P. v. Perez

Filed 3/27/06 P. v. Perez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

A second amended information charged defendant with two counts of attempted premeditated and deliberate murder (Pen. Code, §§ 664 and 187, subd, (a), count one as to victim Greg Lodes, count two as to victim Juan Matthews), two counts of assault with force likely to produce great bodily injury or with a deadly or dangerous weapon (Pen. Code, § 245, subd. (a), count three as to victim Greg Lodes and count four as to victim Juan Matthews), and one count of street terrorism (Pen. Code, § 186.22, subd. (a), count five).

As to counts one through four, the information alleged that in the commission or attempted commission of the offenses, the defendant committed the crime for the benefit of, at the direction of, or in association with the "NORTENO CRIMINAL STREET GANG," with the specific intent to promote, further, or assist in any criminal conduct by gang members in violation of Penal Code section 186.22, subdivision (b)(1). Further, as to counts one through four, in the commission or attempted commission of the offenses, the defendant personally used a deadly or dangerous weapon, to wit a sharp instrument, within the meaning of Penal Code section 12022, subdivision (b). Finally, as to counts one through four, the information alleged that in the commission of the offenses the defendant personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, causing the offenses to be serious felonies under Penal Code section 1192.7, subdivision (c)(8).

Jury trial began on October 4, 2004. On October 8, the court granted defendant's motion to acquit him of the premeditated aspect of the attempted murder charge as to count one, but denied the motion as to count two.

As to counts one, two and three, the jury found defendant not guilty. As to counts four and five, the jury returned verdicts of guilty. As to the count four allegations, the jury found that defendant committed the crime for the benefit of a criminal street gang, but that he did not personally inflict great bodily injury.

On November 17, 2004, the court sentenced defendant to the upper term of four years for count four, plus five years for the street gang enhancement, and two years for count five to be served concurrent with count four.

Defendant filed a timely notice of appeal. On appeal, defendant raises six issues. First, he contends that he was deprived of due process under the federal Constitution when the trial court instructed the jury with CALJIC Nos. 5.54, 5.55 and 5.56. Second, the trial court erred in refusing to give a defense instruction that an earlier threat could justify reacting more quickly in self-defense. Third, "[a]dmission of emotionally charged propensity evidence of gang member characteristics . . . violated his federal constitutional right to due process." Fourth, admission of expert evidence that "profiled a gang member to fit [defendant], violated [his] federal constitutional rights to due process." Fifth, the trial court improperly admitted a gang expert's opinion respecting the ultimate issues of defendant's guilt and subjective intent. Finally, in the alternative, the sentence for the gang enhancement should be stayed under Penal Code section 654. For the reasons outlined in this opinion, we affirm the judgment. With defendant's issues in mind, we set forth the facts.

Facts and Proceedings Below

On the evening of March 28, 2003, approximately five young men including defendant and Silvino Ayala and Raul Lopez were "hanging out" drinking beer in the common area of the apartment building located at 1103 Sonoma Avenue in Seaside. Lopez was affiliated with Sureno gangs. He often wore the color blue. According to Lopez, the other members of the group, including defendant, were affiliated with the Nortenos, specifically, Vago Seaside Nortenos or VSN. They often wore the color red and associated with the numbers 14, one and four. The Nortenos were "rapping" about their "hood," "the name of their hood, people, strongness, power." Lopez rapped about his hood too. He rapped that he was "down for the blue, always act the fool." At trial, Lopez explained that meant he was saying he was a Sureno. He heard the word "scrap" and then defendant "socked" him.[1]

Lopez walked away and went to the apartment he shared with his parents in the complex. There, he got a kitchen knife, thought about stabbing defendant, but went back to the apartment's common area and threw the knife at a piece of wood a couple of times. Then, he put the knife back in the apartment.

