P. v. Williams

Filed 6/19/07 P. v. Williams CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Wayne Ellison, Judge.

David R. Mugridge for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Leron Get Low Williams and codefendant Shannon S. Senegal were convicted of the first degree murder of Michael McGhee, and attempted murder of his brother, Anthony Beard, with enhancements for committing the offenses for the benefit of a criminal street gang and personally discharging a firearm causing great bodily injury or death. On appeal, Williams challenges the sufficiency of the evidence for his convictions and the gang enhancements, and also raises various constitutional challenges to the gang enhancements. We will affirm.^[1]

STATEMENT OF THE CASE

On June 2, 2005, an information was filed in the Superior Court of Fresno County charging appellant Leron Williams and codefendant Shannon Shamar Senegal with count I, murder of Michael Pierre McGhee (Pen. Code,^[2] 187, subd. (a)), and count II, attempted murder of Anthony Beard ( 187/664). As to both counts, it was alleged Williams and Senegal personally discharged a firearm causing great bodily injury or death ( 12022.53, subd. (d)) and the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). Williams and Senegal pleaded not guilty and denied the allegations.

On January 24, 2006, Williamss and Senegals joint jury trial began. On February 1, 2006, the court granted the prosecutions motion to amend the information to conform to proof, and modified the firearm enhancement as to both Williams and Senegal, to reflect a principal discharged a firearm and caused great bodily injury or death in the commission of counts I and II, pursuant to section 12022.53, subdivision (e). The court denied Williamss and Senegals motions for acquittal.

On February 3, 2006, Williams and Senegal were found guilty of count I, first degree murder, and count II, attempted murder, and both enhancements were found true.

On June 2, 2006, Williams filed a motion for new trial, which was joined by Senegal. On June 5, 2006, the prosecution filed opposition. On June 8, 2006, Williams filed a reply to the opposition.

On June 16, 2006, the court denied Williamss and Senegals motion for new trial. As to both Williams and Senegal, the court denied probation, imposed aggregate terms of 50 to life: as to count I, first degree murder, the indeterminate term of 25 years to life, with a consecutive indeterminate term of 25 years to life for the firearm enhancement; as to count II, attempted murder, 25 years to life, plus 25 years to life for the firearm enhancement, with the terms for count II to run concurrent to the terms imposed for count I.^[3]

On August 11, 2006, Williams filed a timely notice of appeal.

FACTS

On the afternoon of October 9, 2004, family and friends gathered for a barbecue in the front yard of Johnnie Mae Carters house on South Bardell in Fresno. They were celebrating the recent release from prison of Ms. Carters two sons, Michael McGhee and Anthony Beard. Ms. Carters daughter, Chermane Nutt, lived at the house and was present for the party, along with numerous cousins, nieces, and nephews.

Beard was associated with a prison gang, known as Kumi/415, and family members were associated with the local U-Boys gang. The Weller Street Boys was a rival gang to the U-Boys, with their turf located just one street away from South Bardell.

Just as Beard arrived at his mothers house, Trinell Petee Beasley drove up in his black Mustang and stopped in front of Ms. Carters house. Petee remained in his car but greeted Beard and said, oh, look who they let out. They let you out. Petee and Beard briefly talked, and then Petee drove away. At about the same time, Ms. Nutt left the house and went to her sons high school to deliver his football cleats, and then returned to the house and rejoined the barbecue.

Beard and McGhee visited with the other guests in their mothers front yard. About 10 to 15 minutes after Petee left, Beards cousin asked if he knew some guys on the street. Beard had been leaning against a car, with his back to the street. He turned around and saw three men standing south of the house, on the corner of South Bardell and Belgravia. The men were wearing sweatshirts with the hoods on their heads, and they were walking toward the house at a regular pace. Beard turned away and resumed visiting with his family.

Less than one minute later, the three men arrived at Ms. Carters front gate. Two men were wearing black sweatshirts, and one man was wearing a red sweatshirt. The men pulled guns and fired at the group in the front yard, and Beards cousin shouted for everyone to get down. Beard was still leaning against the car, with his side to the front gate. He turned around and saw the three men firing their weapons. They were standing side-by-side and did not say anything as they fired. Beard fell to the ground and tried to take cover. Michael McGhee, Beards brother, grabbed his neck and also fell to the ground. The three gunmen fired lot[s] of shots and fled on foot.

Beards mother and sister were inside the house when the shooting occurred. They thought they heard firecrackers and ran outside. The young nieces and nephews were running and screaming. Ms. Carter ran to Beards side, and Beard said he was hit and he was worried about his brother, McGhee.

Beard suffered gunshot wounds in his right side, left thigh, and the right shin below the knee. Beard was taken to University Medical Center and treated for his wounds. Beards brother, Michael McGhee, suffered multiple gunshot wounds to his chest and neck, and died that day from his wounds.

The police found numerous shell casings at the scene of the shooting, consisting of nine millimeter and .45-caliber ammunition, indicating at least two different weapons were used. Based on the location of the casings, the shots were fired either from the sidewalk or the street, toward the house. The police served search warrants on several individuals associated with the Weller Gang and recovered numerous weapons, but the guns used in the shooting were never located.

The Initial Investigation

Fresno Police Detective Richard Byrd arrived at Ms. Carters house just after the shooting and started the investigation by interviewing Ms. Carter. Ms. Carter stated that after the shooting, Beard told her that Shannon Senegal was one of the gunmen.

