P. v. Abancio

Filed 7/6/07 P. v. Abancio CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Statement of the Case

A jury convicted Alfredo Vierra Abanico and Vincent Lopez of five counts of kidnapping for purposes of robbery, five counts of kidnapping to facilitate a carjacking, and street terrorism. It further found that they personally used firearms and committed the crimes for the benefit of a criminal street gang. After a court trial, the court found that both defendants had served prior prison terms and that Lopez had a prior strike conviction. (Pen. Code, 209, subd. (b)(1), 209.5, subd. (a), 186.22, subds. (a) & (b)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b), 667.5, subd. (b), & 1170.12, subd. (c)(1).)[1]

The court sentenced Abanico to two consecutive terms of 15 years to life for two counts of kidnapping for robbery as enhanced by the gang findings plus two consecutive 10-year firearm enhancements. The court imposed identical concurrent terms for the remaining three counts of kidnapping for robbery and five counts of kidnapping to facilitate carjacking and a two-year term for street terrorism plus a one-year term for the prison enhancement, but it stayed the terms on the convictions for kidnapping/carjacking and street terrorism under section 654.

Concerning Lopez, the court declined to dismiss Lopezs strike. (See People v. Superior Court (Romero) (1997) 13 Cal.4th 497 (Romero). Applying the Three Strikes law, the court imposed two consecutive indeterminate terms of 30 years to life for two counts of kidnapping for robbery as enhanced by the gang findingsi.e., 15 years to life, doubled) plus two consecutive 10-year firearm enhancements. As with Abanico, the court imposed identical concurrent terms for the remaining three convictions for kidnapping/robbery and five convictions for kidnapping/carjacking and a four year term for street terrorismi.e., two years, doubledplus a one-year prison enhancement, but it stayed the terms on the convictions for kidnapping/carjacking and street terrorism under section 654.

Defendants appeal from their judgment. Both claim there is insufficient evidence to support the gang enhancements. Lopez claims there is insufficient evidence to support any of his convictions. He also claims the court erred in admitting hearsay to prove the gang enhancement and charge of street terrorism, permitting an expert to testify about ultimate issues concerning the gang charges, imposing consecutive sentences, and declining to dismiss his strike. Abanico also claims that the abstract of judgment must be corrected to reflect stayed, rather than concurrent, terms for the five counts of kidnapping to facilitate carjacking.

We conclude there is insufficient evidence to support the gang enhancements, reverse the judgment and remand the case for resentencing.

Facts

On August 18, 2004, sometime between six and seven p.m., Rafael was driving his friends Alvaro, Jesus, and Edgar to a rehearsal for his sisters quinceaera. En route, they stopped to pick up another friend Larry. As Larry opened the door to get in, three men approached him. One man, who was later identified as Abanico, put a gun to Larrys stomach, and then he and the two others got in. Abanico directed Rafael to drive a short distance, and then he started driving. He gave his gun to an accomplice, who was later identified as Lopez.

The carjackers demanded various things and took wallets and cell phones. They found a bank card in Rafaels wallet, and Abanico drove to three different ATM machines to withdraw money. However, all three attempts were unsuccessful. Ultimately, the carjackers took Rafaels wallet, containing $260; Jesuss wallet, containing $60; Larrys cell phone and necklace; and Alvaros sweater. They warned the victims that they or their families would be harmed if anyone reported the incident. Abanico then dropped them off near a chemical plant and left. The victims made their way to Rafaels house, where they called the police.

On September 5, 2004, Rafaels vehicle was found hidden in a riverbed. It was dented and scratched all the way around and some interior parts had been stripped away.

Alvaro and Jesus identified Abanico and Lopez in photographic lineups a few days after the incident and again at trial.[2]

With a warrant, police searched Abanicos residence and seized two guns registered to Abanicos father; ammunition for them; other types of guns; a San Francisco 49er hat and towel; a video tape labeled East Side Salinas; and a photograph of someone whose clothing and tattoos indicated gang membership.

After his arrest, Abanico admitted that he was a member of East Las Casitas, a subset of the Norteos gang. He also admitted that he participated in the incident and used one of his fathers guns. He said that his accomplices were not gang members and the proceeds of the robbery did not benefit his gang. One hour after he was booked into jail, Abanico called the residence of Veronica Cerda, Lopezs girlfriend, with whom he was living.

Lopez was also arrested. When booked, he informed jail authorities that he associated with Norteos, and Sureos were his enemies.[3] A search of Cerdas residence revealed a 49er jacket that Cerda said was Lopezs.

The Defense

Cerda testified that on August 18, 2004, she and Lopez were together from the early afternoon until about 10:00 p.m., except for a few minutes around 8:30 p.m., when he returned some books she had borrowed from a neighbor.

Abanico presented no defense.

Rebuttal

Alfonzo Arrellano, Cerdas neighbor, testified that his son and Lopez are friends, and Lopez visits frequently. He said that on August 18, 2004, Lopez had dinner at his house. Arrellano went to the store sometime between 8:00 and 9:00 p.m., and Lopez was still there. He did not know how long Lopez remained at his house.