Lopez went to the parking lot where he met Ayala and another person. They talked. Lopez walked across the street to 1122 Sonoma, where Albert Vasquez lives. The house is a "hangout" spot for the Hilby Brothers gang. They do not like Nortenos and sometimes associated with Surenos. Lopez saw Ayala about 45 or 50 feet behind him cross the street in the same direction. According to Ayala he went across the street to talk to the Hilby Brothers to settle things down regarding the incident between Lopez and defendant. He thought that Lopez was going across the street to get "back-up" after being hit by defendant. Ayala estimated there were 10–15 people around the house at 1122 Sonoma, including "Gerrardo," Juan Matthews and others who were Hilby Brothers.[2]

Lopez testified that he saw defendant walk down the stairs and go over to where Ayala was talking to the Hilby Brothers. One of the Hilby Brothers, Juan Matthews, left the group that was around the house at 1122 Sonoma and was met in the street by defendant. Matthews knew defendant and did not like him. The two men squared off and "mad dogged" each other. Matthews said things including "So what's up?" Matthews admitted that he was fortified with "courage juice," having drunk two 42-ounce bottles of English Malt Liquor.

According to Matthews, after staring, he took a step towards defendant and that is when he saw defendant was holding what he thought was a razor blade. A few seconds went by and defendant stabbed him. After he was stabbed he "couldn't move for a little bit." That was when Greg Lodes jumped in and attacked defendant, hitting him a few times in the face with his fist. Defendant stabbed Lodes.

Defendant ran back to the apartment complex and up the stairs as the Hilby Brothers gave chase. Defendant moved toward them swinging at them with a yellow "tracto blade" he was holding. According to one witness, Nortenos were yelling the words "Puro Norte" during the fighting.

Michael Bush, who was not a Hilby Brother, testified that Matthews was the aggressor in the verbal confrontation with defendant. Furthermore, before the fight, his friend Anthony Perry had confronted two "Mexicans" who were creeping from behind a white van. There was no fighting between them.

According to Ayala, earlier that evening he noticed the outline of a box cutter in defendant's pocket. On April 13, 2003, a police sergeant found a box cutter in the street behind the apartment complex.

Expert Testimony

Michael Kimball, a police sergeant and gang expert, testified about Seaside gangs. He explained that there are two gang structures in Seaside, Norteno and Sureno. Within the Norteno structure are gangs such as Northside Seaside, Varrio Seaside Nortenos, and Northern Locos. Under the Sureno structure are gangs such as La Maisalva Truche, Seaside Locos, and Hilby Brothers. He explained that the Nortenos and Surenos identify with different colors, tattoos, artwork, graffiti and the numbers 13 and 14.

Sergeant Kimball testified that the primary activities of the Nortenos criminal street gang are acts of violence, including fights, robbery, carjacking, attempted murder and murder as well as other acts not considered direct acts of violence such as burglary, theft, and assault with a deadly weapon. As to mad-dogging, Sergeant Kimball explained that it consists of a "stare–down," and in a gang member's eyes is a challenge to fight or sign of disrespect.

Sergeant Kimball elucidated that the Nortenos "strive to work together . . . for a common goal to get money, to get drugs and to fight who they perceive to be their enemy; which is the Surenos." Sergeant Kimball went on to explain that those gang members who acquire a weapon "usually gain a higher esteem within the gang membership, because they are either the holder of the weapon or acquired the weapon or have the willingness to use it. [¶] Definitely those who are willing to use it are considered within the gang membership as the forefront runners and people to be looked up to, somebody who is really dedicated to the gang. [¶] The gang member who uses a weapon not only uses it to commit the crimes, but it's part and parcel to that philosophy of if you fear me, you respect me. So it's to instill fear into not only the gang members, but the community to gain what they believe to be respect."

According to Sergeant Kimball, gang members perceive as signs of disrespect throwing rival hand signals, intrusions into gang territory and playing rival rap music in the presence of gang members.

Sergeant Kimball testified that he was personally familiar with defendant. He opined that defendant was an active member of the Norteno criminal street gang, based on factors listed in a gang certification sheet, and his review of police, booking and jail reports all specific to this case. In addition, defendant has admitted to being a gang member and associated with other gang members. He had a moniker, gang tattoos and prior contacts with law enforcement concerning gang related incidents in 1996, 1999 and 2001, which consisted of wearing gang attire, and carving gang graffiti.

