At issue in this case are certain provisions of the Street Terrorism Enforcement and Prevention Act, also known as the STEP Act, enacted by the Legislature in 1988. (Pen. Code, § 186.20 et seq.) Underlying the STEP Act was the Legislature's recognition that "California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (Pen. Code, § 186.21.) The act's express purpose was "to seek the eradication of criminal activity by street gangs." (Ibid.)
As relevant here, the STEP Act imposes certain penal consequences when crimes are committed "for the benefit of, at the direction of, or in association
Here, based on the jury's determination that the prosecution had satisfied the STEP Act requirements, the trial court imposed increased sentences as to both defendants. The Court of Appeal, however, struck the sentence enhancements on the ground that the prosecution had failed to prove the requisite "pattern of criminal gang activity." The Court of Appeal held that evidence of "two or more" predicate offenses by gang members can establish a "pattern of criminal gang activity" only if each such offense is shown to be "gang related." We disagree that the predicate offenses must be "gang related." We also disagree with the Court of Appeal's conclusion that the prosecution failed to prove the requisite pattern of criminal gang activity.
On August 4, 1992, about 2 a.m., Edward Bruno was riding in a car with some friends. Bruno, who had been drinking, needed to urinate. The car stopped near Farm Drive and Old Hillsdale Avenue in San Jose. While Bruno was relieving himself in the carport of an apartment complex, which happened to be in an area controlled by the Family Crip gang, he was approached by defendants Rochelle Lonel Gardeley and Tommie James Thompson, and one Tyrone Dermont Watkins. Gardeley shoved Bruno and asked, "What are you doing here, white boy?" Bruno pushed Gardeley back and punched him. Someone then hit Bruno in the head. When Bruno tried to get away, the three men pursued him. They knocked Bruno to the ground, repeatedly punched and kicked him, hit his thighs and rib cage with a bat or stick, and broke a large rock into pieces on his head. Taken from Bruno were
Gardeley and Thompson were charged with attempted murder (Pen. Code, §§ 664 and 187);
At trial, the prosecution presented evidence regarding the attack on Edward Bruno. Thereafter, the prosecution called as a witness Detective Patrick Boyd of the San Jose Police Department, who had 23 years of experience in the investigation of criminal street gangs. Boyd had interviewed both defendants after their arrests in this case.
In the course of his testimony, Detective Boyd mentioned that he had also interviewed Tyrone Watkins, Bruno's third assailant. When the prosecutor
Out of the jury's presence, the trial court held a hearing to allow the prosecution to make an offer of proof regarding the statements by Watkins and the other "hearsay" evidence that it intended to present. At the hearing, Detective Boyd provided additional details of his familiarity with the criminal activities of the Family Crip gang. Thereafter, the trial court ruled that Boyd could testify as an expert on criminal gang activity.
In the jury's presence, the trial court overruled defendant Thompson's hearsay objection to the questions the prosecutor asked Detective Boyd about the Tyrone Watkins interview. The court then informed the jury that certain "hearsay" would be introduced pertaining to Tyrone Watkins and other matters, but that the jury "may not consider those [hearsay] statements for the truth of the matter, but only as they give rise ... to the expert opinion in which questions will be asked which will follow." Immediately thereafter Detective Boyd testified that Tyrone Watkins had said that his street name was "T-Bone," and that he had been a member of the Family Crip gang since 1988. Boyd added that several other individuals had also admitted to him their membership in the Family Crip gang.
The prosecutor asked Detective Boyd for his opinion as to the primary purpose or activity of the Family Crip gang. Detective Boyd responded that based on investigations of hundreds of gang-related offenses, conversations with defendants and other Family Crip members, as well as information from fellow officers and various law enforcement agencies, it was his opinion that the Family Crip gang's primary purpose was to sell narcotics, but that the gang also engaged in witness intimidation and other acts of violence to further its drug-dealing activities.
The prosecutor then gave Detective Boyd this scenario: "Assuming hypothetically that we have an incident that took place at about 2:00 a.m. on [Old] Hillsdale and Farm [in San Jose] in which Family Crip gang members were present and one of which is out attempting to sell cocaine and a second is found with cocaine near his possession when detained, and a white male is
Detective Boyd explained: It is common practice for several gang members acting in concert to assault a person in full view of residents of an area where the gang sells drugs. Such attacks serve to intimidate the residents and to dissuade them from reporting the gang's drug-dealing activities to police. Gang members typically view a dispute or argument with someone who is not a member of the gang as a "challenge" to the gang's authority, and they respond by trying to "dominate" the person physically, that is, they might "beat the person senseless, throw rocks over his head, kick him" and do this "where a lot of people can witness it." When gang members "terrorize people ... [who] have to live there," the "fear factor" allows the gang to "go right back to dope dealing" day after day in the same area.