Later on the night of the shooting, Detective Byrd interviewed Beard in the emergency room at University Medical Center. Beard was on a gurney and being treated for his wounds. He was a little groggy but able to respond to Byrds questions. Beard told Byrd that Senegal was the gunman in the red sweatshirt, he did not know who the other two gunmen were, but he thought he could probably identify them from photographs. Beard also said he could not tell who actually fired the guns, but he was adamant that Senegal was there.

On October 10, 2004, the day after the shooting, Detective Byrd again interviewed Beard at the hospital. Beard was more alert than the previous day. He said he saw Senegal pull a gun, but he did not know who the other two gunmen were.

On October 28, 2004, Detective Byrd interviewed Beard at the police department. Beard admitted being a drug user but denied membership or association with any gang. Beard admitted members of his family were members of the U-Boy gang. Byrd showed Beard seven different photographic lineups. Beard identified Senegal as a gunman, and said he looked directly at Senegal. Byrd testified that Beard never wavered in his identification of Senegal.

Detective Byrd had received information that one of the Thomas twins, either Adavier or Atavier, might have been one of the gunmen. Byrd determined that Adavier was in custody on the day of the shooting, so he included Ataviers photograph in the lineups. Beard selected Ataviers photograph as a Weller gang member. As their conversation continued, Beard said he heard one of the Thomas twins was present at the shooting, but he could not distinguish between the twins and said he never actually saw one of the twins at the scene.^[4]

Detective Byrd continued to show Beard the photographic lineups. Beard identified Leron Get Low Williams as being with Senegal during the shooting and said he was positive Williams was there, Williams was one of them for sure, but he was not sure if Williams had a gun. This was the first time that Beard said Williams was involved. Beard said he knew Williams because he used to buy drugs from him. Detective Byrd asked why Beard failed to previously mention Williams. Beard replied that he heard rumors on the street that Get Low was involved, and after hearing these rumors it all registered to me that Williams was there. Beard also told Detective Byrd that he did not want to testify because he was afraid of what might happen to him and his family. And he kind of put it in the terms of, you know, the gang thing.

Detective Byrd testified Beard recognized some of the other individuals in the photographic lineups as being associated with the Weller Street area, but Beard said those particular individuals were not involved in the shooting.

Ms. Nutts First Statement

On either November 2, 2004 or December 2, 2004, Detective Byrd conducted a tape-recorded interview with the victims sister, Chermane Nutt. Ms. Nutt stated that prior to the shooting, Petee arrived at Ms. Carters house in his black Ford Mustang and briefly spoke to Beard. Ms. Nutt stated Petee drove away, and she left the barbecue and took her sons cleats to the high school. As she returned to her mothers house, she noticed Petees black car was stopped next to a small brown car on a nearby street, and the occupants of the two vehicles were talking to each other. Ms. Nutt stated there were four people in the small brown car: the driver was Leron Get Low Williams; the passengers were Shannon Senegal; one of the Thomas twins (either Adavier or Atavier), but she could not tell them apart; and an unknown male.

Ms. Nutt stated she returned to her mothers house, and the shots were fired two or three minutes later. Ms. Nutt said she ran out of the house but did not see the gunmen and only saw arms and legs running away. Ms. Nutt tried to help Beard, and Beard said that Senegal was one of the gunmen.

Ms. Nutts Subsequent Statement

As the investigation continued, Detective Byrd was informed that Ms. Nutt might have held back information about the shooting in her previous interview. During the preliminary hearing, Detective Byrd observed people arguing and fighting by the elevators and in the hallway outside the courtroom. Ms. Nutt attended the preliminary hearing.

On June 2, 2005, after the preliminary hearing, Detective Byrd interviewed Ms. Nutt, and she disclosed additional details. Detective Byrd testified that Ms. Nutt again stated she left her mothers house and went to her sons high school to drop off his cleats. As she returned to her mothers house, she saw Petees car stopped next to a brown car, and the occupants of the brown car were Senegal, Get Low Williams, one of the Thomas twins, and an unknown person. In this interview, however, Ms. Nutt stated that Beard arrived at the barbecue after she returned home from her sons high school.

In addition, Ms. Nutt stated that after she returned to her mothers house, she was standing on the front porch and saw four or five individuals at the corner of Florence and South Bardell. They were walking on South Bardell toward the house and the next street, Belgravia. She recognized them as the same individuals who had been in the small brown car and talking to Petee: Senegal, Get Low, and one of the Thomas twins. Ms. Nutt stated that she had seen these men in the neighborhood on prior occasions so their presence was not unusual, and she went inside the house. Within 30 seconds, she heard the sound of firecrackers, which were the gunshots.

Detective Byrd testified Ms. Nutts husband was present during this interview. Detective Byrd asked Ms. Nutt why she previously failed to disclose this information. Ms. Nutt replied that she did not want to get involved or testify in the case, and thought that Beard could be the person who talked to the police. Ms. Nutt stated she did not want to get involved because of being threatened. She was already being threatened, and she was afraid for her family. Ms. Nutts husband asked whether they could enter the witness protection program.

As a result of Ms. Nutts fears and her husbands request, Detective Byrd arranged for her to enter the district attorneys witness relocation program. It was stipulated that the witness relocation program paid the participants relocation expenses, including the first three months of rent.

