P. v. Torres

Filed 2/22/07  P. v. Torres CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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  This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

                        Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge.  Affirmed.

                        Jennifer Savage, under appointment by the Court of Appeal, for Defendant and Appellant.

                        Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan J. Beale and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

                        Defendant Misael Ballinas Torres appeals from the judgment after a jury found him guilty of the crime of resisting and obstructing an officer, and found true the gang enhancement allegation that defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further, or assist in criminal conduct by members of that gang, within the meaning of Penal Code section 186.22, subdivision (d).  (All further statutory references are to the Penal Code.)  We affirm.

                        Defendant contends the trial court erred by permitting an expert on criminal street gangs to opine defendant specifically intended, by his act of resisting and obstructing an officer, to promote, further or assist in criminal conduct by members of a criminal street gang.  We conclude the trial court abused its discretion by permitting the expert witness to opine on defendant's specific intent.  For the reasons discussed post, this error was not prejudicial.  We further conclude substantial evidence otherwise supported the jury's finding defendant specifically intended to promote, further, or assist in criminal conduct by members of the gang.

CHARGES AND TRIAL

                        Defendant was charged in an information with one felony count of resisting and obstructing an officer, in violation of section 148, subdivision (a)(1).  The information further alleged that defendant committed the charged crime for the benefit of, at the direction of, or in association with the Southside Huntington Beach criminal street gang, and that defendant had the specific intent to promote, further, or assist in criminal conduct by members of that gang, within the meaning of section 186.22, subdivision  (d).[1] 

                        Defendant was tried before a jury.  Officer Scott McKean of the Huntington Beach Police Department was the only trial witness.  McKean testified that shortly after 5:00  p.m. on April  15, 2005, he noticed defendant standing in an alley of the Oak View area of Huntington Beach.  The Oak View area is the claimed turf of the Southside Huntington Beach gang (the gang).  McKean was aware defendant, an admitted member of the gang, was â€