Filed 10/25/07

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kern County. James M. Stuart, Judge.

Thomas P. Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez, and William K. Kim for Plaintiff and Respondent.

-ooOoo-

Defendant Hue Nay shot a teenage boy in the hand and was convicted of assault with a firearm, being a felon in possession of a firearm, and being an active participant in a criminal street gang. He received a prison sentence of 24 years, which included sentence enhancements for personal firearm use and committing the assault for the benefit of, at the direction of, or in association with a criminal street gang. On appeal, he argues that (1) there was insufficient evidence to prove the substantive charge of active gang participation; (2) there was insufficient evidence to prove the gang enhancement; (3) a portion of the testimony of the prosecutions gang expert was admitted into evidence erroneously and was an improper basis for his opinion; and (4) the sentence contravened the United States Supreme Courts recent decisions in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We affirm.

FACTUAL AND PROCEDURAL HISTORIES

Bakersfield police officers came to a house on the night of July 3, 2005, in response to a report of shots fired. There they met S., who was bleeding from a gunshot wound. He had been in his yard, walking toward his house, when he heard shots and was struck in the hand. He ran inside. Additional shots struck the door.

S. did not see who shot him. He told an officer, however, that defendant lived across the street and had asked S. several times to join a gang called the Oriental Troops. S. had refused and he and his family experienced problems with the gang afterward.

Another witness provided a description of the shooter. Officers went to a nearby house and arrested defendant. They conducted an in-field show-up and two witnesses identified defendant as the person they had seen shooting S.

The district attorney filed a four-count information. Count one was assault with a firearm. (Pen. Code,  245, subd. (a)(2).)^[1] Count two was discharging a firearm at an inhabited dwelling. ( 246.) Count three was being a felon in possession of a firearm. ( 12021, subd. (a)(1).) Count four was active participation in a criminal street gang. ( 186.22, subd. (a).) For sentence enhancement purposes, the information also alleged that defendant personally used a firearm ( 12022.5, subd. (a)(1)) in committing the offense set forth in count one; acted for the benefit of, at the direction of, or in association with a criminal street gang ( 186.22, subd. (b)(1)) in committing the offenses set forth in counts one, two and three; and served a prior prison term ( 667.5, subd. (b)).

At trial, a witness who had identified defendant at the scene of the crime identified him again. A police technician testified that a swab of defendants right hand tested positive for gunshot residue.

S., who had been taken in by a family after his mother died and his father expelled him, testified at trial. He denied he ever told the police anything about defendant or gangs. He said he did not know defendant, had never had any problems with him, and had never been asked to join a gang. An investigator for the district attorneys office testified that S. said he was afraid of defendant and his associates and did not want to be involved in the case. The witness who testified that he saw defendant shoot S. was the man who, with his wife, took S. in; after trial he was placed in a witness protection program.

A Bakersfield police officer testified as an expert on local gangs. He opined that a gang known as the Oriental Troop, Oriental Troops, or Oriental Troop Boyz existed in Bakersfield. Partly on the basis of defendants repeated admissions to police, the officer further opined that defendant was an active member of this gang. He also believed defendant committed the shooting in association with or for the benefit of the gang.

The parties stipulated that defendant had a prior felony conviction.

The jury found defendant guilty of counts one (assault with a firearm), three (being a felon in possession of a firearm), and four (being an active participant in a criminal street gang), and found the firearm-use and gang-relatedness allegations true. It found defendant not guilty of count two (discharging a firearm at an inhabited dwelling). The court dismissed the prior-prison-term allegation at the Peoples request.

The court sentenced defendant to 24 years in prison. This consisted of the upper term of four years for count one ( 245, subd. (a)(2)), plus 10 years for the gang-relatedness enhancement ( 186.22, subd. (b)(1)) and 10 years for the firearm-use enhancement ( 12022.5, subd. (a)(1)). Upper terms for counts three and four were imposed and stayed pursuant to section 654.