Gang Evidence

Officer Richard Heath, a gang intelligence officer in the gang unit of the Salinas Police Department, testified as an expert on gangs in Salinas. He testified that the Norteos gang is a formal organization. In Salinas, the police track several thousand Norteos gang members. He said that there are numerous subsets of the Norteos gang, one of which is East Las Casitas. He explained that Norteos identify with the letter N, the color red, the number 14 or roman numeral XIV, the Huelga bird logo of the United Farm Workers Union, and a five-pointed star. He said it is common for Norteos to wear San Francisco 49er paraphernalia because it is red or burgundy, and San Francisco is a Northern California city. He testified that the primary activities of the Norteos gang was the commission of crimes, including assault with a deadly weapon, robbery, carjacking, burglary, witness intimidation, narcotics trafficking, kidnapping, criminal threats, and car theft.

Officer Heath opined that Abanico was a member of a subset of the Norteos criminal street gang. He based his conclusion on Abanicos numerous tattoos, including one that read, E.L.C.; and Abanicos admission that he was a gang member and that Sureos were his enemies. He also noted that Abanico had a 49er hat and towel, and various other items, including a letter, cassette tape, photograph of another gang member, a drawing, and some handkerchiefs, that indicated gang membership.

Officer Heath opined that Lopez was either an active participant or member in a criminal street gang Norteos. He based his conclusion on Lopezs statement during booking that he associated with Norteos, and Sureos were his enemies. He explained that Lopez had a gang name of Chente, which, he acknowledged, was simply short for Vincent. He noted that Lopez had a four-dot tattoo on his elbow, although he did not explain its particular significance.[4] Officer Heath testified that Lopez had two 49er jackets, one that he had stolen many years before, and another he had received more recently as a present.

Officer Heath testified that Lopez also had numerous documented contacts and associations with Norteos gang members from 1997 to 1999 but did not recount any of these. He did testify that in 2004, Lopez was at his mothers house with his brother, who associates with Norteos; Lopez associates with his girlfriend Veronica Cerda, who associates with Norteos; and when he was arrested, Lopez was with a neighbor, who associates with Norteos. Officer Heath also noted that, according to Cerda, Lopez and Abanico were friends, and some Sureos had once assaulted Lopez when he was filling out job applications.

In answer to a hypothetical question using the operative facts of this incident, Officer Heath opined that the crimes were committed for the benefit of and in association with the Norteos street gang. He explained that money from robberies is funneled through the prison and jail system to higher ranking gang members. He said that stolen vehicles are sold whole or for parts and are used to commit other crimes and avoid detection. He explained that crimes instill fear of harm and retaliation in the community, make cooperation with the law enforcement less likely, and enhance the reputation of the gang as a whole and that of individual gang members as true soldiers.

Officer Heath reviewed a number of crimes that were committed by persons whom he identified as Norteos gang members. He noted an attempted car jacking on August 1, 2002, in Pacific Grove, during which the victim was shot and killed, by active Norteos gang members, who later pleaded guilty to murder. He also reported on several robberies by active Norteos gang members, who were later convicted of the crimes. One involved a convenience store. Another involved an armed bank robbery, in which one of the Norteos gang members admitted committing the crime for the benefit of the Norteos gang, which received money from it. Another robbery involved a store at a gas station. And another robbery involved a bakery.

Sufficiency of the Evidence

Lopez contends there is insufficient evidence to support his convictions, and both Lopez and Abanico contend there is insufficient evidence to support the gang enhancements.

When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidencei.e., evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)

Lopez as Participant in the Crimes

Lopez claims there is insufficient evidence to prove that he participated in any of the crimes. He notes that there were five victims, but only Jesus and Alvaro identified him. He further notes that although both identified him in photographic lineups, neither was absolutely certain at the time. Thus, he argues that their certainty at trial came from having seen his photograph and not from remembering him as a perpetrator. In addition, Lopez points out that Alvaro, who only glanced at the man he later identified as Lopez, said the man was wearing a hooded sweater or sweatshirt, but Jesus could not describe the mans clothing. Finally, Lopez observes that Rafael did not recognize Lopez as a perpetrator, and Larry testified that the man was around 5 feet 10 inches tall. Lopez, however, is only 5 feet 6 inches.

Under the circumstances, Lopez claims that the identification evidence is not sufficiently reliable to support his convictions, especially in light of evidence of a credible alibi.

A single witnesss testimony is sufficient to support a conviction, unless it is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Scott (1978) 21 Cal.3d 284, 296; Evid. Code, 411.) Moreover, a witnesss identification of a criminal defendant need not be airtight to support a conviction. (People v. Elwood (1988) 199 Cal.App.3d 1365, 1372; People v. Midkiff (1968) 262 Cal.App.2d 734, 740; People v. Wiest (1962) 205 Cal.App.2d 43, 45-46.)