Williamss Postarrest Statement

On March 9, 2005, Williams was arrested at his house; Monique Thomas was present when he was arrested. Williams did not resist and no weapons were found in his house. Detective Byrd interviewed Williams that day, after advising and obtaining a waiver of the rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

Williams denied current gang membership, and said he had been part of the Six Deuce Diamonds, a Crips gang, when he was in high school, about 10 years ago. The Six Deuce group was associated with the 107 Hoovers. Williams stated that some of his associates from those gangs were now members of rival groups, including the U-Boys. Williams insisted that former Bloods and Crips were able to hang out together without any problems, and the gangs were now associated with the streets.

Williams said he hung around Weller Street because that is where I get my haircut. He did not believe his family claimed any type of gang. Williams said Weller was a cool street because girls were there, only kids hung around there, these people did not wear gang colors, and it was not gang turf. He was not aware of any gang problems on Weller Street. Williams said he did not know why people called him Get Low, and it might have been from dancing at a club. Williams had numerous tattoos with the names of his girlfriends.

Williams said Senegal and Petee were related to him, and he knew the Thomas twins. Williams said he only knew Beard and McGhee because he heard about the shooting, but he did not otherwise know them. Williams heard from a smoker dude that some Asians were responsible for the shooting because they had conflicts with some black people. Williams said he had a brownish gold car, but he was not with Senegal and one of the Thomas twins on the day of the shooting, and he did not recall pulling up to Petees black car and talking to him. Williams could have been on Weller Street that day for a haircut.

Detective Byrd advised Williams that witnesses said he was with Senegal, and they walked up to the South Bardell house and started shooting. Williams said they had the wrong guy. Byrd asked why people would identify Williams if he was not there. Williams again said he had nothing to do with the shooting, but I was probably in the area. I know thats grooming night. Williams was not sure if he heard the gunshots because I hear shots around there all the time. Damn near every time I go get a haircut you hear some shots around here.

[Q] You would have heard these [shots] because these people put you standing right in the group of people that were shooting.

[A] Uh, nah, it couldnt have been me.

Williams again insisted he was not involved with any gangs or the shooting.

Trial Testimony

At trial, Beard admitted he suffered numerous prior convictions, including burglary in 1990, walking away from custody in 1991, misdemeanor giving a false name to an officer in 1992, and second degree burglary, stealing a car, and spousal abuse in 1999. Beard admitted he used cocaine, but testified he did not drink or use drugs on the day of the shooting. Beard admitted being part of the Kumi/415 prison gang, but denied being a member of the U-Boy gang.

Beard testified Williams, Senegal, and another person walked up to the house. All three men pulled guns and started shooting. Beard testified he was certain of his identification of Williams and Senegal. Beard testified he turned and looked at the three men for about five seconds, when they were at the front gate, before the shooting started. Beard tried to hide behind a car but he was wounded. Beard testified that as he was being lifted into the ambulance, his mother and sister asked if he saw who did it, and Beard replied it was Senegal.^[5]

Beard testified he knew Williams as a drug dealer on Weller Street, because Beard purchased drugs from him on numerous occasions. Beard had known Senegal for many years, and knew Senegal was a member of the Weller gang. Beard testified there was a third gunmen, but he did not know that person.

Beard testified that he spoke to Detective Byrd at the hospital, just a few hours after the shooting, and he told Byrd that Senegal was involved. He spoke to Byrd at the hospital the day after the shooting, and again said that Senegal was involved. Beard spoke to Byrd on a third occasion, at the police department, but denied that he made identifications simply based on hearing rumors from family and friends. During this interview, Beard told Byrd that he was able to put a name to one of the other people at his house, and it was Get Low Williams. Beard testified it took him a while to figure out the names because the shooting happened so fast.

On cross-examination, however, Beard admitted his family told him that Get Low was involved.

Q Up until the point when you heard from your family members that Get Low was involved, the fact that he was involved never crossed your mind; is that correct?

A Not at the time, no.

Beard also admitted he purchased drugs from Williams on numerous occasions and knew what he looked like, but he did not identify him to Detective Byrd until his third interview, after his family talked to him about the case.

Beard testified he selected one of the Thomas twins from the photographic lineup, advised Detective Byrd that family members told him that one of the twins might have been involved, and also told Byrd that he now remembered that one of the twins was there. Beard admitted he already knew the twins pretty well before the shooting, because they spent time in the neighborhood and he saw them on Weller Street. Beard also admitted that he never mentioned the twins during his first and second interviews with Detective Byrd, and that he was not certain they were there other than what I was told.

Ms. Nutt testified that Petee drove up to her mothers house, briefly spoke to Beard, and drove away. Ms. Nutt also saw Petee talking to some people in a car, but she could not identify the occupants and did not know whether Williams and Senegal were in the car. When Ms. Nutt returned to the house, she was standing in the front yard for a while, and saw four or more people walking toward the house. Ms. Nutt testified she could not visualize who was walking toward the house. Ms. Nutt went inside and was talking to her mother when she heard the gunshots. She ran outside to protect her young child, and saw her brothers on the ground. Ms. Nutt testified she saw the backs of four people as they ran away and never saw their faces. Ms. Nutt testified that before Beard was placed in an ambulance, he said he knew who it was but did not disclose a name.