DISCUSSION

I. Sufficient evidence to prove gang offense

Defendant argues that insufficient evidence was presented at trial to prove count four, which alleged that he violated section 186.22, subdivision (a), by actively participating in a criminal street gang. When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidencethat is, evidence that is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) For the reasons we will explain now, the evidence was sufficient.

Section 186.22, subdivision (a), provides:

Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.

A person actively participates in a criminal street gang if his involvement is more than nominal or passive; but the person need not devote a substantial part of his time to the gang or hold a leadership position and does not even have to be a member of the gang. ( 186.22, subd. (i); People v. Castenada (2000) 23 Cal.4th 743, 747; In re Jose P. (2003) 106 Cal.App.4th 458, 466.)

A person willfully promotes, furthers, or assists in any felonious criminal conduct by members ( 186.22, subd. (a)) of a gang either by directly perpetrating a gang-related felony or aiding and abetting in the perpetration of one. (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.) Instructing the jury in accordance with CALJIC No. 6.50, the court in this case stated that [f]elonious criminal conduct included assault with a firearm, shooting at an inhabited dwelling house, or possession of a firearm by a convicted felon, i.e., the offenses charged in counts one, two, and three.

The term criminal street gang is defined in section 186.22, subdivisions (e) and (f). The elements of this definition require: (1) an ongoing organization or group, (2) of three or more persons, (3) having as one of its primary activities the commission of enumerated crimes, (4) having a common name or symbol, and (5) whose members individually or collectively have engaged in a pattern of criminal gang activity. This pattern of gang activity must consist of two or more enumerated offenses, provided that at least one offense occurred after the effective date of the statute. The last offense must have occurred within three years of the one before it and the offenses must have been committed on separate occasions or by two or more persons.

The primary activities of a gang means its chief or principal occupations, not activities that the gangs members engage in only occasionally. (In re Jorge G. (2004) 117 Cal.App.4th 931, 945.) In this case, the court instructed the jury that this component of the definition of a criminal street gang could be proved by evidence that the gangs primary activities included the commission of one or more of the following criminal acts, namely, assault with a deadly weapon or firearm, possession of cocaine base for sale, shooting at an inhabited dwelling house, or possession of firearms . This list included the offenses charged in counts one, two and three; it also included Oriental Troops crimes about which the prosecutions gang expert testified.

The instruction included a statement that a pattern of criminal gang activity could be established by proof of two or more of the following crimes, namely, assault with a deadly weapon or possession of cocaine base for sale, provided at least one of those crimes occurred after September 26, 1988, and the last of those crimes occurred within three years after a prior offense and the crimes are committed on separate occasions or by two or more persons.

The jury instruction also included the following summary of the elements of the gang-participation offense:

In order to prove this crime, each of the following elements must be proved:

1. A person actively participated in a criminal street gang;

2. The members of that gang engaged in or have engaged in a pattern of criminal gang activity;

3. That person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and

4. That person either directly and actively committed, or aided and abetted other members of that gang in committing, the crimes of assault with a firearm, shooting at an inhabited dwelling or possession of a firearm by a felon.

The prosecution proved that the Oriental Troops existed and were a criminal street gang via the testimony of a police gang expert, Officer Toney Hannon. Based on criminal history reports, probation reports, and personal contacts with Oriental Troops members, Officer Hannon testified that the Oriental Troops were a criminal street gang based mainly in Bakersfield. The gang did not have a large number of members, but had three or more. It had a distinctive hand signal meant to represent the letters O and T, and distinctive tattoos, including the letters OT and OTS, and the words Oriental, Oriental Troop, and Khmer.^[2]

Officer Hannon further opined that the primary activities of the Oriental Troops gang were [p]ossession, use, sales of illegal drugs, robbery, burglary, homicide, drive-by shootings, shootings in general, possession of firearms. He testified that one admitted Oriental Troops member, Voeun Som, was found with several individually wrapped pieces of cocaine base in Bakersfield on November 15, 2001, and was convicted of possessing cocaine base for sale (Health & Saf. Code,  11351.5). On October 23, 1999, two other admitted Oriental Troops members, Chhay Kim and Yadang Moth, were arrested in Bakersfield after a shooting was reported. A stolen revolver was found in the car they were driving. Kim and Moth were convicted of crimes on the basis of this incident.^[3] Hannon opined that each of these offenses was committed in association with or for the benefit of the Oriental Troops gang.