Over defense objection, Sergeant Kimball testified that based on his investigation of the crime at issue in this case, he formed the opinion that the crime was committed for the benefit of, and in association with the Norteno criminal street gang. Sergeant Kimball based his opinion on the fact that "Norte was yelled. That it was adjacent to what we know as being Norteno territory" and that there was a person in the area singing Sureno rap music. Further, Sergeant Kimball testified that in his opinion the crime benefited the Norteno gang by showing the "community what lengths they're willing to go to."

Answering a hypothetical question propounded by the prosecutor,[3] Sergeant Kimball opined that the crime in the hypothetical was committed for the benefit of and in association with criminal Norteno street gang members. Further, Sergeant Kimball opined that the hypothetical gang member who committed the crime would have his gang reputation enhanced as well as the reputation of the gang.

On cross-examination Sergeant Kimball agreed that there is the benefit of survival for the individual who defends himself from attack and that people align themselves with groups and even sport tattoos, though they may not be active in a criminal street gang and not engage in any criminality. Furthermore, he agreed that mad-dogging and intimidation occur between rivals on and off the field in sports events.

Discussion

Instruction with CALJIC Nos. 5.54, 5.55, and 5.56

The defense requested some instructions on self-defense and imperfect self-defense. The trial court ruled that there was sufficient evidence presented through cross-examination of the People's witnesses to support an argument that the defendant acted in self-defense. The trial court gave instructions on self-defense including CALJIC Nos. 5.54, 5.55 and 5.56, which were requested by the prosecutor. Thus, the trial court instructed the jury on the circumstances when self-defense is available to an aggressor (CALJIC No. 5.54), that a plea of self-defense may not be contrived (CALJIC No. 5.55), and when self-defense is available to participants in mutual combat (CALJIC No. 5.56). Defense counsel did not object to the giving of these instructions.

Defendant argues that it was error to instruct on the circumstances when self-defense is not available to an aggressor because the evidence showed that Juan Matthews was the aggressor. Similarly, defendant argues that it was error to instruct that self-defense may not be contrived because there was no evidence that he instigated the quarrel with Matthews. Likewise, defendant argues it was error to instruct on the circumstances when self-defense is available to participants in mutual combat because Matthews was the aggressor and initiated the assault.

Thus, essentially, defendant argues that facts of this case did not support the giving of these instructions. Defendant maintains that the error was not harmless because "[t]he plain effect of the instructions was to advise the jury to disregard [his] claim of self-defense if it was determined that he had initiated the aggression, initiated a 'quarrel,' or engaged in mutual combat." Relying on People v. Conkling (1896) 111 Cal. 616, 626, defendant argues the instructions were "utterly inconsistent with the whole theory of self-defense."

Initially, we note three things. First, even absent a request, a trial court must instruct on general principles of law raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Second, defendant does not contend that the instructions given were incorrect statements of the law. Third, we are mindful of the trial court's superior ability to evaluate the evidence and determine which issues to submit to the jury. " 'A trial judge's superior ability to evaluate the evidence renders it highly inappropriate for an appellate court to lightly question his [or her] determination to submit an issue to the jury. A reviewing court certainly cannot do so where, as here, the trial court's determination was agreeable to both the defense and the prosecution.' " (People v. Olguin (1994) 31 Cal.App.4th 1355, 1381.)

Issues related to the right of self-defense, including whether the circumstances would cause a reasonable person to perceive the necessity of self-defense, whether the defendant himself acted out of self-defense, whether defendant provoked a quarrel with the intention of creating a real or apparent need for self-defense, and whether the force used was excessive, are normally questions of fact to be decided by the trier of fact. (People v. Clark (1982) 130 Cal.App.3d 371, 378; People v. Holt (1944) 25 Cal.2d 59, 66.) Accordingly, it was for the jury to determine, for example, whether defendant by "mad dogging" Juan Matthews provoked the quarrel with the intention of creating a real or apparent need for self-defense.

Moreover, the trial court instructed the jury with CALJIC No 17.31, which provides, "The purpose of the Court's instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given, I'm expressing an opinion as to the facts." Generally, we presume that jurors follow the court's instructions. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)

In reviewing defendant's claims of instructional error, we conduct an independent review. (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.)

