she had observed through the window went. Dinh called her brother and then the police.

Officers Richard Mize, James Mraz, and Dwight Moore of the City of Westminster Police Department responded to the call. Mize went into Dinh’s backyard and spoke with her. Dinh told Mize the man wearing the gloves jumped the cinder block wall and went into her neighbor’s backyard. Mize looked over the wall and saw “a male Asian in his late teens, early twenties,” sitting inside the house watching television. Mize asked Moore to interview the man to determine whether he had seen anyone running through his backyard. Mize asked Mraz to watch the neighbor’s backyard.

Moore knocked on the front door and Hien Ngo answered. Moore told Ngo he was investigating a burglary at his neighbors and asked whether he saw anyone in his backyard. Ngo told him he saw three people in his backyard and two of them were wearing hats: one a black hat and one a blue hat. He said the men were between five feet seven inches and five feet eight inches tall and they jumped the east wall of his backyard. Moore asked Ngo if he could walk through the house to the backyard to search for evidence. Ngo refused. Moore told Mize what Ngo said.

Mize and Moore went back to speak with Ngo. As they walked towards the front door, Ngo stood in the doorway partially blocking it. Moore told him someone had tried to break into his neighbor’s house and asked him if he could search his house for suspects. Ngo said, “no” because it was his father’s house and he did not feel he had the right to consent to the search. Ngo was unable to provide Mize with any information as to how to contact his parents and said, “there was no way [they] were going to be able to talk to his parents.” Meanwhile, Ngo’s sisters arrived at the house. With their cooperation, Ngo’s father consented to the search of his house.

Mize told Ngo his father consented to search the house, and Ngo became visibly nervous. Mize heard other officers outside the house shouting, “‘Get your hands on top of your head. Come downs the stairs.’” Two Asian men, later identified as David Vu and Tuyen Duc Bui, walked downstairs and exited the house.

Mraz was watching Ngo’s backyard when he saw a man, later identified as Dan Tran, try to climb out of an upstairs window. Mraz saw Tran’s head come through the window. Mraz “ordered [Tran] to get back in and surrender to police[.]” Mraz yelled to his fellow officers there was a suspect on the second floor. Officers entered the house and found Tran exiting an upstairs bedroom with his hands on top of his head.

Officer James Kingsmill conducted an “in-field show-up” with Dinh. Dinh looked at Vu, Bui, Tran, and Ngo for approximately 10 seconds. Dinh said she did not recognize Vu. Dinh identified Bui, who had a shaved head and was wearing a white

T-shirt and black pants, as the person she saw from her bedroom window. Dinh then identified Tran, who had straight black hair and was wearing a black T-shirt and baggy jeans, as the person she saw with Bui in her backyard. But then after moving to the next person she said, “‘Oh, well, wait a minute. This guy is wearing all black too. Now I’m not absolutely sure,’ about . . . Tran.

. . .

‘Now I’m not 100 percent sure about . . . Tran because . . . Bui is also wearing all black[.]’”[1]

After advising him of his Miranda[2] rights, Mize interviewed Ngo. Ngo stated he did not know Tran very well, but he called him “‘Monkey.’” Ngo said he was at home when Tran, Bui, and Vu arrived at his house. He said they discussed going to his neighbor’s house to rob it. Ngo denied participating in the discussion. Tran, Bui, and Vu walked out the back sliding door towards the cinder block wall, and he lost sight of them. Ngo stayed inside the house to make sure his younger siblings did not see what they were doing. Later, Tran, Bui, and Vu returned, and they told him there was a woman home and she screamed. They asked Ngo if they could stay there until it got dark and they would leave. Ngo admitted lying to Mize when questioned earlier to protect his friends.

An information charged Tran with conspiracy to commit first degree burglary (Pen. Code, §§ 182, subd. (a)(1), 459, 460, subd. (a)) (count 1),[3] attempted first degree residential burglary (§§ 664, 459, 460, subd. (a)) (count 2), and street terrorism (§ 186.22, subd. (a)) (count 4).[4] The information alleged Tran committed counts 1 and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)). Finally, the information alleged Tran suffered one prior strike conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and one prior serious felony conviction (§ 667, subd. (a)(1)).