Hannon also opined that defendant was an active participant in the gang on July 13, 2005, when he committed the shooting for which he was prosecuted in the present case. His opinion was based on booking records, booking photographs, criminal history reports, and records of field interviews.

These records contained indications of defendants gang participation over a period of 12 years. After a robbery arrest in August of 1993, defendant told police he was a member of the Oriental Troop Boyz and another gang called the Tiny Rascals. A tattoo on his left arm said T Rascal G; another on his left shoulder said Cambodian. He said his gang moniker was Kicker. In November of 1993, police contacted defendant on a street. He again told them he was an Oriental Troops member. This time he said his moniker was Dreamer; a tattoo saying OTS was observed on his stomach. In December of 1994, police again interviewed defendant on a street. He again asserted membership in the Oriental Troops and said he had been a member for 19 months. The tattoo on his left arm now said OT Rascal G and one on his back said Oriental Troopers. Defendant again claimed the moniker Dreamer.

In January of 2001, defendant was again contacted by police and again admitted he was an Oriental Troops member. Tattoos not observed previously included OTS on his forearm and Khmer on his stomach and the back of his neck.

On January 22, 2005, defendant was taken into custody after he had a conflict with a neighbor and refused to comply with police commands. He admitted he was an Oriental Troops member. A week later, police contacted defendant on a street with five other people. Defendant and three of the others admitted they were Oriental Troops members.

At a booking on March 18, 2005, police took photographs of defendants tattoos. These included, in addition to those already noted, Thug Life or Thuggy Life on defendants stomach. (Hannon reviewed a total of five booking records on defendant; each time, defendant claimed Oriental Troops membership.) Defendant again admitted to being an Oriental Troops member after his arrest for the shooting in the present case on July 13, 2005.

Police came to a house on November 23, 2005, after receiving a report of shots fired. Defendant and several other people were in the back yard; a gun and ammunition were also found there. Defendant and several of the others claimed Oriental Troops membership. Some of the others were prosecuted in connection with this incident; defendant was not.

Finally, the expert opined (in the form of a response to a hypothetical situation based on the facts of this case) that the July 13, 2005, shooting was a gang-related offense. He relied on the general proposition that shootings by gang members increase the members status and worsen the gangs reputation, as well as on the specific fact that, according to the victims statement to police, defendant had made a previous unsuccessful attempt to recruit the victim into the gang. The expert opined that a refusal to become a member would be taken as a sign of disrespect and would call for gang retaliation, without which the gang would be seen as weak.

Applying the evidence to the statutory elements, we conclude that the prosecution presented sufficient evidence to support the conviction of a violation of section 186.22, subdivision (a). The evidence, including the expert opinion, showed: (1) the Oriental Troops gang was an ongoing organization, had three or more members, had the commission of enumerated offenses as a primary activity, and had engaged in a pattern of criminal gang activity consisting of at least two predicate offenses; and (2) defendant willfully furthered felonious activity of the gang by committing the shooting on July 13, 2005, and actively participated in the gang with knowledge of its criminal activities.

Defendant argues that the evidence proved neither that the Oriental Troops was a criminal street gang within the meaning of the statute nor that defendant was an active participant in it. His contention is based on the claim that the expert should not have been permitted to testify about or rely on the November 23, 2005, incident, which took place after the shooting for which defendant was prosecuted in the present case. Without this incident, defendant argues, the evidence was insufficient. As we will explain later in this opinion, the admission of the experts testimony about this incident and his reliance on it were proper.