There was evidence that defendant and Juan Matthews were "mad dogging" each other before defendant stabbed Matthews. Matthews started to get "a little closer" and he saw what he thought was a "razor blade" in defendant's right hand. Matthews never raised his fists, yet defendant pulled a box cutter from under a beanie and cut Matthews twice. Notwithstanding the fact that Matthews admitted that he wanted to fight defendant, a reasonable interpretation of this evidence is that defendant initiated an altercation with Matthews, having prepared himself with a box cutter, in order to have the opportunity to stab Matthews. That is, even though Matthews admitted that he wanted to fight defendant, a jury could still have concluded that defendant was the aggressor. Certainly, this evidence supports the giving of CALJIC. Nos. 5.54, 5.55 and 5.56.

Furthermore, as the Attorney General points out, the jury acquitted defendant on the charges of attempted murder and assault with a deadly weapon against Greg Lodes, and acquitted defendant of the charge of attempted murder of Juan Matthews. As defendant recognizes, the jury must have decided that the facts justified him acting in self-defense against Lodes. Thus, by his own admission, the defendant's assertion that the challenged instructions "severely restricted, to the point of eliminating the defense theory of the case" is specious. Accordingly, we reject defendant's first assignment of error.

Refusal to Give a Defense Requested Instruction

As an alternative to his first argument, defendant contends that his federal constitutional rights were violated because the trial court refused to give an instruction that a previous threat could justify him acting more quickly in self-defense.

Defense counsel requested that the court instruct with a modified version of CALJIC No. 5.50.1 as follows: "Evidence has been presented that . . . the alleged victims or their associate threatened/assaulted the defendant on prior occasions. If you find that this evidence is true, you may consider it in determining whether the defendant actually and reasonably believed his life or physical safety was endangered . . . In addition, a person whose life or safety has been previously threatened or assaulted by another is justified in acting more quickly and taking harsher measures for self-protection from an assault."

Defendant contends that the trial court's failure to give this instruction created an unfair balance in favor of the prosecution because of the other instructions (CALJIC Nos. 5.54, 5.55 and 5.56) given at the prosecution's request.

Reviewing courts in this state have found it was error for a trial court to reject a defendant's request for an instruction on antecedent threats when there is evidence of such threats. (See e.g. People v. Moore (1954) 43 Cal.2d 517, 526-527, 529; People v. Pena (1984) 151 Cal.App.3d 462, 474-475; People v. Bush (1978) 84 Cal.App.3d 294, 302-304.)

In People v. Pena, supra, 151 Cal.App.3d at page 475, the Second District Court of Appeal undertook a review of several cases that addressed the necessity to proffer an instruction on antecedent threats. The court concluded, "[f]rom them it is apparent that an instruction on the effect of antecedent threats known by a defendant is required where evidence establishes both threats of death or great bodily harm made by the [victim] against the defendant and the defendant's belief and reliance thereon as influencing or justifying his actions." (Italics added.)

Our review of some of these same cases confirms that there was substantial uncontradicted evidence or previous threats or assaults by the victim against the accused. (People v. Moore, supra, 43 Cal.2d at p. 528 ["ample evidence" of prior threats]; People v. Bush, supra, 84 Cal.App.3d at p. 304 ["defendant's testimony was uncontradicted that, in the course of two prior beatings, her husband had threatened to put her in her grave"]; People v. Pena, supra, 151 Cal.App.3d at pp. 470, 476 [there was uncontradicted evidence of prior threats and direct testimony that the victim had threatened the defendant and that defendant was personally aware of the threats].)

Here, contrary to defendant's assertions,[4] there was no evidence of antecedent threats or assaults. Thus, based on the principles articulated in the foregoing cases, we conclude that it was not error for the trial court to refuse to instruct the jury with a modified version of CALJIC No. 5.50.1. The court was under no duty to give an instruction based on a theory for which no substantial evidence was presented at trial. A trial court need only give those requested instructions supported by substantial evidence. "If the evidence should prove minimal and insubstantial . . . the court need not instruct on its effect." (People v. Flannel (1979) 25 Cal.3d 668, 684, fn. omitted, superseded by statute as stated in In re Christian S. (1994) 7 Cal.4th 768, 777.)

