Filed 2/22/17 P. v. Vizcarra CA4/3
On remand; opinion reposted 6/22/17; no change in text





NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

LORENZO VIZCARRA,

Defendant and Appellant.


G050644

(Super. Ct. No. 11CF2055)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Lorenzo Vizcarra and his codefendants Luis Carmona and Michelle Hernandez were convicted of robbery, conspiracy to commit robbery, and recklessly evading the police. The jury also found that appellant personally inflicted great bodily injury on the victim and that he and Hernandez acted to benefit a criminal street gang and were guilty of street terrorism. Appellant contends there is insufficient evidence to support certain aspects of the jury’s verdict, and the introduction of hearsay evidence from the prosecution’s gang expert undermined his Sixth Amendment confrontation rights as interpreted by the United States Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
In our prior unpublished opinion People v. Vizcarra (Jan. 27, 2016, G050644) (Vizcarra I), we affirmed the judgment against appellant. In so doing, we relied on People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) as the basis for rejecting appellant’s Sixth Amendment claim. However, we also recognized the California Supreme Court was presently considering “whether Gardeley comports with Crawford and current trends respecting the Sixth Amendment’s Confrontation Clause.” (Vizcarra I, supra, at p. 5, fn. 2.) It thus came as no surprise when the California Supreme Court granted review of our decision.
Following that grant, in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the Supreme Court disapproved of Gardeley and adopted new rules governing the admissibility of expert hearsay testimony. The court then transferred the case back to us for reconsideration in light of Sanchez. With Sanchez as our guide, and after considering the parties’ supplemental briefing on the issue, we conclude some of the gang expert’s testimony in this case should have been excluded under Crawford. However, we also find the Crawford violation was harmless considering all the other evidence that was presented against appellant. We therefore affirm the judgment.
FACTS
On June 21, 2011, around 3:00 a.m., 67-year-old Martin Capune was riding his bicycle on Balboa Boulevard in Newport Beach. Because that stretch of road does not have a bike lane, Capune was riding as close to the curb as possible. Without warning, his bike was bumped from behind by a champagne-colored sedan. The impact did not cause Capune to fall off his bike, but he stopped to check for damage, noticing his rear wheel was slightly bent. He also noticed the sedan had continued east on Balboa for about half a block, made a U-turn and stopped across the street on the westbound shoulder. After idling there for a few moments, the vehicle proceeded forward, made another U-turn and pulled alongside Capune, who was still looking over his bike.
There were three people in the sedan. Carmona was the driver, appellant was in the front passenger seat and Hernandez was in the back. As soon as they pulled up to Capune, appellant yelled something to the effect of, “Hey, old man, give us five dollars.” Capune surmised the people in the car were on some sort of scavenger hunt, and in an attempt to diffuse the situation, reached for his wallet to give them five dollars. Before he was able to tender the money, Hernandez said, “Get all of his money.” Then appellant exited the car and punched Capune in the side of the head, knocking him out. Besides appellant, Capune did not actually see anyone else get out of the car. However, in the moments before he was punched, he heard not one, but two car doors slam “almost at the same time.”
When Capune came to, defendants’ car was gone, and he was being attended to by the police and paramedics. Although he was still somewhat groggy, he did notice his wallet was missing. He was taken to the hospital, where he was treated for facial abrasions and a contusion on the side of his head that required six stitches. When the police interviewed him there, he said he heard two male voices yelling at him prior to being hit, and he indicated more than one man may have assaulted him.
Ryan Croteau lived near the crime scene. After hearing an “impact noise,” he got out of bed to see what was going on. As he was walking out to his balcony, he heard an exchange of yelling, and the sound of two car doors closing. Then he saw defendants’ car leave abruptly and went downstairs to see if Capune was okay.