Lopezs claim rests on evaluations of the credibility of Jesus and Alvaro, their opportunity to see Lopez, the failure of other victims to identify him, and the weight to be given his alibi. Those are tasks exclusively for the jury and not for a court on appeal.

Here, the jury was instructed on the factors relevant in determining credibility (CALJIC No. 2.20), the burden of proving identity bases solely on eyewitness testimony (CALJIC No. 2.91), and the factors to consider in proving identity by eyewitness testimony (CALJIC No. 2.92). The jury was also instructed that it was not the number of witnesses that determined whether a fact was proved but the convincing force of the testimony, and the testimony of a single witness is enough to prove a fact. (CALJIC Nos. 2.22, 2.27.)

With these instructions in mind, the jury determined all issues concerning credibility of witnesses, the reliability of the identification testimony, and the weight to be given Lopezs alibi, and it resolved those issues against Lopez. We do not find the testimony of Alvaro and Jesus so incredible or unreliable that as a matter of law it can not support the jurys ultimate finding that he was one of the perpetrators.

Under the circumstances, we conclude that the record supports the jurys finding that Lopez participated in the crimes.

Street Terrorism

Subdivision (a) of section 186.22 provides: Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. (Italics added.)

In People v. Casteneda (2000) 23 Cal.4th 743 (Casteneda), the Supreme Court construed the phrase actively participates in any criminal street gang (186.22, subd. (a)) as meaning involvement with a criminal street gang that is more than nominal or passive. (Id. at p. 747.) In settling on that simple definition, the court rejected the defendants claim that active participation meant devoting all, or a substantial amount, of ones time and efforts to a criminal street gang and having a leadership position in the gang. (Id. at p. 750.) The court explained that section 186.22, subdivision (a) imposes criminal liability not for lawful association, but only when a defendant actively participates in a criminal street gang while also aiding and abetting a felony offense committed by the gangs members. (Id. at pp. 750-751.)

In determining whether the defendants involvement was more than nominal or passive, the court noted that police had seen him in the company of gang members on seven occasions, and on four of them, police had advised him the gang was a criminal street gang within the meaning of the gang statute. Moreover, on those occasions, the defendant bragged to the officers that he  kicked back  with the gang, which meant he associated with or was a member of the gang. (Casteneda, supra, 23 Cal.4th at pp. 752-753.) Later, the defendant was armed with a gun and together with two others robbed two men on the gangs territory. A gang expert described the crimes as typical of those committed by the gang members to put local residents on notice that the gang controlled the neighborhood. (Ibid.)

Here, Lopez notes that his supposed gang name Chente is simply a nickname for Vincent. His association with gang colors involved possession of a red 49er jacket that he stole over seven years before the incident and a newer 49er jacket with only a little burgundy on it that he received as a present. The only specific evidence that he associated with Norteos was that he spent time with his brother, his girlfriend, and a neighbor. Finally, he notes he was attacked by Sureos while looking for a job.

Lopez argues that it does not support a finding that he actively participated in the Norteos gang. At most, it reveals only a passive or nominal association, which, he notes, is consistent with Abanicos statement to police that his accomplices were not gang members.

We agree that in the absence of evidence that the name Chente, a diminutive of Vincent, has some sort of gang related meaning or connotationi.e., only Norteos gang members called him Chente or Lopez typically signed Norteos gang graffiti using that namethe nickname does not reasonably suggest that Lopez actively participated in the Norteos gang.

Moreover, in the absence of evidence that Lopez had been jumped in or crimed in as a gang member or had committed other gang related offenses or been involved with other Norteos in gang related actions against Sureos, we question whether the evidence that (1) Lopez had two 49er jackets and a four-dot tattoo, (2) he associated with his brother, girlfriend, and a neighbor, he was victimized by Sureos, and he participated with Abanico and some third person in the instant crimes would be sufficient to establish that Lopez was a member of the Norteos gang.

However, a conviction for street terrorism does not require a finding that Lopez was a member. On the contrary, one can be an active participant in a criminal street gang without being a formal member. (In re Jose P. (2003) 106 Cal.App.4th 458, 466.)

Here, the evidence summarized above is as strong as that in Casteneda, and we find it sufficient to support a finding that Lopezs involvement Norteos was not simply as passive or nominal associate but as an active participant.

Gang Enhancements[5]

To prove the gang enhancement allegations, the prosecution had to show, and the jury had to find, among other things, that the defendants crimes were committed (1) for the benefit of, at the direction of, or in association with any criminal street gang . . . . ( 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)

Defendants claim there is insufficient evidence to support any such findings.

As noted, Officer Heath opined that that the crimes here benefited the Norteos gang by providing money, instilling fear in the community, and bolstering the reputation of gang members. He conceded, however, that gang members can freelance or commit crimes for their own personal reasons or gain.