Even without the November 2005 incident, the evidence was sufficient. Defendant asserts that, without it, the evidence could not show that the Oriental Troops was a criminal street gang because there were no examples of homicides and the cocaine-base and revolver incidents the expert discussed were old and relatively innocuous by gang standards. There is, of course, no requirement that the prosecution produce examples of homicides; and drug-dealing and handgun offenses are not innocuous by any standards. Further, the shooting of which defendant was convicted in this case also supported the finding that the Oriental Troops was a criminal street gang. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 322-323 [currently charged offenses can be used to establish primary-activities element of criminal-street-gang definition].)

Defendant relies on a leading cases reference to evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.) He argues that the two incidents just described do not constitute this kind of evidence. Contrary to this implication, however, this kind of evidence is not required. The quoted passage reads in full:

Sufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in [People v.] Gardeley [(1996)] 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on his personal investigations of hundreds of crimes committed by gang members, together with information from colleagues in his own police department and other law enforcement agencies. [Citation.] (People v. Sengpadychith, supra, 24 Cal.4th at p. 324.)

The prosecution relied on similar expert testimony in this casenot just on specific examples of criminal activity by Oriental Troops members. Officer Hannon testified, Ive been assigned to Asian gangs as a specific gang that I need to identify and target myself for future courtroom testimony, and I make it a point to contact them on a weekly to bi-weekly basis during just general street contacts and probation and parole searches. He contacted Oriental Troops members in particular [a]t least every two weeks. He also spoke weekly about Asian gangs with personnel in other law enforcement agencies, including probation and parole officers and members of gang enforcement units in other cities police departments.

Defendant next argues that, assuming the Oriental Troops was a criminal street gang, there was insufficient evidence to prove he was an active participant in it. He says there was insufficient evidence that [he] committed the [current offenses] while accompanied by other gang members and there was no evidence that the police ever gave [him] written notice that he was a member of the Oriental Troop and that the Oriental Troop was a criminal street gang as defined by statute. These contentions are meritless; neither showing is required. The fact that these types of evidence were presented in People v. Castenada, supra, 23 Cal.4th 743 does not mean that the offense cannot be proved without them, as defendant implies.

Defendant also argues that, except for the November 2005 incident, all that the prosecution established was that [he] had Asian related tattoos . This claim misrepresents the record. The prosecutions expert testified that the tattoos were gang-related; they were not merely ethnicity-related. Several of them referred to defendants gang by name, and some of them, such as Thuggy Life, had nothing to do with ethnicity. More importantly, the prosecution also presented evidence that defendant claimed gang membership to police many times in the course of many years, attempted to recruit the victim of the current offenses into his gang, and committed the current offenses because of the victims refusal. Even without the November 2005 incident, the evidence of defendants active participation in a criminal street gang was ample.

II. Sufficient evidence to prove gang enhancement

Defendant argues that insufficient evidence was presented at trial to prove the gang-enhancement allegations made by the prosecution pursuant to section 186.22, subdivision (b)(1). To prove these allegations, the prosecution was required to show that defendant committed the shooting for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . ( 186.22, subd. (b)(1).) This it amply showed.

To prove the allegations under section 186.22, subdivision (b)(1), the People first had to show that the Oriental Troops were a criminal street gang within the meaning of the statute. We have already stated that the evidence was sufficient to show that, so the only questions are whether it was also sufficient to show (1) that the shooting was committed for the benefit of, at the direction of, or in association with the Oriental Troops; and (2) that defendant committed the shooting with the specific intent to promote, further or assist in criminal gang conduct.

Defendant claims that [o]nce the subsequent event is removed, there was almost no evidence that the shooting was for the benefit of the Oriental Troop. This is not correct. A police witness testified that, according to the victim, defendant had tried to recruit him for the gang; the victim refused and had trouble from gang members later. This testimony supported the experts opinion that the shooting was retaliation for the victims refusal to join the gang. The evidence was more than sufficient to prove that the shooting was for the benefit of the gang.