At trial, the district attorney offered the testimony of Officer Matthew Edinger, a gang expert. After providing his relevant training and experience, Edinger testified the predominant gangs in Westminster were male Vietnamese street gangs. Edinger explained Vietnamese gangs are nonterritorial, mobile, and motivated by profit. Edinger stated he was familiar with “Nip Family” and “Nip Family Junior”--he had investigated them and interviewed their members. Edinger opined Nip Family was a criminal street gang as defined in section 186.22, subdivision (f). Edinger stated Tran admitted he was a member of Nip Family, and he opined Tran was an active participant in Nip Family on the day of the incident. Based on his multiple contacts with Ngo, Vu, and Bui, Edinger opined they were active participants in Nip Family Junior on that day. Based on a hypothetical mirroring the facts of the case, Edinger concluded Tran’s conduct promoted Nip Family criminal conduct. Additionally, he concluded Tran committed counts 1 and 2 to benefit and promote Nip Family.

The jury convicted Tran on all counts and found true he committed counts 1 and 2 for the benefit of a criminal street gang. In a bifurcated bench trial, the trial court found true the prior conviction allegations. The court sentenced Tran to a total prison term of 13 years as follows: the middle term of four years doubled to eight years on count 1 and a consecutive term of five years for the prior serious felony conviction.

DISCUSSION

I. Crawford v. Washington

Relying on Crawford v. Washington (2004) 541 U.S. 36 (Crawford), Tran argues the following: (1) the trial court erroneously admitted Mize’s testimony concerning Ngo’s postarrest statements in violation of his Sixth Amendment confrontation rights; (2) Evidence Code sections 1223, 1235, and 770 violated his Sixth Amendment confrontation rights; and (3) Edinger’s reliance on Ngo’s statements to form his opinion regarding gang culture violated his Sixth Amendment confrontation rights. None of his contentions have merit.

A. Ngo’s Postarrest Statements

Tran argues Mize’s testimony concerning Ngo’s postarrest statements implicating him in the burglary violated his Sixth Amendment confrontation rights. Specifically, Tran claims he was prevented from effectively cross-examining Ngo because Ngo’s testimony consisted largely of statements that he could not remember what he said to Mize. We conclude Tran was not denied his Sixth Amendment right to confront Ngo.[5]

The Sixth Amendment provides that in criminal prosecutions the defendant has the right to be confronted with the witnesses against him. (U.S. Const., art. VI.) The Sixth Amendment right to confrontation includes the right of cross-examination. (Pointer v. Texas (1965) 380 U.S. 400, 404.) In Crawford, the United States Supreme Court held that out-of-court statements that are testimonial in nature are inadmissible unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at pp. 51-52.) Testimonial statements include those made during a police interrogation. (Id. at p. 52.)

Here, the district attorney concedes Ngo’s statements were testimonial because they were made during a police interrogation with Mize. The Attorney General argues, however, that Tran’s right to confront the witnesses against him was not violated because Ngo appeared at trial for cross-examination. Tran contends that although Ngo appeared at trial, Ngo’s forgetfulness of the incident made him “unavailable” and prevented defense counsel from effectively cross-examining Ngo, and any questions by defense counsel concerning Ngo’s statements would have constituted ineffective assistance of counsel.[6] We agree with the Attorney General.

The confrontation clause of the Sixth Amendment “includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the [c]onfrontation [c]lause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination . . . .” ( Delaware v. Fensterer (1985) 474 U.S. 15, 21-22.) The confrontation clause guarantees only “‘”an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”’” (United States v. Owens (1988) 484 U.S. 554, 559.) “The weapons available to impugn the witness’[s] statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.” (Id. at p. 560.) A witness’s professed inability to recall statements to the police, although narrowing the practical scope of cross-examination, does not result in a violation of the Sixth Amendment confrontation clause. (People v. Perez (2000) 82 Cal.App.4th 760, 766.)