In People v. Martinez (2004) 116 Cal.App.4th 753, the trial court imposed a gang-registration requirement on the defendant because it found that the auto burglary he committed was committed for the benefit of his gangi.e., was gang related. (Id. at pp. 753-754; see Pen. Code, 186.30, subd. (b)(3).) The appellate court reversed. It concluded that a crime may not be found to be gang related simply because the defendant has a criminal history and prior gang affiliation. Rather there must be evidence that the current crime itself was somehow connected to the activities of the gang. (People v. Martinez, supra, 116 Cal.App.4th at p. 761.) The court explained, We do not conclude that a defendants personal affiliations and criminal record are without consequence in finding a gang related crime . . . . To the contrary, a defendants history of participation in gang activities or criminal offenses may prove that a crime not otherwise or intrinsically gang related nevertheless falls within the meaning of [the gang registration statute]. Thus, a crime committed by a defendant in association with other gang members or demonstrated to promote gang objectives may be gang related. However, the record must provide some evidentiary support, other than merely the defendants record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committedfor the benefit of, at the direction of, or in association with a criminal street gang. (Id. at p. 757, italics added; see People v. Gardeley, supra, 14 Cal.4th at p. 622-623 [gang membership alone not enough to prove intent to promote, further, or assist criminal conduct by gang members].)

Turning to the facts, the court observed that [a]uto burglary is a crime, but not one necessarily gang related, and the circumstances of the offense as described in the record before us fail to connect the offense with defendants gang activities. While the probation report indicates that the auto burglary was committed by defendant and a companion, the accomplice is not identified as a gang member. Nor does the probation report give us any indication that this particular auto burglary, even if committed by someone identified as a certified Sureno gang member, was directed by, associated with, or benefited his criminal street gang. Neither the investigating officer nor the probation officer even suggested that the auto burglary was other than a crime intended to benefit defendant personally. (People v. Martinez, supra, 116 Cal.App.4th at p. 757, fn. omitted.)

In In re Frank S. (2000) 141 Cal.App.4th 1192, the minor was stopped by police and found in possession of a concealed knife, drugs, and a red bandana. At the time, the minor explained that he needed the knife for protection against Southerners because they thought he supported northern gangs, and for that reason they had attacked him two days before. The minor also stated he had several friends in the northern gangs. (Id. at p. 1195.)

At the jurisdictional hearing, a gang expert testified concerning a local faction of the Norteos gang and described their territory, color, hand sign, structure, primary activities, and specific numerals. The expert noted that the minor considered himself an affiliate of the Norteos during intake at the juvenile detention facility and opined that doing so qualified the minor as a gang member. Given the red bandana, the minors admitted affiliation, and the view that the minor had the knife to protect against Southerners, the expert concluded that the minor was currently an active gang member. She further opined that the minor possessed the knife to protect himself, explaining that gang members use knives for protection from rival gang members and to assault rival gangs. She explained that possessing a knife benefited the Norteos because it helped provide protection should they be assaulted. She also opined that the minor possessed the knife with the specific intent to benefit his gang. (In re Frank S. supra, 141 Cal.App.4th at p. 1195.) The juvenile court found that the minor carried the knife for the benefit of a criminal street gang. (Ibid.)

On appeal, the court reversed. The court initially found that the experts opinion concerning the ultimate issue of whether the minor specifically intended to benefit his gang exceeded the scope of subjects about which a gang expert properly may testify. (In re Frank S., supra, 141 Cal.App.4th at pp. 1196-1198.) Apart from that opinion, the court noted that there was no evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minors statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minors specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended. (Id. at p. 1199.)

Here, except for Officer Heaths opinion that both Abanico and Lopez were active gang members and the instant crimes were the sort committed by the Norteos, there was no specific evidence connecting the offenses with the Norteos gang. There was no evidence the third perpetrator was a gang member; no evidence the third person knew about Abanicos and Lopezs gang affiliation; no evidence the crimes took place on the Norteos territory; no evidence the perpetrators thought the victims were Sureos; no evidence the perpetrators made gang related statements to any of the victims before, during or after the incident; no evidence they made gang-related brags or boasts during or after the incident that could have been heard by third parties; no evidence people in the neighborhood or members of the community in general understood the incident to be gang related; no evidence the crimes instilled fear in anyone other than the victims; and no evidence the proceeds from incident went other gang members or anyone else besides the three perpetrators.

In the absence of such evidence, the experts testimony about defendants gang affiliation and the types of crimes committed does not support a finding beyond a reasonable doubt that the crimes were committed for the benefit of the Norteos gang. In our view, such a conclusion is pure speculation.

We reject the Attorney Generals reliance on People v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin) to support the enhancements.

In Olguin, three members of the Southside F Troop gang, an Hispanic gang, armed themselves and went looking for the person who had spray painted over their territorial marker and replaced it with the logo of the Shelley Street gang, an act that the three gang members interpreted as a sign of disrespect and a challenge to their territorial claim. They encountered two men on Shelley Street, one of whom identified his cousin as the person they were looking for. As the three Southsiders walked away, that cousin and other cousins walked up and followed the Southsiders, yelling  Shelley Street.  (Olguin, supra, 31 Cal.App.4th at pp. 1366-1367.) The Southsiders stopped and yelled back. Then one Southsider knocked one of the cousins down. When he stood up, one of the Southsiders shot and killed him. (Ibid.)