Thereafter, the prosecutor questioned Detective Boyd regarding three separate criminal incidents. The most recent of the three was a May 2, 1992, shooting at an apartment complex involving defendant Thompson and one Mario Phipps, who Boyd confirmed was a Family Crip member. The second incident took place on July 17, 1989, in San Jose; it involved a threat against a drug dealer, Michael Halliburton, by defendant Gardeley and three other persons, who Detective Boyd knew to be members of the Family Crip gang. The third incident occurred on December 1, 1987, when two police officers observed defendant Gardeley and others in the vicinity of Nancy Lane and Florence in San Jose flagging down cars in a manner that the officers associated with the sale of narcotics; Gardeley fled, but when stopped by the officers was found to be in possession of crack cocaine. In the expert opinion of Detective Boyd, each of the three incidents just described was "gang related" criminal activity of the Family Crip gang.
The prosecutor then offered into evidence, without objection by the defense, certified copies of three informations, together with abstracts of judgment and other official court records. The first information charged Mario Phipps (not a defendant in this case) with a May 2, 1992, shooting at an occupied dwelling with a shotgun (§ 246); the second information charged defendant Gardeley with a July 17, 1989, incident of being an accessory to a felony (§ 32); and the third information charged defendant
The jury convicted defendants Gardeley and Thompson of attempted murder (§§ 664 and 187), and of assault with a deadly weapon with great bodily injury (§§ 245, subd. (a)(1), 12022.7), and found true the allegations that the offenses had been committed "for the benefit of, at the direction of, or in association with [a] criminal street gang" (§ 186.22, subd. (b)(1)). The jury also convicted both defendants of committing assault and/or battery "for the benefit of, at the direction of, or in association with, [a] criminal street gang" (§ 186.22, former subd. (c)), and in addition convicted defendant Gardeley of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)).
The Court of Appeal reversed the convictions under former subdivision (c) of section 186.22 (committing an assault and/or battery "for the benefit of, at the direction of, or in association with, [a] criminal street gang"), and struck the criminal street gang sentence enhancements that the trial court had imposed under subdivision (b)(1) of section 186.22, concluding that the prosecution had failed to prove the statutorily required "two or more" predicate offenses to establish that the Family Crip gang was a criminal street gang within the meaning of the statute; in all other respects, the court affirmed the judgments. The Court of Appeal reasoned that the prosecution had to prove not only the statutory requirements pertaining to predicate offenses, but also that each such offense was "gang related." According to the Court of Appeal, Detective Boyd's expert opinion testimony that the three separate criminal incidents (involving defendants Gardeley and Thompson and other Family Crip members and committed before the charges in this case) were "gang related" was not competent evidence on the issue because Boyd's opinion was not based on facts in evidence and Boyd had no personal knowledge of the facts underlying the three incidents.
We granted the Attorney General's petition for review.
As mentioned at the outset, the Legislature in 1988 enacted the Street Terrorism Enforcement and Prevention Act, also known as the STEP Act. (§ 186.20 et seq.) As relevant here, the STEP Act prescribes certain penal consequences for crimes committed "for the benefit of, at the direction of, or in association with" a criminal street gang. (§ 186.22.) Underlying the enactment of this statutory scheme was a legislative finding declaring that "California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (§ 186.21.) To combat the problem, the Legislature declared its intent "to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs." (Ibid.)
Under either provision, the offense of which the defendant is convicted in the present case must have been "committed for the benefit of, at the
To summarize, to subject a defendant to the penal consequences of the STEP Act, the prosecution must prove that the crime for which the defendant
In the sections that follow, we explain how the prosecution here satisfied these statutory requirements.
We first consider the issue of gang expert testimony, which in this case was given by Detective Patrick Boyd of the San Jose Police Department.
California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801).
Evidence Code section 801 limits expert opinion testimony to an opinion that is "[b]ased on matter ... perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates...." (Id., subd. (b).)
Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Evid. Code, § 801, subd. (b); People v. Montiel (1993) 5 Cal.4th 877, 918-919 [21 Cal.Rptr.2d 705, 855 P.2d 1277]; Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524 [3 Cal.Rptr.2d 833]; Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923 [184 Cal.Rptr. 393].) Of course, any material that forms the basis of an expert's opinion testimony must be reliable. (1 Witkin, Cal. Evidence (3d ed. 1986) The Opinion Rule, § 477, p. 448.) For "the law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based." (Kennemur v. State of California, supra, at p. 923.)