In Crawford, the Supreme Court stated: “[W]e reiterate that, when the declarant appears for cross-examination at trial, the [c]onfrontation [c]lause places no constraints at all on the use of his prior testimonial statements. (See California v. Green, [(1970)] 399 U.S. 149, 162 . . . .) . . . The [c]lause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” (Crawford, supra, 541 U.S. at p. 59, fn. 9.)

Here, Ngo appeared at trial, testified, and was subject to cross-examination. Although Ngo testified he could not remember what he said to Mize, this did not render him unavailable. Ngo was also subject to being recalled for further examination following Mize’s rebuttal testimony concerning Ngo’s postarrest statements. Defense counsel also had the opportunity to cross-examine Mize regarding Ngo’s statements. Nothing in the record suggests Ngo could not have been called as a defense witness. This is all the Sixth Amendment confrontation clause requires. We find no Sixth Amendment violation.

Finally, Tran contends the district attorney offered Ngo’s testimony knowing he would not answer or “knowing . . . [he] was going to commit perjury.” These contentions are not supported by the record. Therefore, admission of Mize’s testimony concerning Ngo’s postarrest statements were properly admitted and did not violate Tran’s Sixth Amendment confrontation rights pursuant to Crawford.

B. Evidence Code sections 1223, 1235, and 770

Tran asserts the trial court relied on Evidence Code sections 1223, 1235, and 770 to admit Mize’s testimony concerning Ngo’s statements in violation of Crawford. Unfortunately, he provides no reasoned analysis of this claim. As we explain above, admission of Mize’s testimony concerning Ngo’s statements did not violate Tran’s Sixth Amendment confrontation clause rights pursuant to Crawford.

Evidence Code sections 1223, 1235, and 770 do not violate a criminal defendant’s Sixth Amendment confrontation rights. (People v. Williams (1997)

16 Cal.4th 635, 682 [“admission of the statements under Evidence Code section 1223” does not violate constitutional confrontation rights]; People v. Brown (1995)

35 Cal.App.4th 1585, 1597 [“admission of prior inconsistent statements as substantive evidence[]” pursuant to “Evidence Code section 1235 does not violate . . . constitutional

. . . confrontation rights”]; People v. Levesque (1995) 35 Cal.App.4th 530, 545 [Evidence Code section 770 provides foundational requirements for admission of “inconsistent statements” and not independent basis for admission of extrinsic statements].)

In his reply brief, Tran raises a different statutory argument concerning Evidence Code section 1235. Because Tran did not raise this contention in his opening brief, we need not address it. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) Rather than finding the issue waived, however, we will address it on the merits.

Tran argues Evidence Code section 1235 was inapplicable because Ngo’s testimony he could not remember was not inconsistent with his earlier statements to Mize concerning Tran’s involvement in the burglary. The Attorney General in its respondent’s brief asserted Mize’s testimony concerning Ngo’s statements was admissible pursuant to Evidence Code section 1235, as prior inconsistent statements. Here, based on our review of the record, we conclude the trial court’s finding Ngo’s statements were evasive and, therefore, inconsistent was supported by substantial evidence.

A witness’s testimony will be found to be inconsistent where his statements are evasive, and we will uphold a trial court’s finding of inconsistency if supported by substantial evidence. (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.) After answering numerous personal questions and stating he remembered being arrested, Ngo repeatedly responded he could not remember the incident or what he said to Mize. The trial court acted well within its discretion in finding this evasive.

C. Expert’s Testimony

Tran asserts Edinger’s expert opinion testimony regarding a hypothetical based on Ngo’s out-of-court statements violated his Sixth Amendment confrontation clause rights pursuant to Crawford. Specifically, he claims that Edinger could rely on Ngo’s statements only if each statement in the hypothetical was proved beyond a reasonable doubt. We disagree.

It is clear, a gang expert’s testimony may be based on hearsay and hypothetical questions “rooted in facts shown by the evidence” of the case. (People v. Gardeley (1996) 14 Cal.4th 605, 617 -620 (Gardeley); Evid. Code, § 801, subd. (b).) Although Gardeley was decided before Crawford, subsequent California appellate authority has addressed claims similar to Tran’s post-Crawford.