Based on Croteau and Capune’s descriptions of defendants’ car, officers were able to locate the vehicle in the area. When they attempted to pull it over, Carmona sped away and led officers on an extended high-speed chase. During the pursuit, defendants tossed Capune’s wallet out the window. When their vehicle was finally cornered in Fullerton, appellant and Hernandez surrendered to police, but Carmona fled on foot and did not turn himself in until the following day. The police found $40 in defendants’ car, which was the amount missing from Capune’s wallet when it was returned to him.
On these facts, it is easy to see why the prosecution charged appellant and his cohorts with robbery, conspiracy and reckless evasion. But the prosecution did not stop there. It also alleged as an enhancement allegation that appellant committed the crimes for the benefit of a criminal street gang. (Pen. Code, § 186.22, subd. (b).) In addition, it charged appellant with the substantive offense of street terrorism for assisting felonious conduct by gang members. (Id., at subd. (a).) The propriety of these gang charges is less obvious, given that there was no evidence the subject robbery occurred in gang territory or that anyone in appellant’s group flashed gang signs or yelled out any gang names during the attack. Moreover, the victim Capune was not shown to have any connection to a gang or to have been targeted in retaliation for anything he may have done. In light of these circumstances, the prosecution relied on the testimony of an expert witness to prove the gang charges. Because the expert’s testimony is the focal point of this appeal, we will set forth his testimony in detail.
The prosecution’s expert witness on gangs was Corporal Jonathan Radus, a 10-year veteran of the Fullerton Police Department. At the time of trial in 2012, Radus was assigned as a field training officer in the department’s general patrol division. Prior to then – from 2008 to 2012 – he was a detective in the gang suppression unit, and before that, he was a patrol officer. As part of his training, Radus has attended meetings and conferences of the Orange County and California Gang Investigators Associations. At those gatherings, Radus learned about the customs and activities of criminal street gangs. He has also read several books and articles on the topic of gang culture.
In addition to this academically oriented training, Radus has learned about gangs on the “street level” through his work as a police officer. In that capacity, Radus has investigated over 250 gang crimes and spoken to countless gang members, members of their families and victims of their crimes. These experiences have enabled him to acquire specialized knowledge concerning the workings and characteristics of criminal street gangs.
Speaking to those characteristics, Radus testified the chief aim of gangs is to acquire respect, which they get by committing crimes – the more violent the crime, the more respect it will engender. And when carrying out crimes, gang members like to work together because there is strength in numbers and they can trust one another. Radus said providing support to one another during a crime is an important way for gang members to show allegiance to their gang. Another way of showing allegiance is by getting a gang tattoo. It has been Radus’ experience that gang tattoos often “tell a story” about the people who have them and can shed light on the motives behind their behavior.
Based on his work as a police officer, Radus has learned there are four main gangs in Fullerton, including Baker Street, the gang at issue in this case. Radus described Baker Street as a typical Southern California Hispanic street gang. He said the gang started in the late 1980’s and has about 50 documented members, although it only had about 15 active members at the time this case arose. To distinguish themselves from other gangs, Baker Street members often wear clothing or sport tattoos with the letters “B” or “S” for Baker Street, or the letter “F” for Fullerton.
Radus opined Baker Street constitutes a criminal street gang under California law. He said the gang’s primary activities include robbery, possessing firearms, and assault with a deadly weapon. He also described two predicate offenses that were committed by members of Baker Street for the benefit of that gang. Although appellant was not implicated in those offenses, Radus opined he was a member of Baker Street when the present case arose in 2011. Radus testified codefendant Hernandez was also a member of Baker Street at that time, and codefendant Carmona was an “associate” of the gang, meaning he was someone who liked to hang around with Baker Street members and partake in their crimes from time to time.
With respect to appellant’s gang status, Radus found it telling he has a tattoo of a large “F” on his leg and a tattoo of the word “Fullerton” on his hand. Although the “F” on appellant’s leg is in the same style of lettering as the “F” in the Cal State Fullerton logo, Radus believed appellant’s tattoo signified his allegiance to the Baker Street gang, not the Cal State Titans. In fact, the only other people Radus has ever seen with such a tattoo were members of Baker Street. Radus testified a tattoo like that has to be earned by putting in time for the gang, and if someone who was not a member of Baker Street had one, it would jeopardize their personal safety.