Defendant relies on the victims recantation at trial. He acknowledges that the police testimony suggested that [the victim] was changing his testimony at trial because he was scared of defendant, but argues that this was only speculation, and no evidence was presented to back it. No evidence beyond the prior inconsistent statement was required, however. Prior inconsistent statements are admissible to prove the truth of what they assert. (Evid. Code,  770, 1235; People v. Johnson (1992) 3 Cal.4th 1183, 1219.) The jury could reasonably believe the victims prior statement and disbelieve his trial testimony.

Defendant also claims that there was insufficient evidence of a specific intent to promote criminal gang conduct. We disagree. The evidence that defendant shot the victim to retaliate for the victims refusal to join the Oriental Troops was sufficient to show the necessary intent.

Defendant cites In re Frank S. (2006) 141 Cal.App.4th 1192, but that case does not support his position. The juvenile court sustained a petition alleging that Frank S. carried a dirk or dagger; a gang enhancement was also found true. (Id. at pp. 1194-1195.) This court reversed the gang enhancement, stating that crimes may not be found to be gang-related based solely upon a perpetrators criminal history and gang affiliations. (Id. at p. 1195.) In this case the gang enhancement was not based solely upon defendants criminal history and gang affiliations. It was also based on evidence that he shot the victim to retaliate against him for refusing to join the gang.

Defendant cites Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099. This case also is inapposite. After declaring his gang affiliation and moniker to the victim, Garcia and two companions robbed a man of his bicycle and some cash. (Id. at p. 1101.) The Ninth Circuit held that the evidence was insufficient to show a specific intent to promote criminal gang conduct. (Id. at p. 1103.) In the present case, defendant did not commit a crime after merely announcing his gang affiliation. There was evidence that he committed it as a form of retaliation after trying unsuccessfully to recruit the victim into the gang.^[4]

Finally, defendant asserts that the evidence of specific intent was insufficient because there was no showing that the shooting promoted any specific additional gang crime:

[I]n the present case, there was no evidence presented as to what criminal activity of the Oriental Troop was furthered by the shooting. The only crimes mentioned by the gang expert were drugs and shooting. There was no evidence presented that the shooting of [the victim] by [defendant] promoted drug sales. Nor was there any evidence presented that shooting [the victim] would promote other shootings. Consequently, it is difficult to understand how [defendant] furthered any criminal activity of the Oriental Troop.

The defect in this reasoning is that section 186.22, subdivision (b), does not require an intent to promote criminal gang activity in addition to the current offense. (People v. Hill (2006) 142 Cal.App.4th 770, 773-774; People v. Romero (2006) 140 Cal.App.4th 15, 19.) Shooting a person with the intention to enforce a gangs recruitment efforts is itself criminal conduct by gang members which the shooter has the specific intent to promote. ( 186.22, subd. (b).)

III. Evidence of gang conduct after the assault

As we have said, the police gang expert testified that the basis of his opinions included a police report indicating that, five months after the shooting, defendant was found in a backyard with several gang members, a gun, and some bullets. A neighbor had reported shots fired. At trial, outside the jurys presence, defendants counsel objected to this testimony on Evidence Code section 352 grounds. The court overruled the objection and allowed the testimony after giving the jury a limiting instruction. Defendant now argues that the courts admission of this incidentas well as its admission of the experts opinion to the extent that it was based on this incidentwas prejudicially erroneous with respect to both the gang charge and the gang enhancement. The fact that the alleged conduct happened after the shooting charged in this case rendered the testimony inadmissible, he claims. He contends that the admission of this testimony violated his constitutional right to due process of law and was improper under the Evidence Code.