Gang Evidence

Defendant contends that the admission of "emotionally charged propensity evidence of gang member characteristics and prior acts that had no clear nexus to the assault charged, but which unfairly undermined [his] defense of self-defense, rendered the trial fundamentally unfair and violated his federal constitutional right to due process."

Defendant asserts that the "propensity evidence consisted of the gang expert's testimony that the gang's characteristics and traits were of violence and aggression as shown, inter alia, by past actions and that [he] was an active gang member, who in the alleged assault was acting for the benefit of the gang."

Essentially, defendant argues that the admission of the gang testimony coupled with the court instructing the jury with CALJIC No. 6.50 and 17.42.2[5] permitted the jury to use the prior acts and character evidence to infer guilt in the assault of Juan Matthews, undercutting his defense of self-defense. Specifically, he argues that the instructions "directed the jury to consider the expert opinion offered and the evidence of the past or present conduct by gang members in determining whether [he] committed the assault for the benefit of the gang and with the specific intent to promote and assist the gang." Thus, he points out "[t]he implicit inference [from this] is that if the jury used the past bad acts of the gang to conclude that [he] committed the assault to benefit the gang with the requisite specific intent, he could not have been acting in self-defense." Consequently, he argues, "the jury was permitted to use the prior acts and character evidence to infer guilt of the assault of Juan Matthews."

At the outset, we reject defendant's assertion that the testimony of Sergeant Kimball was propensity evidence. Evidence Code section 1101 states in relevant part: "(a) . . . evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."

We find nothing in Sergeant Kimball's testimony where he testified to evidence of defendant's character or a trait of his character.

A gang expert may testify on matters that are sufficiently beyond common experience, such as gang territories, culture, practices, and habits, if such testimony would assist the trier of fact. (See Evid. Code, § 801, subd. (a); People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Valdez (1997) 58 Cal.App.4th 494, 506.)

Moreover, such testimony is admissible even if it encompasses ultimate issues in a case. (Evid. Code, § 805; People v. McDonald (1984) 37 Cal.3d 351, 371, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914; People v. Valdez, supra, 58 Cal.App.4th at p. 508; see, e.g., People v. Gardeley, supra, 14 Cal.4th at p. 619 [gang expert testimony admissible to prove current offense was committed to benefit gang and with intent to promote gang interests]; People v. Gamez (1991) 235 Cal.App.3d 957, disapproved on other grounds in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10 [membership in a gang].)

"[T]here is no hard and fast rule that experts may not be asked questions that coincide with the ultimate issue in the case, and that the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large measure of discretion involved. We believe further that the modern tendency is against making a distinction between evidentiary and ultimate facts as subjects of expert opinion." (People v. King (1951) 104 Cal.App.2d 298, 304.)

"[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would 'assist' the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when 'the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness' [citation]." (People v. McDonald, supra, 37 Cal.3d at p. 367.) The trial court has discretion to determine whether an opinion passes this test. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.)

A trial court is vested with wide discretion in determining the admissibility of evidence. The court's exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse of that discretion, that is, unless the trial court's decision exceeds the bounds of reason. (People v. Olguin, supra, 31 Cal.App.4th 1355, 1369.)

As noted, matters beyond the common experience of jurors, such as the culture and habits of criminal street gangs, are properly the subjects of expert testimony. (People v. Gardeley, supra, 14 Cal.4th at p. 617 (Gardeley).) As the Gardeley court noted, those matters are "of particular relevance" where there is an allegation that the crime was " 'committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .' " (Id. at p. 617; Pen. Code, § 186.22, subd. (b)(1) .)

As this court has explained: "[O]pinion 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.] Expert testimony of such a nature was held sufficient to satisfy the 'primary activities' element of section 186.22 [, subdivision] (f) in [various California appellate decisions]." (People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9; see also People v. Duran (2002) 97 Cal.App.4th 1448, 1465.)