In forming his opinion about appellant’s gang status, Radus also found it significant appellant has engaged in criminal acts with Baker Street members in the past. Radus described three crimes in that regard, the most recent of which occurred a week before the present case arose. On that occasion, appellant, Hernandez and a Baker Street member named Contreras “hit up” a female in a parking lot. Then, while appellant and Contreras looked on, Hernandez assaulted the female. The other crimes Radus described involved appellant assaulting a suspected “snitch,” and appellant and a Baker Street member robbing a pizza delivery guy.
Except for the hit-up incident, on which he was the lead investigator, Radus did not work on these cases. However, he was personally familiar with appellant from having contacted him on numerous other occasions. Radus was also aware of four other episodes during which the police contacted appellant on Iris Court in Fullerton, which is in the heart of Baker Street territory and where appellant was living when this case arose. During those encounters, appellant was in the presence of other Baker Street members, but he was not doing anything illegal. While appellant has admitted to the police that he is an associate of Baker Street, he has never admitted being a member of that gang.
Radus did not limit his opinions to the topic of appellant’s gang status. During his testimony, he also expressed his belief that the crimes appellant, Hernandez and Carmona committed in this case were beneficial to Baker Street. With respect to that issue, Radus testified that when gang members commit robbery, they can use the proceeds to buy drugs, weapons and other items for their gang. They can also purchase gas so they can drive into other neighborhoods and commit more crimes. And when, as here, the robbery results in the acquisition of credit cards and a driver’s license, those items can be used to commit fraud and identity theft for financial gain. Radus said the crimes at issue in this case also had the potential to benefit Baker Street’s status in the community because gang members often brag about their crimes to other people. Radus said that once word got out about the crimes appellant and his cohorts committed, it would enhance their individual reputations as well as the reputation of Baker Street as a whole.
Radus’ opinions about appellant’s gang status and the nature of his crimes were derived from a variety of sources, including documentary information he reviewed in preparing for his testimony. For instance, not having participated in the investigation into the charged offenses, Radus relied on police reports to get an understanding of how those crimes were committed. He was also provided information about the case as part of a hypothetical question the prosecutor presented to him on direct examination. In addition, Radus reviewed “gang packets” that contained information about appellant and his codefendants. These packets consisted of court documents, police reports and field identification or “FI” cards, which are used by the police to document street encounters with suspected gang members. Radus said these materials are part of the intelligence data the police use to keep track of gang members and their activities.
All told, it was apparent from Radus’ testimony that his opinions about the case were informed by three general sources: 1) His background and training; 2) his personal experiences as a police officer; and 3) hearsay information that was provided to him or gathered by others. With respect to the third source, the trial court instructed the jurors they could consider hearsay evidence in assessing the strength of Radus’ opinions, but they could not consider it for its substantive truth. Under Gardeley, this type of jury instruction was considered a permissible method to avoid hearsay and confrontation problems involved in expert hearsay testimony. That’s because the hearsay rule and the Sixth Amendment’s Confrontation Clause only come into play when extrajudicial statements are used to prove the truth of the matters asserted therein. (Evid. Code, § 1200, subd. (a); Crawford, supra, 541 U.S. at p. 59, fn. 9.) However, in Sanchez our Supreme Court disapproved of Gardeley and formulated new rules respecting the admissibility of expert testimony that is based on out-of-court statements. Those rules require us to take a new look at the expert testimony that was admitted in this case.