In People v. Thomas (2005) 130 Cal.App.4th 1202, 1208-1210 (Thomas), the defendant, relying on Crawford, argued his Sixth Amendment right to confront witnesses was violated when the gang expert opined he was a gang member based on conversations the expert had with other gang members. The court explained it is well settled “in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay.” (Id. at p. 1209.) The court added, “‘Of course, because the culture and habits of gangs are matters which are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact” [citation], opinion testimony from a gang expert, subject to the limitations applicable to expert testimony generally, is proper. [Citation.] Such an expert--like other experts--may give opinion testimony that is based upon hearsay, including conversations with gang members as well as with the defendant. [Citations.] Such opinions may also be based upon the expert’s personal investigation of past crimes by gang members and information about gangs learned from the expert’s colleagues or from other law enforcement agencies. [Citations.]’” (Id. at pp. 1209-1210.) The court concluded, “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion. Crawford itself states that the confrontation clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’” (Id. at p. 1210.) Crawford does not require each assertion in a hypothetical to be proved beyond a reasonable doubt before an expert may rely on it to form his or her opinion.

Here, Edinger’s expert opinion testimony was in response to hypothetical questions “rooted in facts shown by the evidence” of the case, including Ngo’s hearsay statements. Edinger could properly rely on Ngo’s hearsay statements in forming his expert opinion on the hypothetical questions. Edinger was subject to thorough cross-examination regarding his expert opinion, and the trial court instructed the jury that it must give his testimony the weight it found his testimony deserved. We conclude there was no error in the admission of Edinger’s testimony.

II. Jury Instructions

Tran argues there were numerous jury instruction errors requiring his convictions be reversed. We will address each in turn.

A. CALJIC No. 2.90

Relying on In re Winship (1970) 397 U.S. 358 (Winship), Tran claims CALJIC No. 2.90, “Presumption Of Innocence--Reasonable Doubt--Burden Of Proof,” failed to satisfy the constitutional requirement the district attorney prove each element beyond a reasonable doubt. The Attorney General contends the current version of CALJIC No. 2.90 has been approved by the United States Supreme Court, California Supreme Court, and California appellate courts. We conclude the trial court properly instructed the jury with CALJIC No. 2.90.

In Winship, the Supreme Court stated, “Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the [d]ue [p]rocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (Winship, supra, 397 U.S. at p. 364.)

Section 1096 states: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: ‘It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’”

Section 1096a provides: “In charging a jury, the court may read to the jury [s]ection 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.” Additionally, if the trial court instructs the jury in language following section 1096, the court need not instruct the jury “that each element of the crime must be proved beyond a reasonable doubt.” (People v. Reed (1952) 38 Cal.2d 423, 430; People v. Orchard (1971) 17 Cal.App.3d 568, 577.)

Here, the trial court instructed the jury with CALJIC No. 2.90 as follows: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] guilt is satisfactorily shown, [he] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] guilty beyond a reasonable doubt.

Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” This instruction follows section 1096, and further instruction absent Tran’s request at trial was unnecessary.

Additionally, when determining whether there was instructional error, we look at the entire charge and not a particular instruction. (People v. Smithey (1999) 20 Cal.4th 936, 963-964 (Smithey).) Here, in addition to CALJIC No. 2.90, the trial court instructed the jury with CALJIC No. 2.01, “Sufficiency of Circumstantial Evidence--Generally,” explaining “each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt.” And, the court instructed the jury on the elements of conspiracy to commit first degree burglary, attempted first degree residential burglary, the substantive offense of street terrorism, and the street terrorism enhancement. We conclude, based on the entire charge, a reasonable jury would have concluded it had to find the district attorney established each element of the offenses and enhancement beyond a reasonable doubt.

Finally, Tran responds the Attorney General’s reliance on those cases is misplaced because the Judicial Council of California Task Force on Criminal Jury Instructions’ new instruction on reasonable doubt, Judicial Council of California Jury Instructions (2006), CALCRIM No. 103, “Reasonable Doubt” states the district attorney must “prove each element of a crime [or allegation] beyond a reasonable doubt.” Not so.