Unquestionably, here, Sergeant Kimball's testimony concerning the culture, habits, actions, membership, territorial claims, and disputes involving Norteno gangs in Seaside, was relevant, at minimum, to issues related to the gang enhancement. Further, Sergeant Kimball's testimony was relevant and admissible on such gang-enhancement issues as establishing that VSN was a criminal street gang within the meaning of section 186.22, subdivision (f), that defendant was a VSN member, and that the charged crime was "committed for the benefit of, at the direction of, or in association with any criminal street gang." (Pen. Code, § 186.22, subd. (b)(1).)

As our Supreme Court has explained: "[T]he criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense." (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) To the extent that admission of evidence concerning the operation of Norteno street gangs and the nature of their criminal activities was, as defendant claims "highly inflammatory," this aspect was a necessary consequence of any evidence that might be submitted to support a gang allegation. It does not make the evidence inadmissible. (But see People v. Avitia (2005) 127 Cal.App.4th 185, 192-193 [evidence of gang posters in the defendant's room erroneously admitted, where no allegation that crime was gang-related and no gang enhancement was alleged].)

However, even admissible evidence may be excluded under Evidence Code section 352 when its probative value is substantially outweighed by its prejudicial effect. (Evid. Code, § 352.)

Here, defendant argues, Sergeant Kimball went too far by testifying that " 'the gang member who uses a weapon not only uses it to commit the crimes, but it's part and parcel [of] that philosophy of if you fear me, you respect me. So it's to instill fear into not only the gang members, but the community to gain what they believe to be respect.' This attributed to [defendant], an undisputed gang member who used a weapon, a specific intentionality in the use of [the] box-cutter in the incident that contradicted his defense of self-defense. There is no expert that [defendant] could call to neutralize such a prejudicial theory."

The problem that we have with defendant's argument is that the jury did acquit him of all the counts involving victim Greg Lodes. The evidence to support defendant's "self-defense defense" in the assault on Juan Matthews was extremely weak. Defendant and Matthews were mad dogging each other. Before Matthews could even raise a fist, let alone a weapon, defendant stabbed him twice in the chest. Given this, we find no merit in defendant's argument that his trial was fundamentally unfair and violated his federal constitutional right to due process.

In a second line of attack on Sergeant Kimball's gang evidence, defendant contends that the admission of expert evidence that profiled a gang member to fit him violated his federal due process rights.

Defendant relies on cases that prohibit the use of profile evidence to implicate a defendant merely because he fits the profile of the type of person who commits a particular crime.

The cases that have discussed profile evidence tend to treat it as unique or in a class of its own. However, we regard it as one facet of the larger topic of expert testimony.

As defendant points out, the use of "profile evidence" endangers a defendant's right to be tried based on evidence tying him to the specific crime charged and not on general facts accumulated regarding a particular criminal profile. (People v. Castaneda (1997) 55 Cal.App.4th 1067, 1072.)

Defendant argues that in this case the "profile was tailored to strongly imply that such a gang member would have acted as the aggressor in the incident giving rise to the assault charged in the instant case, and would not have been acting purely in self-defense. Once Kimball identified [him] as an active gang member, he [Kimball] eased the way for the jury to fit [him, defendant] neatly into the profile of the aggressor that Kimball's testimony created. In this way the profile testimony lessened the prosecutor's burden to prove the state's case beyond a reasonable doubt."

Again, we find a problem with this argument. That is the "profile" of a gang member being the aggressor would apply equally to the victim Juan Matthews. Matthews admitted that he was a Hilby Brother and Sergeant Kimball testified that the Hilby Brothers were a gang aligned with the Surenos.

As this court acknowledged in People v. Valdez, supra, 58 Cal.App.4th at pages 507-508, since the decision in People v. Wilson (1944) 25 Cal.2d 341, 349-350, opinion testimony "is not objectionable because it embraces the ultimate issue to be decided by the trier of fact" (Evid. Code, § 805), so long as it is otherwise admissible. Expert opinion is rarely objectionable for invading the province or usurping the function of the jury or otherwise taking over the jury's role.