The Sanchez Decision
Sanchez also involved Orange County crimes – drug and weapons possession – that lacked any obvious signs of gang involvement. (Sanchez, supra, 63 Cal.4th at p. 671.) There too, the prosecution utilized a gang expert to prove the defendant was an active gang participant who committed the crimes for the benefit of his gang. (Ibid.) During his testimony, the expert relied on some of same types of information Radus relied on in this case, e.g., police reports and FI cards. (Id. at pp. 672-673, 694.) Based on Gardeley, this court upheld the expert’s use and recitation of the information contained in those documents on the theory it was not admitted for its substantive truth but merely to explain the foundation for the expert’s opinions. (Id. at pp. 673, 684.) However, Sanchez determined that distinction was untenable. In a major departure from Gardeley, the Sanchez court ruled, “If an expert testifies to case-specific out-of-court statements to explain the basis for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception.” (Id. at p. 684, fn. omitted.) In other words, “hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth.” (Ibid.)
Not all hearsay testimony offered by an expert witness is subject to the hearsay rule, however. In rendering its opinion, the Sanchez court drew a distinction between “case-specific” hearsay that relates “to the particular events and participants alleged to have been involved in the case being tried” and hearsay that is “generally accepted in the expert’s area, or supported by his own experience[.]” (Sanchez, supra, 63 Cal.4th at pp. 675-676.) For practical and historical reasons, Sanchez decided the hearsay rule does not apply to the latter sort of information. (Id. at pp. 675-686.) Thus, “an expert’s testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field” is not “subject to exclusion as hearsay, even [if it is] offered for its truth.” (Id. at p. 685.) In contrast, the hearsay rule precludes an expert from “supply[ing] case-specific facts about which he has no personal knowledge[,]” unless an exception to the rule applies. (Id. at p. 676.)
In addition to this statutorily based hurdle, expert testimony regarding case-specific facts is subject to exclusion under the Sixth Amendment’s Confrontation Clause if it is testimonial in nature. While the precise contours of the term “testimonial” are still being fleshed out by the courts, Sanchez derived a working definition of the term based on Crawford and its progeny. Simply stated, “Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony.” (Sanchez, supra, 63 Cal.4th at p. 689.) Unless the declarant of a testimonial statement is unavailable for trial and the defendant had a prior opportunity for cross-examination, or unless the defendant forfeited his confrontation rights by wrongdoing, the statement cannot be admitted against him at trial without violating the Sixth Amendment. (Id. at p. 686.)
Using this framework, Sanchez determined the police reports that were generated in that case were testimonial because they contained case-specific facts that were gathered during an official investigation of a completed crime. (Sanchez, supra, 63 Cal.4th at p. 694.) Sanchez reached this conclusion despite the fact the defendant was not personally implicated in all of the reports. Even though the defendant was only a witness to the offenses described in some of the reports, the reports were deemed testimonial because they were created in the course of a criminal investigation for the primary purpose of preserving facts for use at trial. (Id. at pp. 694-695.) As for the FI card at issue in Sanchez, the Supreme Court was unable to determine whether it was testimonial given the confusing nature of the evidence surrounding its origin. (Id. at p. 697.) However, the court stated, “If the card was produced in the course of an ongoing criminal investigation, it would be more akin to a police report, rendering it testimonial.” (Ibid.)
Irrespective of that issue, Sanchez determined the gang expert’s reliance on the testimonial statements contained in the police reports violated the defendant’s constitutional right to confront his accusers. Furthermore, because the error was of constitutional magnitude, Sanchez assessed its impact under the standard set forth in Chapman v. California (1967) 386 U.S. 18. (Sanchez, supra, 63 Cal.4th at pp. 698-699.) That standard requires proof beyond a reasonable doubt the subject error did not contribute to the jury’s verdict. (Chapman v. California, supra, 386 U.S. at p. 24.) Applying that standard to the facts before it, the Supreme Court concluded the confrontation clause violation was prejudicial because the gang expert’s recitation of testimonial hearsay was the primary evidence in support of the gang enhancement allegations. (Sanchez, supra, 63 Cal.4th at p. 699.) In fact, other than that hearsay information, there was little other evidence to support the jury’s finding the defendant, who acted alone during the alleged crimes, committed them for the benefit of a criminal street gang. (Ibid.) Therefore, the Supreme Court reversed the jury’s finding in that regard. (Ibid.)