Ms. Nutt testified that she recalled being interviewed by Detective Byrd and said Williams could have been one of the people talking to Petee, and she could have said that one of the Thomas twins were there. Ms. Nutt could not recall her statements to Detective Byrd during her two interviews, but testified her memory was more accurate during the interviews than at trial. Ms. Nutt explained her second statement was more accurate than her first statement because she didnt want to be involved in it when she was interviewed the first time. Ms. Nutt testified she was aware of gang activity in the neighborhood between the U-Boys and the Weller gang. She was also aware of the possible consequences against someone who testified in a murder trial against Weller gang members, that theyll take off whoever that goes and testify, but that did not matter to her.

Testimony of Gang Expert

Detective Ron Flowers testified as the prosecutions gang expert. He had been a member of the Fresno Police Department for seven years. He previously served as a patrol officer in southwest Fresno, where gang activity was prevalent. He had been assigned to the Multi-Agency Gang Enforcement Consortium (MAGEC) for the past three years, and dedicated 60 to 70 percent of his time to investigating gang activity in southwest Fresno, particularly African-American gangs. He had approximately 500 contacts with gang members as a patrol officer, and another 150 to 200 contacts as a detective with MAGEC.

Detective Flowers testified his work with MAGEC included validation of gang members, and explained that in California, a person has to meet certain criteria set forth by the state. The state uses 10 validation criteria elements, and Fresno County uses three factors to validate a person as an active gang member, and two factors to validate an associate. These validation factors include whether a person is associating with other gang members or associates, arrested with gang members, has gang tattoos, wears gang clothing, is depicted in photographs with other gang members or displaying gang hand signs, or identified through graffiti or gang monikers. Validation may also occur through a reliable source, such as the Department of Corrections, the Fresno County Jail, or the probation department.

Flowers testified the African-American gangs in southwest Fresno were primarily territorial, with their turf and names based on streets and neighborhoods. There were two large rival gang alliances in southwest Fresno: TWAMP and MUG. Each organization consisted of numerous street gangs which had formed alliances for various reasons, including increasing their strength, thwarting law enforcement, and increasing opportunities for narcotics sales and distribution.

Flowers testified that nearly every street or neighborhood gang in southwest Fresno was aligned with either TWAMP or MUG. These subset gangs were named for their streets. A gang member aligned with MUG would not be spending a lot of time in an area controlled by a gang aligned with TWAMP.

Flowers testified that TWAMP consisted of the following street gangs: Villa Posse, Lee Street, Weller Boys, Lotus Street, Grove Street Posse, Strother Boys, Villain Blood, Young Black Soldiers, and Four Trey (which is primarily a prison gang). Villa Posse was a large group and a widespread gang in Fresno. Villa Posse was considered the parent gang of Weller Boys, Fig Boys, Lotus, and Grove Street Posse. Villa Posse controlled various areas through the smaller hood or street gangs.

The Weller Boys were in close alliance with Villa Posse, and recognized as a street or a hood of the much larger Villa Posse parent gang. The Weller Boys consisted of 23 members, the turf was the 2300 block of South Weller, and a member may identify himself as a Weller Fig or Fig Boy. The Fig Boys were also synonymous with the Weller Boys. Martin Luther King Avenue used to be known as Fig Street, and one street gang was still known as the Fig Boys.

Q A Fig Boy ... if that person was living or spending the bulk of their time currently in Weller Street2300 block of Weller Street, would that person be considered Weller Boy just based on the location and their association with Fig Boy in the past?

A Again, its synonymous with what you had during that time. You had childhood friends on two opposite streets on the same block in the same area who grew up together, who identified themselves in a certain fashion, but pretty much did everything together consistently. In some cases youll have a Weller Boy identify himself as Weller Fig or Fig Boy and vice versa.

Flowers explained that MUG was the rival gang alliance to TWAMP. MUG was an acronym for the individual street gangs called Modoc, U-Boys, and Garrett Street. Modoc was first recognized in 1989, it was a stand alone gang, and evolved from Fink White Deuce. The U-Boys stood for U for Eugenia Street. The Dog Pound was a stand alone gang named for the area itself, and had recently joined with MUG. Another stand alone gang in the area was the Muhammads, also known as Walnut Street Possee or Walnut Street Crips. The Sampsons had converged with MUG, but had slowly been displaced. The gangs which aligned with MUG did so for strength, the ability to gain weapons, and narcotics transactions.

The primary activities of both the U-Boys and the Weller Boys were narcotics sales, along with guns and other violent activities. The sales of narcotics and guns and violence go hand in hand. The neighborhood areas were so small that it was common for members of the rival groups to cross each others paths while in transit, to be attacked while they are out distributing or selling their narcotics. A member of the U-Boys would not be allowed to sell drugs on the turf of the Weller Boys, and some type of violent assault would occur to halt such drugs sales. Flowers testified it was [s]lightly possible for an individual to sell drugs out of a relatives house on the Weller Boys turf, without being part of the Weller Boys, but the gang would probably become suspicious because of the traffic in and out of the house, and that dealer would be forced to leave the area through violence.

Detective Flowers testified that in the six months prior to October 2004, the rivalry between TWAMP and MUG was exacerbated by at least two significant homicides, of Hammod Demmery, a validated member of Modoc, and Darrell Hilliard, a member of Strother. Flowers explained that it would be expected that TWAMP would retaliate against MUG for a homicide of one of its members. If a gang failed to retaliate, it would be a sign of weakness, the gangs established notoriety may decrease, it may be considered a weaker group, and other groups may attack them.