Defendant relies primarily on People v. Godinez (1993) 17 Cal.App.4th 1363 (Godinez). Godinez was convicted of attempted murder and conspiracy to commit murder. His sentence was enhanced pursuant to section 186.22, subdivision (b). The Court of Appeal reversed the enhancement, holding that the evidence was insufficient to prove a pattern of criminal gang activity as required by the definition of criminal street gang in section 186.22, subdivision (f). Because the predicate crimes submitted to establish the pattern in this case all occurred after the charged crimes, the criminal street gang enhancement cannot be upheld, the court stated. (Godinez, supra, 17 Cal.App.4th at p. 1365.) It reasoned that if proof of the gangs existence is based on events taking place after the crime for which the defendant is receiving an enhanced sentence, then the prosecution has not shown that the gang existed when the defendant committed the crime. This in turn means the defendant could be deprived of due process because he might have lacked notice that the crime fell within the gang-enhancement statute. (Id. at pp. 1368-1370.)

Godinez does not support defendants position. The People in this case presented evidence of two predicate offenses predating the currently charged offenses: the 2001 cocaine offense and the 1999 handgun case. These eliminate the due-process concerns addressed in Godinez. Since it was shown, via these two predicate offenses, that there was a preexisting pattern of criminal gang activity at the time of the shooting, the Godinez courts concern about lack of notice is not applicable here. There was a third incident later and the jury heard about it, but this did not somehow retract the notice of the gangs existence that arose from the earlier predicate offenses.

Further, the post-shooting incident was relevant to proving the prosecutions case. Godinez did not hold that gang activity taking place after a currently charged offense is irrelevant to all issues arising from an information containing allegations under section 186.22, subdivisions (a) and (b). It only held that, for purposes of a section 186.22, subdivision (b), enhancement, a pattern of criminal gang activity must be proved by two or more predicate offenses occurring before the currently charged offense. This is a part of the proof of the gangs existence. Section 186.22, subdivisions (a) and (b), have many elements that have nothing to do with proving the gangs existence. In this case, the post-shooting incident was relevant to showing that defendant was an active participant in the gang, that he knew its members engaged in a pattern of criminal gang activity, and that he willfully promoted, furthered, or assisted in felonious criminal conduct by gang members, all within the meaning of section 186.22, subdivision (a). Defendants continued association with the gang, as evidenced by the post-shooting incident, might also have been relevant to proof of the enhancement under subdivision (b), since it could help to show the specific intent with which he committed the shooting.

Defendant contends that, even if the evidence of the post-shooting incident were admissible, it should have been excluded under Evidence Code section 352. Otherwise-admissible evidence should be excluded under Evidence Code section 352 if its probative value is substantially outweighed by the probability that its admission will  create substantial danger of undue prejudice . (Evid. Code,  352.) The decision whether to admit or exclude evidence under Evidence Code section 352 is committed to the discretion of the trial court. (People v. Clair (1992) 2 Cal.4th 629, 655.)

The prejudicial effect of the evidence, if any, would not be great. As we have just explained, the post-shooting incident was relevant to a number of elements of the prosecutions case. The probative value of the evidence was significant.

The details of the incidentthe admission of gang membership, the association with fellow gang members, the presence of a gunwere similar to the details of other incidents about which the jury heard. Despite this, defendant claims the incident was highly prejudicial because the jury might have relied on it, instead of on one of the two earlier incidents, in finding the two predicate offenses that established the pattern of criminal gang activity. This, in turn, would implicate the due-process problem at issue in Godinez. We do not see this as a substantial concern in this case. The existence of the two earlier incidents was not contested; certified court documents showing the convictions were admitted into evidence, and nothing in the record undermined the experts opinion that they were gang-related. The trial court did not abuse its discretion in finding that the prejudicial effect did not substantially outweigh the probative value.

Lastly, defendant argues that the admission of this evidence violated the ban set forth in Evidence Code section 1101, subdivision (a), on using character evidence to prove conduct on a specified occasion. Defendant is mistaken. Evidence Code section 1101, subdivision (b), provides: Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ) other than his or her disposition to commit such an act. As we have explained, the post-shooting incident was relevant to prove facts of this kind and to support the experts opinions regarding defendants gang participation. It was not evidence of bad character admitted to prove defendants conduct on some other occasion.