So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. (In re Fields (1990) 51 Cal.3d 1063, 1070 [275 Cal.Rptr. 384, 800 P.2d 862] [expert witness can base "opinion on reliable hearsay, including out-of-court declarations of other persons"]; see Fed. Rules Evid., rule 703, 28 U.S.C.; 2 McCormick on Evidence, supra, § 324.3, pp. 372-373.) And because Evidence Code section 802 allows an expert witness to "state on direct examination the reasons for his opinion and the matter ... upon which it is based," an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. (People v. Shattuck (1895) 109 Cal. 673, 678 [42 P. 315] [medical expert could testify to patient's complaints in order "to give a clinical history of the case to understand the significance of her symptoms"]; McElligott v. Freeland (1934) 139 Cal.App. 143, 157-158 [33 P.2d 430] [certified public accountant could testify to information he relied on in property valuation]; see People v. Wash (1993) 6 Cal.4th 215, 251 [24 Cal.Rptr.2d 421, 861 P.2d 1107] [prosecution could elicit out-of-court statements relied on by the defense expert]; 2 McCormick on Evidence, supra, § 324.3, p. 372 [explaining that under rule 703, Fed. Rules Evid., which allows the expert to disclose to the trier of fact the basis for expert opinion,
After giving Detective Boyd a "hypothetical" based on the facts of the assault in this case on Edward Bruno by three Family Crip members, the prosecutor asked Boyd if in his expert opinion an attack as described would be "gang-related activity." Boyd responded that it was a "classic" example of gang-related activity, explaining that criminal street gangs rely on such violent assaults to frighten the residents of an area where the gang members sell drugs, thereby securing the gang's drug-dealing stronghold. From this expert testimony by Detective Boyd, the jury could reasonably conclude that the attack on Bruno by members of the Family Crip gang including defendants was committed "for the benefit of, at the direction of, or in association with" that gang, and "with the specific intent to promote, further, or assist in ... criminal conduct by gang members" as specified in the STEP Act (§ 186.22, subd. (b)(1) and former subd. (c)).
Detective Boyd's testimony also provided much of the evidence necessary to establish that the Family Crip gang met the STEP Act's definition of a
Boyd testified that defendants Gardeley and Thompson admitted to membership in the Family Crips, and that Gardeley had been a member of the gang since 1983. Boyd also expressed his expert opinion that the primary activity of the Family Crip gang was the sale of narcotics, but that the gang also engaged in witness intimidation. (These are two of the offenses enumerated in subdivision (e) of section 186.22.) Boyd based this opinion on conversations with the defendants and with other Family Crip members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.
We conclude that this testimony by Detective Boyd provided a basis from which the jury could reasonably find that the Family Crip gang met the requirements of subdivision (f) of section 186.22 for a criminal street gang: (1) an "ongoing organization, association, or group of three or more persons" (2) that shares "a common name or common identifying ... symbol" and (3) that has "as one of its primary activities the commission of one or more" of the criminal acts enumerated in subdivision (e) of section 186.22 (namely, the sale of controlled substances (subd. (e)(4)) and witness intimidation (former subd. (e)(7), now subd. (e)(8)). Thus, through Detective Boyd's expert testimony, the prosecution satisfied most of the requirements of the STEP Act to prove that the Family Crip gang was a "criminal street gang." But the prosecution still had to establish the additional statutory requirement that the gang's members "individually or collectively engage in or have engaged in a pattern of criminal gang activity" (§ 186.22, subd. (f)), a point that we will discuss in the part that follows.
Application of another principle of statutory construction lends support to our conclusion that the Legislature did not intend that the predicate offenses must be "gang related." When the Legislature has used a term or phrase in
Defendants argue, however, that because the statute at issue is a penal statute, it must be construed in favor of defendants, necessitating reading into the statute the requirement that the predicate offenses comprising the statutorily required "pattern of criminal gang activity" be gang related. Defendants are wrong. Although it is the policy of this state to have courts construe penal laws as favorably to criminal defendants as reasonably permitted by the statutory language and circumstances of the application of the particular law at issue (People v. Bland (1995) 10 Cal.4th 991, 1001 [43 Cal.Rptr.2d 77, 898 P.2d 391]; People v. Overstreet (1986) 42 Cal.3d 891, 896 [231 Cal.Rptr. 213, 726 P.2d 1288]), that policy generally comes into play only when the language of the penal law "is susceptible of two constructions" (People v. Overstreet, supra, at p. 896), a situation not present here.