Furthermore, the court instructed the jury that they were the sole judges of the believability of a witness (CALJIC No. 2.20; Pen. Code, § 1127), that they were not bound by an expert's opinion, but should give it the weight it deserves based on the underlying reasoning (CALJIC No. 2.80; Pen. Code, § 1127b), and that they should consider whether a hypothetical question incorporated facts that the jury later found to be unproved (CALJIC No. 2.82).

Accordingly, again we find no merit in defendant's argument that his due process rights were violated.

In a third line of attack on Sergeant Kimball's testimony, defendant contends that the "trial court improperly admitted the expert's opinion evidence respecting the ultimate issue of his [the defendant's] guilt and subjective intent." Yet, defendant concedes that otherwise admissible expert testimony that embraces the ultimate issue to be decided by the trier of fact is admissible. As noted earlier in this opinion, testimony "is not objectionable because it embraces the ultimate issue to be decided by the trier of fact," so long as it is otherwise admissible. (People v. McDonald, supra, 37 Cal.3d at p. 371.) Since we have concluded the expert witness testimony was admissible on the issue of whether the crime was committed for the benefit of, at the direction of, or in association with any criminal street gang, we must reject defendant's contention on this point.

With regard to defendant's subjective intent, he argues that when Sergeant Kimball testified that the "gang member who uses a weapon, does so to instill fear and gain respect, he was simply telling the jury of his belief that [defendant] used the weapon with planning and intentionality, and not as a result of a reasonable, actual belief that it was necessary to protect his own safety. In short, Kimball was telling the jury of his belief that [he, defendant], was not acting in self-defense."

We disagree that by telling the jury that a gang member who uses a weapon does so to instill fear and gain respect is tantamount to telling the jury that defendant was not acting in self-defense. The problem with defendant's argument, as noted above, is that if he were correct, it would apply equally to the counts for which the jury acquitted him. Accordingly, we reject defendant's contention on this point.

Sentencing Error

Defendant contends the sentence for the gang enhancement (Pen. Code, § 186.22, subd. (b)) should be stayed under Penal Code section 654 because the gang enhancement imposed in connection with count four involves virtually the same elements as the gang crime charge (Pen. Code, § 186.22, subd. (a), count five), both being predicated on the assault. Further, he argues that failure to stay the sentence violates his federal due process rights.

Penal Code section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."

It is well established that Penal Code section 654 precludes double punishment for crimes committed during an indivisible course of conduct that were incident to a single intent and objective. " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished . . . not for more than one [of the offenses].' [Citation.]" (People v. Latimer (1993) 5 Cal.4th 1203, 1208, quoting Neal v. State of California (1960) 55 Cal.2d 11, 19.) In addition, it is well established that the imposition of a concurrent sentence constitutes double punishment prohibited by section 654. (People v. Deloza (1998) 18 Cal.4th 585, 594.)

The question of whether the defendant held multiple criminal objectives is one of fact for the trial court. If supported by substantial evidence, we must sustain the trial court's factual findings on appeal. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)

Penal Code section 186.22, subdivision (a) provides in relevant part: "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." In contrast, subdivision (b) of section 186.22 is an enhancement that creates additional punishment for anyone who commits a felony for the benefit of, at the direction of, or in association with a street gang. Relevant here, subdivision (b) states: "Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she is convicted, be punished as follows: . . . [¶] (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years."

As one court has explained, Penal Code "[s]ection 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang." (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467, fns. omitted.)

The gang enhancement, on the other hand, imposes additional punishment for a felony committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (Pen. Code, § 186.22, subd. (b)(1).)

Based on the evidence in this case, the trial court could reasonably have concluded that independent of his intent to participate in a gang, defendant harbored the separate, albeit simultaneous, intent to benefit his gang when he assaulted Juan Matthews. In fact, as the gang expert explained, in carrying out this crime defendant was not just participating in the gang lifestyle, he was benefiting his gang by furthering its reputation for violence and toughness. That alone is sufficient justification to impose separate punishment under subdivisions (a) and (b) of Penal Code section 186.22. (See People v. Herrera, supra, 70 Cal.App.4th at p. 1465.)