Flowers testified Senegal was a validated member of Weller VP, which is an acronym for Villa Posse, and part of TWAMP. Senegal had been a validated Weller VP since 1996. Flowers had been aware of Senegals presence in Fresno during his patrol work in 2000 or 2001, and personally observed him associating with members of the Fig Boys. When Senegal was arrested in this case, he identified himself as Villa Posse, and he had a West Side Fig tattoo on his arm.

As to Williams, Flowers testified he had a difficult time trying to establish his hood, but determined Williams was a member of Weller VP, Villa Posse, based on the totality of the circumstances. After he reviewed Williamss background, Flowers thought it was pretty easy to conclude Williams was a member of Weller VP. Flowers started with an old picture of Williams, which gave him a clear indication of ... at least foundation to who he belonged with. And I used that to establish not only the group but the associates and the current arrests that has been made or was made. In April 2005, Williams admitted his affiliation with Villa Posse when he was arrested and booked into jail in this case. On cross-examination, Flowers clarified that Williamss self-admission was not one of the reasons I validate him. That was one of the criteria I used for the validation.

Flowers testified Williams associated with other Weller Boys, and allegedly committed the instant offense along with other Weller Boys. Senegal, Williams, and Trinell Petee Beasley were present at the funeral of Darrell Hilliard, a Strother Boy/TWAMP.^[6] Flowers testified that Adavier Thomas was a member of Fig Weller VP, and Atavier Thomas was a member of the Weller Street gang.

Flowers testified about several photographs introduced by the prosecution, which depicted Senegal throwing gang hand signs; Williams, Senegal, and Senegals brother wearing red jerseys, which was the color of choice for most members of Villa Posse or Villain Bloods; Williams and Senegal with a validated member of YBS, a TWAMP gang; and Williams and Senegal with members of Lee Street, another TWAMP gang. Flowers was not aware whether Williams had any gang tattoos.

On cross-examination, Flowers was asked to explain his testimony, that another factor used to validate Williams as an active member of the Weller gang, was because he was arrested with other known gang members.

Q In fact, isnt it true, Detective, that Mr. Williams was arrested in his own home with his girlfriend, and those were the only two people present at the time he was arrested?

A Well, were talking about a specific crime that had an ongoing investigation, obviously. And over time, once it was determined that Mr. Williams was a suspect, he was, in fact, arrested for that case that involved other members of that same group.

Flowers conceded Williams was at home with his girlfriend when he was arrested, and no other gang members were present at that time.

Q So what you are really saying is that suspected or rumored to be involved in a gang crime and then arrested for that is the same thing as being arrested with other gang members? Is that what you are saying?

A Correct.

Q So the mere fact that Mr. Williams is suspected of being involved in a crime that you suspect to be gang related and is later arrested for that case is a validation criteria in your opinion?

A I know Mr. Williams was arrested for his part in a crime that involved other gang members. Mr. Williams was arrested with other gang members.

Q For his part in the crime that were right here determining whether or not hes guilty of, right?

A Right.

Also on cross-examination, Flowers conceded it was possible that an individual booked for a gang-related crime, who might not be a gang member, could claim gang membership for protection while in custody. However, Flowers believed the gang might assault that individual if the false membership claim brought undue attention to that gang from law enforcement officials investigating that offense. It would be very unhealthy for someone to claim gang membership if that person has not been accepted as a member.

Detective Flowers testified that red was the predominant color of the Villa Posse gang. He admitted Williams was wearing blue when he was arrested, the U-Boys predominantly wore blue, and blue was the chosen color of the Crips. Flowers explained color distinctions among TWAMP and MUG:

... I want everyone to keep in mind here in Fresno there is no color dispute. There is no barriers. Youll have a gang with Crips and Bloods within it. Like in this case Villa Posse is a great example.

Flowers cautioned that [y]ou have to be careful not to assume particular clothing is gang-related simply because of the color. Flowers testified the U-Boys wore both red and blue, blue was not a particular factor in Fresno gangs, and the totality of [the] circumstances may give some direction on the individuals status aside from colors.

Flowers testified that Williams admitted membership in the Six Deuce Diamond Crips in 1994, but that gang was synonymous with Villa Posse.

Q Arent there Six Deuce Diamond or former Six Deuce Diamond Crips in the TWAMP side of things and the MUG side of things?

A Yes.

Q So Six Deuce and Villa Posse can be the same thing, but they are not necessarily the same thing?

A Well, again, the term Six Deuce, 107, Hoover Crip, Pyru Blood, these are usually picked up in certain facilities. Six Deuce Diamond Crips predominantly take on that gang affiliation while incarcerated in the California Youth Authority. Again, once they come out they gravitate back to their street or their hood. They are accepted, obviously, because of who they are or where they are from. But they still carry that Six Deuce Diamond, the 107, the Hoover Crip, Pyru Blood and so forth.

Q Because thats what they claim on the inside?

A The inside and outside. Some folks dont make it there, but they do accept it because who they closely associate with. They want to mimic that individual. They want to be like that person. Various reasons.

On further cross-examination, Flowers testified another gang investigator established Williams was a gang member in 1999.

Q What about within the last three years?

A Reliable sources.

Q No. Any other detective in your unit?