The Task Force’s “charge was to write instructions that are both legally accurate and understandable to the average juror.”[7] The Task Force was not vested with the authority to render invalid prior jury instruction, nor was it purporting to do so. It is for the California Supreme Court and California appellate courts to make such a determination. We see no infirmity in CALJIC No. 2.90.

B. CALJIC Nos. 2.52 and 2.71

Relying on People v. Anjell (1979) 100 Cal.App.3d 189 (Anjell), Tran contends the trial court erroneously instructed the jury with CALJIC No. 2.52, “Flight After Crime.“ Alternatively, Tran claims if the instruction was proper, the court should have instructed the jury it had to find “flight” occurred beyond a reasonable doubt and it should have immediately followed CALJIC No. 2.52 with CALJIC No. 2.71, “Admission--Defined.” None of his contentions have merit.

The Attorney General notes Tran withdrew his objection to

CALJIC No. 2.52 at trial, and therefore, he waived appellate review of this issue. We agree with the Attorney General (People v. Jackson (1996) 13 Cal.4th 1164, 1223), but we will address the substantive merits of Tran’s complaint.

In Anjell, supra, 100 Cal.App.3d at pages 199-202, the court held an instruction on flight was inappropriate where identity was a contested issue and there was no evidence the defendant had fled. However, Anjell has since been overruled. In People v. Mason (1991) 52 Cal.3d 909, the California Supreme Court disapproved of Anjell. The court stated: “If there is evidence identifying the person who fled as the defendant, and if such evidence ‘is relied upon as tending to show guilt,’ then it is proper to instruct on flight. [Citation.] ‘The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury’s need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.’” (Id. at p. 943.)

Here, the trial court instructed the jury with CALJIC No. 2.52 as follows: “The [flight] [attempted flight] of a person [immediately] after the commission of a crime, or after [he] is accused of a crime, is not sufficient in itself to establish [his] guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilt or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”

Mize testified Ngo told him Tran was one of the men that attempted to burglarize Dinh’s home. Additionally, Mraz testified he saw Tran’s head come through an upstairs window as he tried to climb out of the window. During closing argument, the district attorney relied on evidence of flight to show consciousness of guilt. Therefore, the trial court properly instructed the jury with CALJIC No. 2.52.

As to Tran’s claim the jury had to find evidence of flight beyond a reasonable doubt, we disagree. Flight was not an element of any of the offenses with which Tran was charged. Evidence of flight was relevant as circumstantial evidence of Tran’s guilt. And, CALJIC No. 2.52 made clear to the jury evidence of flight was insufficient by itself to establish guilt of the offenses.

Finally, Tran claims that if CALJIC No. 2.52 was proper, the trial court should have “immediately couple[d] with, and follow[ed] with, CALJIC [No.] 2.71.”

Again, we disagree. Although not immediately following CALJIC No. 2.52, the trial court did instruct the jury with CALJIC No. 2.71 as follows: “An admission is a statement made by [the] defendant which does not by itself acknowledge [his] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] guilt when considered with the rest of the evidence.

You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part.

[Evidence of an oral admission of [the] defendant not made in court should be viewed with caution].” Also, the court instructed the jury it had to “consider the instructions as a whole and each in light of all the others.” Accordingly, we conclude his argument is unpersuasive.

While flight may “‘constitute [] an implied admission[]’” (People v. Mulqueen (1970) 9 Cal.App.3d 532, 543), CALJIC No. 2.71 defines an admission as “a statement made by [a] . . . defendant.” Flight is not a statement, written or oral, and CALJIC No. 2.71 has no application where the act, an admission so called, “‘derive[s] from the fact of . . . flight.’” (People v. Mills (1978) 81 Cal.App.3d 171, 182.) In any event, the trial court instructed the jury with CALJIC No. 2.71, although not immediately after instructing the jury with CALJIC No. 2.52.