Applying Sanchez Here
Appellant contends Radus’ testimony violated his Sixth Amendment confrontation rights because he related to the jury case-specific testimonial hearsay in offering his opinions about the case. Respondent agrees some of Radus’ testimony was inadmissible under Sanchez and Crawford. However, respondent maintains the error in admitting this testimony was harmless under the circumstances presented. We agree.
“Determining prejudice requires an examination of the elements of the gang [charges] and the gang expert’s specific testimony.” (Sanchez, supra, 63 Cal.4th at p. 698.) In this case, the jury convicted appellant of the crime of active participation in a criminal street gang, aka street terrorism, and it found gang enhancement allegations true with respect to appellant’s other crimes. (§ 186.22, subds. (a) & (b).) However, appellant’s Sixth Amendment argument is limited to the gang enhancement. Therefore, we must ascertain which portions of Radus’ testimony were inadmissible and what effect that testimony may have had on the allegation that appellant committed the crimes of conspiracy, robbery and evading the police “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members[.]” (§ 186.22, subd. (b).)
Although Radus relied on hearsay from a plethora of sources in forming his opinions about this case, appellant’s Sixth Amendment claim is geared toward the police reports and FI cards Radus considered in forming his opinions. In particular, he takes aim at the police reports that Radus used to convey the circumstances of appellant’s three prior crimes, and the FI cards that contained information about appellant’s four prior contacts with Baker Street members.
Taking the police reports first, respondent concedes Radus should not have been permitted to testify about the crimes described in two of them – appellant’s assault on the “snitch” and his robbery of the pizza delivery man – because Radus was not personally involved in investigating those crimes. However, respondent asserts Radus had sufficient personal knowledge to testify about the crime described in the remaining police report – the hit-up incident during which Hernandez assaulted a female while appellant and another Baker Street member were looking on – because Radus was in charge of investigating that crime. We cannot agree. Radus may have headed up the investigation into that offense, but there is no evidence he personally witnessed it. Thus, his knowledge of the crime presumably came from other sources, such as the victim or other witnesses. Since those people were not shown to be unavailable for trial, and appellant never had the opportunity to cross-examine them, the introduction of their statements through Radus violated appellant’s confrontation rights.
With respect to the FI cards, respondent argues there is insufficient evidence to conclude they contained testimonial hearsay because the particular circumstances under which they were made was not detailed at trial. However, while Radus did not provide any particulars in that regard, he did explain that FI cards are generated in the course of “street checks” during which the police talk to suspected gang members about their activities and associations. Once they are filled out, the cards are then kept on file as part of the intelligence data the police use to keep tabs on gangs. As this case and Sanchez demonstrate, the cards are also commonly used by gang experts in forming their opinions about whether a particular defendant is a gang member and whether his alleged crimes were gang related. Thus, it cannot be gainsaid the cards serve an important investigative and prosecutorial function by preserving facts for use at trial. That being the case, they are testimonial in nature, and Radus should not have been allowed to recite their contents to the jury.
Nevertheless, the disclosure of the information contained in the FI cards was not particularly damaging to appellant. It merely showed his association with Baker Street members; it did not implicate him in any criminal or gang related activity. This is to be contrasted with the information set forth in the police reports that depicted appellant as a violent gang member. That depiction was not favorable to appellant, obviously, but in assessing prejudice we must keep in mind that the underlying facts of the present case – most of which came in from direct testimony, not hearsay – painted appellant in a violent light. (See generally People v. Whisenhunt (2008) 44 Cal.4th 174, 205 [no error in admitting evidence of the defendant’s prior crimes because such evidence was far less inflammatory than the crimes with which he was currently charged]; People v. Ewoldt (1994) 7 Cal.4th 380, 405 [no error in admitting evidence of the defendant’s uncharged crimes where the testimony describing such crimes “was no stronger and no more inflammatory than the testimony concerning the charged offenses”].)