A I think detectives Im going to mention knew of Mr. Williams status from those facts established by [Detectives] Duane Freeman and Marcus Gray. [][]

Q So within the last three years and not talking about what may have been the case in 1999, are you aware of other reliable sources that have identified Mr. Williams as a gang member?

A Yes.

Q And those would constitute, essentially, other gang members, correct?

A Um, in one case yes. But the reason I identified those subjects or those persons as a reliable source without a name is because during that timeduring the course of this investigation I haddidnt have the opportunity to actually speak with them. That information was provided to detectiveshomicide detectives who were working the case and who had a specific detail and provided limited information to other detectives such as myself. So for their protection I described him as reliable sources.

Q Those other individuals who identified Mr. Williams as a gang member were themselves, in fact, members of the U-Boy gang, correct?

A One individual. And I believe there were two or three witnesses in that area involved in this case that areor were familiar with his status as a member of Weller, yes.

Flowers conceded gang members were not always reliable sources.

The prosecution introduced documentary evidence of prior offenses committed by gangs within the TWAMP alliance. Flowers testified that Jermaine Levey, a validated member of Villa Posse, was convicted of assault with a deadly weapon ( 245, subd. (a)(1)); and Adavier Thomas, a validated member of Fig Weller VP, was convicted of shooting someone ( 245, subd. (a)(2)). Flowers testified the victims in this caseMichael McGhee and Anthony Beardwere validated members of the U-Boys. As to the instant case, Flowers testified the murder and attempted murder of rival gang members would constitute predicate offenses.

The prosecutor set forth a hypothetical based upon the facts of this case, where validated members of the Weller Boys walk up to a gathering of U-Boys and start shooting without saying anything, and whether that act would have been designed to benefit or assist that particular gang. Detective Flowers testified such an assault would continue the established rivalry but, more importantly, improve the respect and reputation of the gang. Thats the key thing thats important to a gang. If reputation, respect thats compromised, retaliation is almost immediate. Detective Flowerss opinion would be bolstered if the victims were U-Boys, and part of a larger group of U-Boys. It would be unusual for such a large gathering of rivals to place themselves in such a dangerous position. Its probably advantageous for the rival group to take advantage of that opportunity when so many members are present. You know, a greater number of victims would fall and further bolster the establish[ed] notoriety that the gang has had for so many years.

The prosecutor asked another hypothetical, where two members of the Weller Gang, such as Williams and Senegal, were part of the group that walked up and opened fire on a gathering of U-Boys, including McGhee and Beard, whether they would have been acting to benefit the Weller gang. Flowers replied that in such a situation, the shooters individual status would grow, and the gangs shared status would be far extended. It would send a clear message to rivals that they are a force to be reckoned with. The gang would also retaliate against any gang member or family who cooperated with the police or testified in court, they would be called snitches, and they would place themselves in harms way by cooperating, but Byrd explained some people cooperate because they have had enough of the gang lifestyle and culture.

Defense Evidence

Neither Williams nor Senegal testified. A defense investigator testified he interviewed Beard on May 21, 2005. Beard said he saw the gunmen for about three seconds, he paid the most attention to Senegal as he drew his weapon, and he heard rumors that Williams also was there. Beard said he was not able to identify Williams before he heard the rumors from his family, and he was about 70 percent sure of his identification of Williams. Beard said he was not involved in gang activity.

Cody Senegal, Shannon Senegals wife, testified that she recalled the afternoon of October 9, 2004. She was at home with Senegal when she received a telephone call from a family member that there had been a shooting on South Bardell. Ms. Senegal and her husband walked around the corner to the scene. There were a lot of police there. They also met a lot of ladies, including Chermane Nutt. Ms. Senegal testified the women were accusing a lot of people out there, including Shannon. Ms. Senegal tried to explain he was with her during the shooting. Ms. Senegal denied testifying for other family members in unrelated trials.

Dr. Robert Shomer, a psychologist, testified as an eyewitness identification expert. Dr. Shomer testified to his opinion that there is a distinct correlation between the amount of detail a person can provide after an event, and the accuracy of any subsequent identification. Dr. Shomer explained the passage of time adversely affects the accuracy of a persons identification. There are other factors which diminish a witnesss ability to accurately remember, including the presence of a weapon, which tends to cause people to focus on it. A witnesss certainty of identification has no correlation to the accuracy of that identification. A person who identifies a stranger may become more confident of the identification over time, even as the memory diminishes.

Williams and Senegal were convicted of first degree murder of McGhee and attempted murder of Beard, with enhancements for firearm use and committing the offenses for the benefit of a criminal street gang. Williams and Senegal have filed separate appeals and have not joined in the issue(s) raised by the other party. On appeal, Williams contends there is insufficient evidence to support his convictions on the substantive offenses and the gang enhancements, and contends an officers testimony as a gang expert abrogates basic principles of due process. Williams also raises several constitutional challenges to the gang enhancement, that it is void for vagueness and violates his First Amendment right to free association.

DISCUSSION

I.

SUBSTANTIAL EVIDENCE OF SUBSTANTIVE OFFENSES

Williams contends his convictions for first degree murder and attempted murder are not supported by substantial evidence, and challenges the reliability and veracity of the identifications of Beard and Ms. Nutt. We begin with the well-settled standards to assess the sufficiency of the evidence to sustain a criminal conviction. The reviewing courts task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Earp (1999) 20 Cal.4th 826, 887.) The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence. (People v. Johnson, supra, 26 Cal.3d at p. 577; People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)

We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (People v. Bradford, supra, 15 Cal.4th at p. 1329.) We do not reweigh evidence or redetermine issues of credibility. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931 (Ferraez).)