For all these reasons, we reject the view that the evidence regarding the incident in November 2005 was inadmissible. Its admission was consistent with Godinez, did not violate defendants right to due process of law, and did not constitute an abuse of the trial courts discretion under Evidence Code sections 352 or 1101.

IV. Blakely/Cunningham

Defendant argues that the imposition of upper terms for counts one, three, and four and for the gun enhancement violated the Sixth Amendment as interpreted in Blakely, supra, 542 U.S. 296 and Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. Our Supreme Courts recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II) is dispositive of this issue and requires affirmance.

In Blakely, the United States Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendants Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with deliberate cruelty and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 301.) It did not matter that the offense was a class B felony and that class B felonies carried a maximum sentence of 10 years; the states sentencing law did not allow the sentence to exceed 53 months without judicial factfinding. Our precedents make clear that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Id. at p. 303.) The court continued:

In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, [citation], and the judge exceeds his proper authority. (Blakely, supra, 542 U.S. at pp. 303-304.)

On January 22, 2007, the United States Supreme Court issued its decision in Cunningham, overruling People v. Black (2005) 35 Cal.4th 1238 and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law as it stood then^[5]was erroneous, therefore, unless it was supported by prior convictions, facts found by the jury, or facts admitted by the defendant.

After briefing was completed in this case, the California Supreme Court filed its opinion in Black II. It held that the upper term imposed in that case was not erroneous under Cunningham because it was authorized by the defendants prior offenses and the jurys finding that the defendant committed the offense by means of force and fear. (Black II, supra, 41 Cal.4th at pp. 816-817, 818.) Whether the trial judge would have imposed the upper term based on one of these factors alone was irrelevant; the question was only whether it could have done so under the sentencing law. It could: Californias determinate sentencing law allows the trial court to impose the upper term based on a single aggravating factor. Each of these two factors authorized the upper term independently under California law and each was independently established by means consistent with the Sixth Amendment as interpreted in Blakely and Cunningham. The presence of either one alone would have been sufficient to render the upper term constitutional. (Black II, supra, at pp. 813, 814-815, 820.)

Black II makes clear that the trial court need not have relied expressly on one of the factors approved by Blakely and Cunningham so long as one of those factors was present in the record and the court was aware of it. The trial court in Black did not assert at sentencing that it was using the defendants prior convictions as an aggravating factor in support of the upper term. Instead, it said it was imposing the upper term because of the nature, seriousness and circumstances of the crime. (Black II, supra, 41 Cal.4th at p. 816.) It also stated that it considered other aggravating circumstances set out in the district attorneys sentencing brief. These included the defendants criminal history. The probation report included defendants criminal history also. This was sufficient even though the trial court did not mention defendants criminal history explicitly. (Id. at p. 818.)

Further, where a factor properly established under the Sixth Amendment is present, the courts reliance on other factors that would not satisfy the Sixth Amendment on their own does not undermine the sentence:

[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, supra, 41 Cal.4th at p. 813.)

In light of all this, we conclude there was no constitutional error in the imposition of upper terms in the present case. Before hearing arguments, the court explained its tentative sentencing decision as follows:

Ive read and considered the probation officers report. I also have in mind the evidence and arguments that were presented at the trial .

[T]he [probation] report suggests that there are no circumstances in mitigation. And I could not think of any, either.

As circumstances in aggravation, they suggest that the crime involved great violence and great bodily harm. And thats almost inherent in the nature of the crimes that were committed by [defendant]. And so while that is a circumstance in aggravation, I am not prepared to give it great weight. And, also, I probably will be considering it in connection with the enhancement with regard to the use of a firearm.

I am prepared to find that his prior convictions as an adult have been numerous, and those are listed in page 3 going on through page 4 of the probation officers report. I am prepared to find that he was on misdemeanor probation at the time he committed this particular offense, and I am prepared to find that his prior performance on both misdemeanor, as well as felony probation, have been unsatisfactory given the fact that in the past he has violated the terms of his probation and has continued to reoffend. And, finally, I am prepared to find that this is probably an upper term with regard to the use given the nature of this particular offense.