At trial, the gang expert discussed the importance of territory to Hispanic gangs, explaining that graffiti is used to mark the gangs territory and that crossing out a gangs graffiti is a form of disrespect. He said that respect, usually in the form of fear, is of paramount importance to Hispanic gangs, so crossing out graffiti or calling out a gangs name to members of a rival ganganother demonstration of disrespectoften results in a violent confrontation. Mutual challenges of this sort have become the expected prelude for violent confrontations between gang members, especially where groups have gathered or weapons are available. The expert further opined that the murder was committed for the benefit of Southside. ( Olguin, supra, 31 Cal.App.4th at p. 1367.)

On appeal, the defendants argued that the evidence showed that the shooting was personal not gang related. Although the court found the argument plausible, it noted that there was overwhelming evidence to the contrary, which the jury believed. (Olguin, supra, 31 Cal.App.4th at p. 1382.) The court also pointed out that the shooting was precipitated by the provocative act of crossing out gang graffiti and replacing it with the name of another gang and then shouting that gangs name to rival gang members. Furthermore, there was no prior relationship between the killers and their victim, and no reason for animosity other than the gang-related disrespect. Consequently, the court concluded that any rational trier of fact would have concluded [the victim] died not because he insulted [the shooter], but because he disrespected Southside F Troop. (Id. at p. 1383.)

The factual dissimilarity between Olguin and this case is obvious. In Olguin, there was overwhelming evidence that the retaliatory criminal conduct was motivated by gang issues of disrespect and territoriality rather than by personal animosity. Here, the crimes involved taking property, not retaliation against rivals; and the motive for theft or robbery can just as easily be personal or gang related. Indeed, Officer Heath acknowledged that gang members can commit crimes for their own personal reasons. Moreover, as noted, there is no evidence the crimes occurred on the Norteos gangs territory or that the victims were rival gang members. Nor is there evidence that all three perpetrators were members of the Norteos gang. Thus, Olguin does not suggest that the evidence here is sufficient to support a finding that the crimes were committed for the benefit of the Norteos gang.

The gang enhancements here also could have been based on findings that the crimes were committed at the direction of or in association with a criminal street gang. ( 186.22, subd. (b)(1).)

There is no evidence that the crimes were committed at the direction of a criminal street gang, and the Attorney General does not suggest otherwise. ( 186.22, subd. (b)1).) Thus, we focus on whether the evidence supports a finding that the crimes were committed in association with [a] criminal street gang. (Ibid.) As noted, Officer Heath opined that the crimes were committed in association with a gang.

Citing People v. Morales (2003) 112 Cal.App.4th 1176 (Morales), the Attorney General argues that the evidence here supports a finding that each defendant committed the crime in association with [a] criminal street gang (186.22, subd. (b)(1))i.e., the Norteos street gang.

In Morales, the defendant and two fellow gang members entered a house and robbed the occupants. The defendant was convicted of robbery with a gang enhancement. On appeal, he argued that the fact that all three perpetrators were members of the same gang did not by itself support the gang enhancement. (Morales, supra, 112 Cal.App.4th at p. 1197.)

In rejecting this claim, the court noted that the gang expert testified that the robbery involved three gang members acting in association with each other. The gang provided a ready-made manpower pool . . . . That is, one gang member would choose to commit a crime in association with other gang members because he could count on their loyalty. They would watch his back . . . . In addition, the very presence of multiple gang members would be intimidating. The crime would benefit the individual gang members with notoriety among the gang, and the gang with notoriety among rival gang members and the general public.  (Morales, supra, 112 Cal.App.4th at p. 1197.)

The court acknowledged that arguably, the mere fact that three gang members committed a crime might not by itself be enough to establish that it was committed for the benefit of the gang. However, the evidence of their joint participation was nevertheless sufficient to support a finding that each member committed the robbery in association with a gang. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members. (Morales, supra, 112 Cal.App.4th at p. 1198.)

The gang statute requires that a crime be committed in association with any criminal street gang and not merely in association with a person who happens to be a gang member. Our fundamental task in determining the meaning of the statutory phrase is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. (In re Harris (1993) 5 Cal.4th 813, 844.) We begin by examining the statutory language, giving the words their usual and ordinary meaning. If we find no ambiguity, we presume the lawmakers meant what they said, and the plain meaning of the language governs. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.)

We note that in other parts of section 186.22, the Legislature specifically uses the term gang memberse.g., with knowledge that its members engage in or have engaged in a pattern of criminal gang activity ( 186.22, subd. (a)); and willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang ( 186.22, subds. (a) and (b)(1).) Generally, where the Legislature uses different words or phrases in one part of a statute than it does in other sections or in a similar statute concerning a related subject, we presume that it intended a different meaning. (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 507; Campbell v. Zolin (1995) 33 Cal.App.4th 489, 498.)