An appellate court must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425.) It must not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (People v. Pitts (1990) 223 Cal.App.3d 606, 884.) Furthermore, an appellate court may reject the testimony of a witness who was apparently believed by the trier of fact only if that testimony is inherently improbable or impossible of belief. (People v. Jackson (1992) 10 Cal.App.4th 13, 21; People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) An appellate court may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Williams attacks Beards identification testimony, that he was certain Williams was one of the gunmen, and contends Beards trial testimony was not reasonable, credible, or of solid value because Beard admitted he only identified Williams after he heard rumors from family and friends about Williamss alleged involvement. Williams also attacks Ms. Nutts unsworn statements to Detective Byrd, that she saw Williams speaking to Petee and walking toward her mothers house just before the shooting, and asserts these unsworn statements are unreliable because they are the same as rumors on the street the eyewitnesses claimed to have heard, and Ms. Nutt failed to testify to these statements when she appeared at trial, even though she had moved under the witness relocation program.

Williams correctly notes that Beards pretrial statements and trial testimony lack certainty as to his identification of Williams as one of the gunmen. Moments after he was shot, Beard told either his mother or sister that Shannon Senegal was one of the gunmen. A few hours later, Detective Byrd interviewed Beard in the emergency room; Beard said that Senegal was one of the gunmen, he did not know the identities of the other gunmen, but he thought he could probably identify them from photographs. The day after the shooting, Byrd again interviewed Beard in the hospital, and Beard again said Senegal was there but he did not know who the other two gunmen were.

Over two weeks after the shooting, Detective Byrd showed Beard a series of photographic lineups. Beard again identified Senegal as one of the gunmen, and said he looked directly at Senegal. As the interview continued, Beard identified one of the Thomas twins as a member of the Weller gang, and said he heard one of the twins was present during the shooting, but he could not distinguish between them and never actually saw him there. Beard also identified Williams from a photographic lineup. Beard said he was positive Williams was with Senegal during the shooting, Williams was one of the them for sure, but Beard was not sure if Williams had a gun. Detective Byrd asked why Beard failed to previously mention Williams. Beard replied that he heard rumors on the street that Williams was involved, and after hearing these rumors it all registered to me that Williams was there.

At trial, Beard testified he was positive that Williams was one of the gunmen, and explained it took him a while to figure out the names because the shooting happened so fast. On cross-examination, however, Beard admitted his family told him that Williams was involved, and he did not identify Williams until after his family talked to him about the case.

The instant case, however, involved far more than Beards delayed identification of Williams. In her first interview with the police, Beards sister, Ms. Nutt, placed Williams near her mothers house just before the shooting. Ms. Nutt told Detective Byrd that she saw Petee talking to some individuals in a small brown car, and the occupants of that car were Williams, Senegal, one of the Thomas twins, and an unknown male. In her second statement to the police, Ms. Nutt admitted she had additional information but explained she had already received threats against her family, and her husband asked about their familys possible placement in the witness relocation program. Ms. Nutt again stated that she saw Williams, Senegal, one of the Thomas twins, and the unknown male in the brown car talking to Petee. She further disclosed that she was standing on the porch of her mothers house just before the shooting, as her brothers visited with the other family members at the barbecue. She saw four or five individuals walking on South Bardell toward their house, and she recognized them as the same individuals who had been in the small brown car and talking to Petee: Williams, Senegal, and one of the Thomas twins. Ms. Nutt stated that she had seen these men in the neighborhood on prior occasions so their presence was not unusual, and she went inside the house. Within 30 seconds, she heard the sound of firecrackers, which were the gunshots.

There is thus substantial evidence, albeit circumstantial, that Williams and Senegal were among the gunmen in this case. From the moment of the shooting, Beard consistently said that Senegal was one of the gunmen, and he never wavered from that identification. Ms. Nutt was also consistent in saying that she saw Williams, Senegal, and one of the Thomas twins speaking to Petee, very close to their house and just before the shooting. Ms. Nutt also said that she saw Williams, Senegal, and one of the twins walking toward the house, she went inside, and she heard the gunshots about 30 seconds later. Such circumstantial evidence thus places Williams with Senegal just seconds before the shooting.

Williams makes much of the fact that Ms. Nutt failed to repeat these statements when she testified at trial, even though she had been placed in the witness relocation program. Williams also complains that Ms. Nutt may have simply repeated the rumors referred to by Beard. However, such circumstances are relevant to the witnesss credibility rather than to whether there is substantial evidence to support the convictions. Moreover, Ms. Nutt did not disown her statements to Detective Byrd. At trial, she testified her memory was more accurate during her interviews with Byrd, and her second statement was more accurate than her first statement because she didnt want to be involved in it when Byrd interviewed her the first time. The jury was well aware of the timing and circumstances of Ms. Nutts pretrial statements and capable of determining the credibility of her account.

As explained ante, this court may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin, supra, 18 Cal.4th at p. 331.) Ms. Nutts statements to Detective Byrd were not inherently improbable or impossible of belief, but instead presented credibility questions for the jurys resolution, and Williamss convictions are supported by substantial evidence.