C. CALJIC No. 2.01

Tran argues the following jury instructions violated CALJIC No. 2.01, “Sufficiency Of Circumstantial Evidence--Generally,” because they did not require the district attorney to prove each fact beyond a reasonable doubt: CALJIC Nos. 2.02, “Sufficiency Of Circumstantial Evidence To Prove Specific Intent Or Mental State,” 2.03, “Consciousness Of Guilt--Falsehood,” 2.50, “Evidence Of Other Crimes,” 2.50.1, “Evidence Of Other Crimes By The Defendant Proved By A Preponderance Of The Evidence,“ 2.52, “Flight After Crime,” 2.71.7, “Pre-Offense Statement By Defendant,” 2.72, “Corpus Delicti Must Be Proved Independent Of Admission Or Confession,” 3.11, “Testimony Of Accomplice Must Be Corroborated,” 3.12, “Sufficiency Of Evidence To Corroborate An Accomplice,” 3.31, “Concurrence Of Act And Specific Intent,” 6.00, “Attempt--Defined,” 6.10, “Conspiracy And Overt Act--Defined,” and 6.24, “Determination Of Admissibility Of Co-Conspirator’s Statements.” The Attorney General contends Tran waived appellate review of these issues because Tran did not object to or request modifications of any of the instructions. Again, we agree with the Attorney General (People v. Cole (2004) 33 Cal.4th 1158, 1211), but we will address the substantive merits of Tran’s complaint.

The trial court instructed the jury with CALJIC No. 2.01 as follows:

“[A] finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.

Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.” (Italics added.)

Essentially, Tran’s complaint is the above-mentioned instructions lowered the district attorney’s burden of proof because they either required a standard of proof other than beyond a reasonable doubt or were vague as to what standard to apply and left it to the jury to decide. Tran misunderstands the district attorney’s burden. “The prosecution bears the burden of proving all elements of the offense charged [citations], and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements . . . .” (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 (Sullivan).)

A number of the jury instructions Tran complains of have been upheld based on similar constitutional challenges. (People v. Dunkle (2005) 36 Cal.4th 861, 913 [CALJIC No. 2.02]; People v. Reliford (2003) 29 Cal.4th 1007, 1012-1017

[CALJIC No. 2.50.01]; People v. Mendoza (2000) 24 Cal.4th 130, 179-181

[CALJIC No. 2.52]; People v. Cain (1995) 10 Cal.4th 1, 34 [CALJIC No. 2.03].) We need not comment further.

We have discussed CALJIC No. 2.52 supra. No additional discussion is necessary.

With respect to the remainder of the jury instructions to which Tran objects, we find no error. Tran urges us to dissect the instructions and view each word or phrase in a vacuum, but we decline to do so. As we explain above, we look at the entire charge and not a particular instruction when determining whether there was instructional error. (Smithey, supra, 20 Cal.4th at pp. 963-964.) The trial court instructed the jury the district attorney had the burden of proving Tran guilty beyond a reasonable doubt. (CALJIC No. 2.90.) And, the court instructed the jury “each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt.” (CALJIC No. 2.01.) Therefore, we conclude Tran’s contention the above-mentioned jury instructions conflicted with CALJIC No. 2.01 is without merit.

III. Gang Evidence

Tran contends the trial court erroneously admitted Edinger’s expert testimony concerning criminal street gangs. The basis for Tran’s claim of error is difficult to discern from his rambling introduction and disjointed discussion of the issue. But, we conclude his objections are lack of relevance, improper expert testimony, and a hybrid argument relating to burden of proof and sufficiency of the evidence.

Evidence Code section 350 states: “No evidence is admissible except relevant evidence.” Evidence Code section 351 states: “Except as otherwise provided by statute, all relevant evidence is admissible.” Relevant evidence means “evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Although “‘there is no universal test of relevancy, the general rule in criminal cases [is] whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution[.]’” (People v. Freeman (1994) 8 Cal.4th 450, 491.) Here, Edinger’s expert testimony concerning criminal street gangs was relevant to prove count 4, the substantive offense of street terrorism, and the street terrorism enhancements alleged as to counts 1 and 2.