In our view, therefore, if one must commit a crime in association with a gang, and not simply in association with a person who also happens to be a gang member, then the evidence must show that a gang was involved in the commission of the crime or the crime must somehow be gang related. If that were not the case, then a gang enhancement would apply whenever a non-gang member assists a single gang member in committing a crime, even if the gang member was acting for his own personal reasons. Moreover, the enhancement would not apply to the gang member himself because he would not have been acting in association with his gang or a gang member.

With this in mind, we agree with Morales, supra, 112 Cal.App.4th 1176,insofar as it stands for the proposition that where three (or more) gang members choose to commit a crime together, and thereby rely on and use the bonds of gang loyalty to act collectively, and there are no other nongang perpetrators, it is reasonable to infer that the crime was not only gang related but, in essence, committed by the gang itself. Thus, regardless of whether the evidence there was sufficient to show that the crime was committed for the benefit of the gang, it was sufficient to show that each of the three gang members acted in association with [a] criminal street gang. (186.22, subd. (b)(1).)

Here, the record does not reveal collective criminal action by only gang members, which, as in Morales, might imply that the crimes were committed by the Norteos gang or at least that they were gang related. Rather, the evidence shows that Abanico was a gang member, and Lopez was an associate, or perhaps a gang member. There is no evidence that the third perpetrator was a gang member. Moreover, as discussed above, there is no evidence other than Abanicos and Lopezs gang affiliation suggesting that the incident was gang motivated or gang related. Under the circumstances, therefore, we do not find the evidence concerning gang affiliation sufficient, by itself, to support a finding that their crimes were committed in association with [a] criminal street gang. (186.22, subd. (b)(1).) Morales does not suggest that the evidence is sufficient.

In sum, therefore, we agree with the defendants that there is insufficient evidence to support the jurys finding on the gang enhancement allegations. Accordingly, those enhancement findings must be stricken.[6]

Knowledge of Predicate Offense

Lopez contends that the prosecution presented no evidence to show that he knew about the other crimes that Officer Heath testified were committed by other members of the Norteos gang. Consequently, he claims his convictions cannot stand.

Section 186.22, subdivision (a) requires proof that the defendant actively participated in a criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity . . . .[7] (186.22, subd. (a).) However, a conviction does not require proof that the defendant was aware of each, or any, of the specific crimes that the prosecutor introduces to establish a pattern of criminal gang activity. (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.) Rather, the prosecution need only prove that defendant was aware that members of his or her gang participated in at least two offenses meeting the statutory requirements within a three-year time frame. The charged offense can serve as one of the predicate offenses (People v. Loeun (1997) 17 Cal.4th 1, 8), and such knowledge can be proved by circumstantial evidence.

Admission of Hearsay

Lopez contends that the court erred in admitting hearsay to show the predicate offenses necessary to establish a pattern of criminal gang activity. ( 186.22, subds. (b)(1), (e), and (f).) He notes that in testifying that various other offenses were committed by Norteos gang members, Officer Heath relied on information contained in police reports. He argues that the information was hearsay, and its admission violated his constitutional right to confrontation as explained in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Davis v. Washington (2006) ___ U.S. ___ [126 S.Ct. 2266] (Davis).) We disagree.

In Crawford, supra, 541 U.S. 36, the Supreme Court concluded that out-of-court statements made by witnesses are subject to the confrontation clause. (Id. at pp. 50-52.) The court explained that the confrontation clause bars use of the testimonial statement of an unavailable witness where there has been no prior opportunity to cross-examine the witness. (Id. at p. 68.) Thus, under Crawford, testimonial statements may not be admitted unless the defendant had an opportunity to cross-examine the person whose hearsay testimony is sought to be introduced. The test for determining whether a statement is testimonial is not whether its use in a potential trial is foreseeable. Rather, the test is whether the statement was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue. (Id. at pp. 68-69.) However, [w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law . . . . (Id. at p. 68.) For example, the Supreme Court specifically identified business records as nontestimonial evidence. (Id. at p. 56.)

In Davis, supra, ___ U.S. ___ [126 S.Ct. 2266], the court held that [s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Davis, supra, ___ U.S. ___, ___ [126 S.Ct. 2266, 2273-2274, fn. omitted].) There, the court ruled that statements elicited during a 911 call were not testimonial. (Davis, supra, ___ U.S. ___, ___ [126 S.Ct. 2266, 2277].) The caller was not acting as a witness; she was not testifying. What she said was not a weaker substitute for live testimony at trial . . . . (Davis, supra, ___ U.S. ___, ___ [126 S.Ct. 2266, 2277].) On the other hand, the court stated that statements elicited from a police interrogation that was part of an investigation into possibly criminal past conduct are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial. (Davis, supra, ___ U.S. ___, ___ [126 S.Ct. 2266, 2278, fn. omitted].)