II.

ADMISSION OF EXPERT TESTIMONY

Williams contends there is insufficient evidence to support the jurys findings on the gang enhancements. He separately challenges the admissibility of expert testimony from a law enforcement officer as to various aspects of the gang enhancement. He argues a law enforcement officer is not qualified to address the behavior and characteristics of gang members, an officers testimony is not necessary to assist the jury because it is generally known that gang members are violent, and such expert testimony violates due process because it permits the prosecution to introduce otherwise inadmissible character evidence.

Given the interrelated nature of Williamss challenges to the admissibility of expert testimony with his substantial evidence arguments, we will first address the admissibility of expert opinion in a case involving the criminal street gang enhancement. As we will explain, Williams never raised any of these objections to the trial court, and such issues have been considered and rejected by other courts.

A. Background

Williams and Senegal filed numerous motions in limine as to the nature and extent of the proposed testimony of the prosecutions gang expert, Detective Ron Flower. First, Williams and Senegal moved to bifurcate the gang enhancements from the substantive offenses, argued gang evidence would be prejudicial as to the underlying offenses, particularly as to drug transactions, weapons use, and predicate offenses, but conceded that limited evidence of gang involvement might be probative as to motive for the substantive crimes. The court denied the bifurcation motion. Neither Williams nor Senegal has raised the bifurcation issue on appeal.

Williams and Senegal also filed a motion for Detective Flowers to divulge the source for any hearsay statements which formed the basis for his opinions. Williams and Senegal acknowledged the prosecution had complied with discovery and they had received a good amount of information, but demanded the identity of any confidential sources relied upon by Flowers to form his opinions. The prosecutor replied he was not aware of any additional information relied upon by Flowers, aside from that already provided to Williams and Senegal in discovery. The court denied Williamss and Senegals motions and held Flowers could testify as to his opinions, provided a sufficient foundation was made.

Williams moved to exclude booking statements, when he claimed affiliation with Villa Posse, as involuntary and obtained in violation of Miranda. The court conducted an evidentiary hearing, and held there was no Miranda violation, Williamss statements were not involuntary, and denied Williamss motion to exclude. The court also denied Williamss motion to exclude these statements as prejudicial under Evidence Code section 352.

Williams objected to the prosecutions request to introduce photographs of Williams with other gang members as prejudicial and cumulative. The court overruled the objection. The court granted Williamss motion to exclude references to a Crime Stoppers tip, which allegedly involved Williams and a vehicular shooting, and evidence about prior unrelated shootings between U-Boys and Weller Boys.

Williams moved to preclude Flowers from testifying about what his specific intent was, if he was the shooter in this case at all. The court granted that motion, and found an expert could not testify about what either of these [appellants] had in their minds, if they were the individuals who fired these shots. And hes not entitled to testify that they were, in fact, the individuals who did that. Thats not the appropriate subject of a gang expert testimony in this courts view. It invades the province of the jury on this case. However, the court also found the gang expert was entitled to testify about his opinon as to the motive for the shooting, whoever may have perpetrated it.

When the prosecution called Detective Flowers, the court instructed the jury that it was going to hear testimony about gang activity and membership, it could use such evidence only for the limited purpose of deciding whether Williamss and Senegals had a motive to commit the charged offenses, the identity of Williams and Senegal as participants, and whether Williams and Senegal acted with the intent, purpose, and knowledge required to prove the gang enhancements. The court further instructed the jury that it could consider the evidence to evaluate a witnesss credibility, and to consider the facts and information relied upon by the expert in reaching his opinion.

You may not consider this evidence for any other purpose. You may not conclude from this evidence that a defendant is a person of bad character or that he has a disposition to commit any crime. Bear in mind that the fact a particular defendant is a member of a gang, if proven to be true, is not prove [sic] of his guilt of this or any other crime.

Evidence of crimes committed by other gang members may be considered by you only for the purpose of determining whether or not the Defendants are members of a criminal street gang as will be defined in the instructions of the court at the end of the case and not for any other purpose.

Thereafter, Detective Flowers testified as set forth ante. Williams and Senegal renewed their objections to his discussion of the photographs and to the prosecutors use of hypothetical questions based on scenarios similar to the instant case. The court instructed the jury as to the appropriate consideration of hypothetical questions:

In examining an expert witness counsel may ask a hypothetical question. This is a question in which a witness is asked to assume the truth of a set of facts. And, of course, you know the issue of whether the defendants here did or did not participate in this crime is for you to decide. Butand to give an opinion based on that assumption in permitting such a question the court does not rule and does not necessarily find that these assumed facts have been proved it only determines they are within the possible range of the evidence. So its for you to decide ultimately, from all the evidence presented in this case, whether the facts that [the prosecutor] here has asked the witness to assume, in fact, have been proved.

Aside from basic evidentiary objections as to the form of questions, Williams and Senegal did not otherwise object to Flowerss testimony or his appearance as a prosecution expert.

After the convictions in this case, Williams and Senegal filed motions for a new trial, and argued the court should have granted the bifurcation motion because gang evidence was so prejudicial it was impossible for them to receive fair trials. The court denied the new trial motion.

B. Analysis

We begin with the admissibility and parameters of the testimony of an expert witness. A witness is qualified to testify as an expert if the witness has special knowledge, skill, experience, or education pertaining to the matter on which the testimony is offered. [Citat