After the parties made arguments, the court stated it was imposing sentence in accordance with these indications. It also discussed one of the prior offenses:

Ive found in going through the report that it was significant to me in connection with both the upper term, as well as the enhancement or the enhanced utilization of a firearm. Back in 1994, you will recall that he was convicted of a violation of Health and Safety Code section 11370.1, sub (a). He was in possession of cocaine and was armed with a .38-caliber firearm. And I also seem to recall that we kept that away from the jury; so they were not aware of that in deciding this particular case.

According to the probation report, defendants adult criminal record included five prior convictions in Kern County and three in Whatcom County, Washington. The Kern County convictions were for a 1993 violation of section 466 (possession of burglary tools); a 1993 violation of Bakersfield Municipal Code section 12.56.050(c) (illegal fire in a city park); a 1994 violation of Vehicle Code section 14601, subdivision (a) (driving with a revoked or suspended license); a 1994 violation of Health and Safety Code section 11370.1, subdivision (a) (possession of cocaine while armed with a loaded firearm); and a 2005 violation of section 148, subdivision (a)(1) (resisting a peace officer). The Washington convictions were for driving under the influence in 1994; felony theft in 1996; and possession of stolen property in 1997. The probation report reflects a violation of felony probation in 1996 and a violation of parole in 2001. At the time of the current offenses, defendant was serving three years of misdemeanor probation for the 2005 conviction of resisting a peace officer. The probation report states, over the trial judges signature, that the judge has read and considered it.

Under Black II, this record is amply sufficient to support the upper terms. Three of the aggravating factors the court relied on presupposed prior convictions: numerous prior adult convictions; probationary status at the time of the current offense; and unsatisfactory performance on prior probation. At least one of thesedefendants numerous prior convictions as an adultcannot meaningfully be distinguished from Blakelys formulation, approving the use of the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301) to increase a sentence. It would not make sense to say that the trial court is entitled to rely on one prior conviction but not on several. In fact, a report of numerous or increasingly serious prior convictions in the probation report and the prosecutors brief was just what the Supreme Court found adequate in Black II, rejecting the argument that this is not the same thing as the simple fact of a prior conviction:

Defendant contends he was entitled to a jury trial on the aggravating circumstance of his prior criminal history because, even if the trial court properly may decide whether a defendant has suffered a prior conviction, a jury must determine whether such convictions are numerous or increasingly serious. Defendant, however, reads the prior conviction exception too narrowly. (Black II, supra, 41 Cal.4th at p. 819.)

In sum: Because upper terms were authorized by defendants prior convictions, the court did not err under Blakely and Cunningham in imposing upper terms. We need not discuss the Peoples claim that defendant forfeited his claim by failing to assert it at the sentencing hearing.

DISPOSITION

The judgment is affirmed.

_____________________

Wiseman, J.

WE CONCUR:

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Vartabedian, Acting P.J.

_____________________

Levy, J.

^[1]All further statutory references are to the Penal Code unless otherwise noted.

^[2]Khmer is the name of a people of Cambodia and their language. (Websters New World Dict. (3d ed. 1988) p. 741.)

^[3]Hannon did not describe these crimes. Certified copies of court documents reflecting the convictions were admitted into evidence, but these are not included in the appellate record. Defendant does not contend that the crimes were not among the offenses that can constitute the primary activities of a criminal street gang or establish a pattern of criminal gang activity within the meaning of section 186.22.

^[4]Garcia also stated that the evidence was insufficient because it did not show a specific intent to promote other criminal conduct by the gang. As we explain, we reject the view that this showing is required.

^[5]It has since been amended in response to Cunningham. (Stats. 2007, ch. 3 [Sen. Bill No. 40]; see Black II, supra, 41 Cal.4th at p. 808, fn. 2.)