In People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas), the court rejected a similar claim that the gang experts reliance on out-of-court statements in concluding that other crimes were committed by gang members violated his right to confrontation under Crawford. (Thomas, supra, 130 Cal.App.4th at p. 1210.) The court noted that as a general rule, experts are permitted to identify and explain the information and sources on which they base their opinions, and that such sources may include hearsay. (Id. at pp. 1209-1210; see Evid. Code, 801; People v. Gardeley, supra, 14 Cal.4th 605, 617-618.) The court further noted that expert opinion may be founded on various matters, irrespective of whether they are themselves admissible. (Thomas, supra, 130 Cal.App.4th at pp. 1209-1210.) The court then reasoned that Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the experts opinion. (Id. at p. 1210; cf. People v. Butler (2005) 127 Cal.App.4th 49, 59 [spontaneous statements by eyewitnesses not inadmissible under Crawford]; People v. Saffold (2005) 127 Cal.App.4th 979, 984 [same re proof of service]; People v. Corella (2004) 122 Cal.App.4th 461, 467-469 [same re victims statement to 911 operator]; People v. Johnson (2004) 121 Cal.App.4th 1409, 1412-1413 [same re lab report analyzing contraband].)

We agree with the Thomas courts analysis and conclusion. As we explained in People v. Vy, supra, 122 Cal.App.4th 1209, 1223, footnote 9, [O]pinion testimony from a gang expert, subject to the limitations applicable to expert testimony generally, is proper. [Citation.] Such an expertlike other expertsmay 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 experts personal investigation of past crimes by gang members and information about gangs learned from the experts colleagues or from other law enforcement agencies. [Citations.] (See also People v. Duran (2002) 97 Cal.App.4th 1448, 1465.)

Here, the reports upon which Officer Heath based his opinion were not admitted for the truth of the matter asserted but to reveal the basis for his opinion concerning whether the other crimes were perpetrated by gang members. That information, therefore, did not constitute evidence of statements that were made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (Evid. Code, 1200, subd. (a); see, e.g., People v. Mayfield (1997) 14 Cal.4th 668, 741.)[8]

Consecutive Sentences

Citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely), defendant contends that the imposition of consecutive terms based on facts found by the trial court violated his constitutional rights to a due process and a jury trial.

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that, except for prior convictions, a defendant has a right to a jury trial on any fact that increases the punishment for an offense beyond the statutory maximum that could be imposed for that offense based on the facts reflected in the jurys verdict alone. (Id. at p. 490.)

In Blakely, the court held that the prescribed  statutory maximum  for purposes of the right to a jury trial is not necessarily the maximum penalty stated in statute for the particular offense; rather, it is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303, original italics.)

In People v. Black (2005) 35 Cal.4th 1238 (Black), the California Supreme Court rejected claims that the imposition of an upper term and consecutive sentences under Californias Determinate Sentencing Law violated the defendants right to a jury trial, as outlined in Apprendi and Blakely because it permitted the court to impose those sentences based on facts found by the court at sentencing. However, the California Supreme Court disagreed, holding that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial. (People v. Black, supra, 35 Cal.4th at p. 1244.)

Recently, in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court overruled with Black and held that Californias Determinate Sentencing Law violates a defendants Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term for a particular offense based on facts found by the court by a preponderance of the evidence rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. ___, ___ [127 S.Ct. 856, 868-871].) The Cunningham court did not, however, address whether imposition of consecutive terms implicates a defendants right to a jury trial.

Initially, we note that the United States Supreme Court vacated the Black decision in its entirety and remanded for reconsideration in light of Cunningham. (Black v. California (Feb. 20, 2007, No. 05-6793) ___ U.S. ___ [167 L.Ed.2d 36].) Generally, a decision is rendered null and void when it is reversed or vacated. (See 9 Witkin Cal. Procedure (4th ed. 1997) Appeal, 758, p. 783, italics added [The effect of an unqualified reversal . . . is to vacate the judgment, and to leave the case 'at large' for further proceedings as if it had never been tried, and as if no judgment had ever been rendered].) Accordingly, we do not consider Black to be binding authority concerning the imposition of consecutive terms. (See Auto Equity Sales, Inc. v.Superior Court (1962) 57 Cal.2d 450, 455.) Nevertheless, we independently reach the same conclusion that the California Supreme Court reached in Black on that issue.

First, in Black, the court reasoned that Blakelys underlying rationale, which formed the basis for Cunningham, is inapplicable to a trial courts decision whether to require that sentences on two or more offenses be served consecutively or concurrently. (Black, supra, 35 Cal.4th at p. 1262.) The jurys verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense. When a judge considers the circumstances of each offense and the defendants criminal history in determining whether the sentences are to be served concurrently or consecutively, he or she cannot be said to have usurped the jurys historical role. Permitting a judge to make any factual findings related to the choice between concurrent or consecutive sentences does not create an opportunity for legislatures to eliminate the right to a jury trial on elements of the offenses. (Id. at p. 1263.)