Appellant asserts reversal is required nonetheless because the information contained in the police reports and FI cards was instrumental in terms of proving 1) he was a member of Baker Street, and 2) he acted with the specific intent to promote, further or assist criminal conduct by members of that gang. However, the defendant does not have to be a gang member to trigger the gang enhancement set forth in section 186.22, subdivision (b). (People v. Albillar (2010) 51 Cal.4th 47, 67-68.) It is the defendant’s actions and intent, not his gang status that control whether he is liable under the statute. (Ibid.)
As it turns out, though, there was a considerable amount of evidence, apart from the challenged hearsay testimony, showing appellant was actually a member of Baker Street at the time this case arose. For one thing, appellant has tattoos that Radus identified as expressing allegiance to Baker Street. Radus made it clear it would be extremely hazardous to appellant’s health and well-being to have those tattoos if he were not a member of that gang. Second, it is undisputed appellant committed the crimes involved in this case with a member (Hernandez) and an associate (Carmona) of Baker Street. That appellant committed the crimes with other gang members is an important point of distinction from the Sanchez case, in which the subject crimes were committed by only one person.
The group nature of the underlying crimes was also an important consideration for Radus in forming his opinions about this case. Based on his educational background and training, as well as his personal experience as a police officer, i.e., nonhearsay sources, Radus was aware gang members like to commit crimes in association with each other. They do this, Radus said, because it allows them to carry out their crimes more effectively and because it provides them with a built-in audience for their actions. As Radus explained to the jury, a gang member’s standing in his gang is much more likely to improve when other members of the gang can personally attest to the particular crimes he has pulled off.
Of course, not all crimes that are carried out by multiple actors are gang related. But in this case, there was another factor at play that suggested the subject crimes were gang related, and that was the level of brutality that accompanied their commission. In that regard, the record shows the elderly gentleman whom appellant and his cohorts victimized was in the process of complying with their demand for money when appellant waylaid him with a punch to the head. If appellant and his codefendants had been like most robbers, they probably would have been content with obtaining the victim’s money. Instead, they engaged in the type of gratuitous violence the gang statutes were intended to prevent. It’s sad to say, but whereas simply taking money from a defenseless senior would probably not engender much respect in gang circles, rendering him unconscious and in need of hospitalization and then fleeing from the police is the sort of thing that would really give gang members something to brag about in their twisted value hierarchy. This is something the jury would have been able to deduce from the evidence without relying on any testimonial hearsay.
Additionally, the jury was made aware from Radus’ testimony that committing robberies, which is one of Baker Street’s primary activities, enables gang members to obtain the financial resources to purchase contraband and commit other crimes. Since this testimony was not dependent on testimonial hearsay, it is also relevant to our harmless error analysis.
In comparison to all of this evidence, Radus’ testimony about appellant’s prior crimes and police contacts was relatively unimportant. While this testimony should have been excluded under Sanchez and Crawford, there was an abundance of properly admitted nonhearsay evidence that proved the underlying offenses were gang related. Given the nature and strength of that evidence, we are confident the jury’s exposure to appellant’s criminal background and prior police contacts was harmless beyond a reasonable doubt. Therefore, it is not cause for reversal.
Additional Challenges to the Gang Enhancement Findings
Separate and apart from his Sixth Amendment claim, appellant asserts the prosecution elicited improper opinion testimony from Radus in attempting to prove the gang enhancement allegations. Appellant claims that without this evidence, the jury’s true finding on the gang allegations must be reversed due to insufficient evidence. We find this argument unavailing.