The intents and objectives at issue in the gang enhancement and substantive gang offense may have been simultaneous, but they were nevertheless independent of one another. Looking to defendant's intent and objective with respect to the crime and the enhancement, we conclude that the sentence should stand.

Disposition

The judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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MIHARA, J.

[1] Defendant hit him on the left side of his face with a closed fist.

[2] Ayala testified that as he was walking back across the street, he was hit from behind and blacked out. He was hit more that once. His head was injured and bleeding. He heard someone say, "It's not him." Somebody helped him back to the apartment complex. Later, the police followed the trail of blood to the apartment where he was taken. It is not clear from the record exactly when this happened in relation to the stabbings.

[3] The hypothetical mirrored the facts of this case.

[4] Defendant argues that evidence of the antecedent threat came from a witness who saw a friend confront defendant and another man behind a white van. The threat was continued when Juan Matthews confronted defendant " 'about his past situation with the guy.' " Our review of the relevant sections of the record indicate that even if one of these men was defendant, nothing was said by either side that could be construed as a threat and no fight took place. As to Matthews's "past situation with the guy," we find nothing in the record to indicate that Matthews had threatened defendant in the past.

[5] The court instructed the jury as follows: "[D]efendant [is] accused in Count 5 of having violated Section 186.22, subdivision (a), of the Penal Code, a crime. Every person who actively participates in any criminal street gang with knowledge that the members are engaging in or have engaged in a pattern of criminal gang activity and who willfully promotes, furthers, or assists in felonious criminal conduct by members of that gang is guilty of a violation of Penal Code 186.22, subdivision (a), a crime. Pattern of criminal gang activity means the conviction of two or more of the following crimes, namely attempted murder, assault with a firearm, threat of violence, robbery or murder. 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. [¶] Criminal street gang means any ongoing organization, association, or a group of three or more persons, whether formal or informal, 1, having as part of its primary activities the commission of one or more of the following criminal acts. Murder, robbery, assault with a deadly weapon, threat of violence. 2, having a common name or common identifying sign or symbol. And 3, whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. [¶] The phrase 'primary activities,' means that the commission of one or more of the crimes identified in this instruction, be one of the group's chief or principal occupations. This would of necessity exclude the occasional commission of the identified crimes by the group's members. In determining this issue you should consider any expert opinion evidence offered, as well as evidence of past or present conduct by gang members involving the commission of one or more of the identified crimes, including the crimes charged in this proceeding. [¶] Active participation means that the person must have a relationship with the criminal street gang that is more than in name only, passive, inactive or purely technical. Felonious criminal conduct includes attempted murder, attempted voluntary manslaughter, assault by means [of force] likely to produce great bodily injury or with a deadly weapon. 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 attempted murder, attempted voluntary manslaughter, or assault by means of force likely to produce great bodily injury or with a deadly weapon." Similarly, the court instructed as follows: "It is alleged in Counts 1 and 2 and the lesser offenses thereto, and in Counts 3 and 4, that the crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."

"Criminal street gang means any ongoing organization, association or group of three or more persons, whether formal or informal, 1, having as one of its primary activities the commission of one or more of the following criminal acts, murder, robbery, assault with a deadly weapon, threat of violence; 2, having a common name or common identifying sign or symbol; and 3, whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

" 'Pattern of criminal gang activity' means the commission of . . . or conviction of two or more of the following crimes. Namely, attempted murder, assault with a firearm, threat of violence, robbery or murder. Providing 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 were committed on separate occasions or by two or more persons. The phrase 'primary activities,' as used in this allegation, means that the commission of one or more of the crimes identified in the allegation, be one of the group's chief or principal occupations. This would of necessity exclude the occasional commission of identified crimes by the group's members. [¶] In determining this issue you should consider any expert opinion evidence offered as well as evidence of the past or present conduct by gang members involving the commission of one or more of the identified crimes, including the crimes charged in this proceeding. The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. Include a special finding on that question, using the form that will be supplied to you. [¶] The essential elements of this allegation are, 1, the crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang. And 2, the crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members."