We agree with the courts rationale and believe that it is likely to reaffirm it and again hold that the concerns underlying Apprendi, Blakely, and Cunningham are not implicated by the imposition of consecutive sentences.

Moreover, we note that section 669 imposes an affirmative duty on a sentencing court to determine whether the terms of imprisonment for multiple convictions are to be served concurrently or consecutively. (In re Calhoun (1976) 17 Cal.3d 75, 80-81.) That section leaves the decision to the courts discretion. (People v. Jenkins (1995) 10 Cal.4th 234, 255-256.) While there is a statutory presumption in favor of the middle term as the sentence for an offense [citation], there is no comparable statutory presumption in favor of concurrent rather than consecutive sentences for multiple offenses except where consecutive sentencing is statutorily required. The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) Moreover, although a court must state reasons for imposing consecutive sentences (see Cal. Rules of Court, rule 4.406(b)(5); People v. Walker (1978) 83 Cal.App.3d 619, 622), that requirement does not create a presumption or entitlement to concurrent terms. (People v. Hernandez (2007) 147 Cal.App.4th 1266, 1271; see In re Podesto (1976) 15 Cal.3d 921, 937.) Rather requiring a statement of reasons is intended to ensure careful sentencing, meaningful appellate review, and public confidence in sentencing procedures. (People v. Martin (1986) 42 Cal.3d 437, 449-450.)

In short, defendant had the right at sentencing to have the court exercise its discretion concerning whether to impose concurrent or consecutive terms. He did not have, however, a statutory right to a particular result because there is no statutory norm in multiple conviction cases. As the Supreme Court said in Blakely, that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. (Blakelyv. Washington, supra, 542 U.S. at p. 309.)

Failure to Dismiss Strike

Lopez contends that the court abused its discretion in failing to dismiss his strike.[9]

In Romero, supra, 13 Cal.4th 497, the court stated that a trial courts discretion to dismiss strikes in furtherance of justice is limited. (Id. at p. 530.) The trial court must consider both the constitutional rights of the defendant and the interests of society. (Ibid.) It may not dismiss a strike to accommodate judicial convenience, relieve court congestion, or respond to a guilty plea. (Id. at p. 531.) Nor may a court dismiss a strike because it disagrees with the harsh effects the three strikes law would have on the defendant and without first considering the defendants background, criminal history, and the nature of his present offense. (Ibid.)

For example, in People v. Williams (1998) 17 Cal.4th 148, the trial court dismissed one of the defendants strikes because it was 13 years old and after it, the defendant had not committed another violent crime. However, the California Supreme Court found that the trial court abused its discretion. (Id. at pp. 162-164.) The court noted that the defendant had a 19-year criminal history that included strike convictions for attempted robbery and rape as well as non-strike convictions for spousal battery, possession of firearms, and driving under the influence. The court explained, that in exercising its discretion, the trial court should give no weight to factors extrinsic to the [Three Strikes] scheme and must accord preponderant weight . . .  to factors intrinsic to the scheme, such as the nature and circumstances of the defendants present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. (Id. at p. 161.) The critical determination is whether the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies . . . . (Ibid.)

Recently, in People v. Carmony (2004) 33 Cal.4th 367, the California Supreme Court explained that the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. (Id. at p. 376.) In light of this presumption, an abuse of discretion in declining to dismiss a strike occurs only in limited circumstances. (Ibid.) For example, where the trial court is unaware of its discretion to dismiss [citation]; where the court considered impermissible factors in declining to dismiss; where application of the sentencing norms established by three strikes law produces an arbitrary, capricious, or patently absurd result under the specific facts of a particular case[]; or where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme, that is, where the relevant factors manifestly support striking of a prior conviction and no reasonable minds could differ . . . . (Ibid.)

On appeal, the burden is on Lopez to show that the courts refusal to dismiss his strike was irrational or arbitrary. (People v. Barrera (1999) 70 Cal.App.4th 541, 554.)

The record reveals that at the sentencing hearing, Lopez made a brief oral request to have his strike dismissed under Romero, supra, 13 Cal.4th 497. Defense counsel asserted that when Lopez was a juvenile, he was with another man who had a toy gun, and there was a robbery. Counsel argued that because Lopez was a juvenile and his involvement was minimal, the strike should be dismissed.

The court observed that there was no evidence the gun was a toy. It also noted that the instant offenses were robberies. Accordingly, [t]heres just no way the Court is going to consider removing a robbery strike from a robbery conviction, one in which five victims were robbed. So the motion is denied.

Later, when it imposed sentence on Lopez, the court stated, The strike law as I understand it still permits some concurrent sentencing in a situation like this. The strike law does not mandate, where thethe operative facts are similar, a consecutive sentence for every victim. But with respect to Mr. Lopez, if even one of the terms is consecutive, the term that . . . that that results . . . is longer than he would [be] expect[ed] to live out, and that is a minimum really, because the Legislature has found that whe