As explained above, Radus testified extensively about the gang dynamics at play in this case. It was Radus’ opinion that appellant belonged to Baker Street – which Radus described as a traditional Southern California Hispanic street gang – and that appellant’s crimes benefited his gang by enhancing its reputation for violence and creating the potential for financial gain. Although it is well established that expert testimony may be used to explain the characteristics of gangs and to prove a particular crime is gang related (People v. Albillar, supra, 51 Cal.4th at p. 63), appellant contends Radus’ testimony was flawed in several respects.
First, appellant argues Radus rendered an improper opinion as to his guilt. In support of this claim, appellant relies on In re Frank S. (2006) 141 Cal.App.4th 1192 and People v. Vang (2011) 52 Cal.4th 1038, which prohibit expert testimony on the subjective intent of the defendant. But Radus never testified about appellant’s state of mind or rendered an opinion about his guilt or innocence. Rather, he limited his opinions to the objective circumstances surrounding appellant’s gang activity and how that activity may have benefited Baker Street in this case. Therefore, the subject matter of his testimony was not improper.
Appellant also asserts Radus did not have sufficient knowledge to testify about Baker Street’s primary activities or that appellant was a member of that gang. However, Radus has been a Fullerton police officer for over 10 years, 4 of which he spent working as a gang detective. He has personally investigated 30 to 40 crimes that were committed by Baker Street members, and he has handled another 10 or so crimes in which Baker Street members were victims. Radus has also spoken extensively to Baker Street members, their families and their victims. And he has received information from other officers about the gang, including numerous reports about Baker Street’s criminal network and its various illegal activities. This was a sufficient evidentiary foundation for Radus’ opinion regarding Baker Street’s primary activities.
Radus also had sufficient knowledge and experience to support his opinion appellant was a member of Baker Street at the time of the alleged offenses. Radus’ education, training and police work have all prepared him to detect and identify gang activity. And it was apparent from his testimony he is familiar with appellant, his associates, his past crimes and his involvement in this case. In forming his opinions about appellant’s gang status, Radus also relied on the fact appellant has tattoos showing his allegiance to Baker Street and that appellant has admitted associating with that gang. Thus, it cannot be said that Radus’ opinions lacked an adequate foundation.
Continuing his attack on Radus’ testimony, appellant contends it was too general because it was not specifically geared toward Baker Street. Appellant also maintains there was nothing about the particular circumstances of the underlying offenses to support Radus’ opinion they were gang related. Hernandez tendered the same arguments in her appeal. For the reasons we explained in her case, we reject these arguments for lack of evidentiary and legal support. (People v. Hernandez, supra, G050348, at pp. 4-7.) There is simply no basis to disturb the jury’s true finding on the gang enhancement allegations.
The Street Terrorism Count
Appellant’s challenge to the street terrorism count is essentially a rehash of his previous arguments. He contends that given Radus’ limited knowledge of Baker Street, and considering the way the alleged crimes played out, there is insufficient evidence he was an active participant in Baker Street who acted in concert with other gang members, and therefore the street terrorism count must be reversed. (§ 186.22, subd. (a).) However, as we have explained, Radus had adequate experience and familiarity with gangs to support his opinion appellant was an active member of Baker Street when the charged offenses took place. Furthermore, it is clear appellant’s group worked in association with each other in committing those crimes: Carmona was the wheelman, appellant was the muscle, and Hernandez provided encouragement and direction. Drawing all inferences in favor of the judgment below, there is substantial evidence to support appellant’s conviction for street terrorism.
The Conspiracy Count
Contending the robbery was a spur-of-the-moment idea that lacked any planning or agreement, appellant contends there is insufficient evidence to support the jury’s verdict on the conspiracy count. However, as we explained in Carmona’s appeal, the circumstances of the robbery indicate appellant and his codefendants intentionally targeted the elderly victim and carried out a collective plan to take his money by force or fear. (See People v. Carmona, supra, at pp. 4-5.) Because there is substantial evidence to support this theory we reject appellant’s challenge to the conspiracy count. (Ibid.)
DISPOSITION
The judgment is affirmed.


BEDSWORTH, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.