An expert witness may offer opinion testimony if the subject “is sufficiently beyond common experience that” it would assist the jury. (Evid. Code, § 801, subd. (a).) It is well established, “[t]he subject matter of the culture and habits of criminal street gangs[]” is the proper subject of expert testimony. (Gardeley, supra, 14 Cal.4th at p. 617.) Additionally, “an expert may render opinion testimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth.’ [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence. . . . [Citations.]” (Id. at p. 618.) Expert testimony is admissible even though it encompasses “the ultimate issue” in the case. (Evid. Code, § 805; People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew).)

Here, Edinger’s expert testimony related to the habits and customs of male Vietnamese gangs and specifically Nip Family and Nip Family Junior. This subject matter is sufficiently beyond common experience to render it admissible. And, although an expert witness may not testify as to the defendant’s “subjective knowledge and intent” (Killebrew, supra, 103 Cal.App.4th at pp. 651-652), Tran does not cite to any specific instance, and we could find none, where Edinger specifically testified as to Tran’s “subjective knowledge and intent[.]” The hypothetical questions propounded to Edinger at trial were permissible because they were sufficiently based on evidence presented at trial.

“‘The testimony of one witness is sufficient to [sustain] a [guilty] verdict.’” (People v. Barranday (1971) 20 Cal.App.3d 16, 22; CALJIC No. 2.27 [“Sufficiency Of Testimony Of One Witness”].) There is no dispute the district attorney bears the burden of proving all elements of the offense charged “‘beyond a reasonable doubt’” of the facts necessary to establish each of those elements. (Sullivan, supra, 508 U.S. at pp. 277-278.) Here, we have addressed Tran’s claim the jury was erroneously instructed. The trial court properly instructed the jury concerning the district attorney’s burden of proof at trial. Edinger’s expert testimony based on the evidence presented at trial was sufficient evidence to prove beyond a reasonable doubt each element of the substantive offense of street terrorism and the street terrorism enhancements.

DISPOSITION

The judgment is affirmed.

O’LEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

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[1] The district attorney referred to the second man who was wearing all black as Bui, but the Attorney General states, and we agree, Dinh was referring to Ngo. Dinh had earlier described Bui as wearing a white T-shirt. And, the district attorney had earlier described Tran and Ngo as being similarly dressed in all black.

[2] Miranda v. Arizona (1966) 384 U.S. 436.

[3] All further statutory references are to the Penal Code, unless otherwise indicated.

[4] The information also charged Bui in counts 1, 2, and 4. Additionally, the information charged Bui with false personation (§ 529, par. 3) (count 3).

[5] Tran acknowledges his defense counsel did not object to Mize’s testimony pursuant to Crawford despite its having been decided approximately one year before trial. However, defense counsel objected to the district attorney’s questioning of Ngo based on Aranda/Bruton. (See People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.) The Attorney General “liberally construe[s] [defense] counsel[‘s] objection as a Crawford objection . . . .”

[6] Tran focuses on the fact Ngo did not appear at the preliminary hearing and was not available for cross-examination there. He contends that because Ngo would not answer the district attorney’s questions at trial, Crawford requires a prior opportunity to cross-examine. Crawford held out-of-court testimonial statements are admissible where the declarant is unavailable to testify and the defendant had a prior opportunity to

cross-examine the declarant. The issue here is whether Ngo was unavailable at trial. As we explain below, Ngo appeared at trial and was available for cross-examination there.

[7] Judicial Council of California Criminal Jury Instructions (2006), Preface, pages v-vi (by Carol A. Corrigan, Associate Justice of the Court of Appeal, First Appellate District).

As an aside, contrary to Tran’s statement, the Task Force was not chaired by “the latest addition to the California Supreme Court, Justice Connie [Consuelo] M. Callahan.” The Task Force was chaired by the newest addition to the California Supreme Court, Associate Justice Carol A. Corrigan. Judge Callahan is a judge on the Ninth Circuit Court of Appeals.