Defendants insist that even in the absence of legislative intent to limit the crimes that comprise the statutorily required "pattern of criminal gang activity" to those that are gang related, considerations of due process require this court to read such a limitation into subdivision (e) of section 186.22. In support, defendants cite Lanzetta v. New Jersey (1939) 306 U.S. 451 [83 L.Ed. 888, 59 S.Ct. 618]. In that case, the United States Supreme Court struck down on due process grounds a conviction obtained under a New Jersey statute that imposed criminal penalties for membership in a gang by any person "`convicted at least three times of being a disorderly person, or... convicted of any crime in this or in any other State.'" (Id. at p. 452 [83 L.Ed. at pp. 889-890], quoting the New Jersey statute.) The New Jersey
We have a different situation here. The STEP Act defines a criminal street gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more criminal acts enumerated [in the statute], [and] having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) The act defines "pattern of criminal gang activity" as "the commission, attempted commission, or solicitation of two or more [enumerated offenses occurring within a specified time period] and ... committed on separate occasions, or by two or more persons." (§ 186.22, subd. (e).)
Thus, to fall within the statutory definition of a "criminal street gang," there must be an ongoing association of at least three persons that has as one of its primary activities the commission of specific types of criminal activity, uses a common name or identifying sign or symbol, and has members who individually or collectively have actually engaged in "two or more" acts of specified criminal conduct committed either on separate occasions or by two or more persons. These detailed requirements of the STEP Act are sufficiently explicit to inform those who are subject to it what constitutes a criminal street gang for purposes of the act. (See Lanzetta v. New Jersey, supra, 306 U.S. at p. 453 [83 L.Ed. at p. 890].) In contrast, the New Jersey statute defined a gang merely by the phrase "consisting of two or more persons," a term so vague that persons of ordinary intelligence would necessarily have to guess at its meaning and application, because the statute brought within its range any noncriminal association or group. (Id. at pp. 453, 457 [83 L.Ed. at pp. 890, 892-893].)
There is yet another significant distinction that sets our statute apart from the New Jersey statute in Lanzetta v. New Jersey, supra, 306 U.S. 451. The New Jersey statute imposed criminal penalties for mere membership in a gang, condemning no act or omission. (Id. at p. 458 [83 L.Ed. at p. 893].) In contrast, our STEP Act does not criminalize mere gang membership; rather, it imposes increased criminal penalties only when the criminal conduct is felonious and committed not only "for the benefit of, at the direction of, or in association with" a group that meets the specific statutory conditions of a "criminal street gang," but also with the "specific intent to promote, further,
Evidence of other crimes committed by members of the Family Crip gang included the following: informations and other official court records showing that defendant Gardeley was convicted for a July 17, 1989, incident of being an accessory to a felony (Pen. Code, § 32) and for a December 1, 1987, incident of cocaine possession (Health & Saf. Code, § 11350), and that one Mario Phipps (who Detective Boyd testified was a member of the Family Crip gang) was convicted for a May 2, 1992, shooting at an inhabited dwelling (Pen. Code, § 246). Of these incidents, only the last one involved the commission of one of the statutorily enumerated offenses necessary to comprise the requisite "two or more" offenses by gang members and establishing a pattern of criminal gang activity. (See § 186.22, subd. (e)(5) [listing as one such offense "Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246."].) Therefore, through the documentary evidence of Family Crip gang member Phipps's conviction for shooting at an inhabited dwelling, the prosecution established one of the necessary predicate offenses.
Considering both the evidence of the attack in this case on victim Bruno by Family Crip gang members, as well as the documentary evidence of the conviction of Mario Phipps for shooting at an inhabited dwelling (testimony by Detective Boyd established Phipps's membership in the Family Crip gang), we conclude that the prosecution established the requisite "pattern of criminal gang activity" consisting of "two or more" statutorily enumerated offenses that were "committed on separate occasions, or by two or more persons." (See People v. Olguin, supra, 31 Cal.App.4th 1355, 1383 [holding the charged offenses can be considered in deciding upon the existence of a pattern of criminal gang activity]; In re Jose T. (1991) 230 Cal.App.3d 1455, 1462 [282 Cal.Rptr. 75] [same]; In re Lincoln L. (1990) 223 Cal.App.3d 322, 328 [272 Cal.Rptr. 852] [same]; accord, In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003 [279 Cal.Rptr. 236].)
Subdivision (e) of section 186.22 additionally requires, however, that of the requisite "two or more" predicate offenses, "at least one ... occurred after the effective date of this chapter [September 26, 1988,] and the last of those offenses occurred within three years after a prior offense." These requirements are satisfied here, as shown below.
Through a combination of expert opinion testimony, documentary evidence of an uncharged crime, and testimony by percipient witnesses to the charged crimes in this case, the prosecution in this case met its burden of proving each of the several elements set forth by the Legislature in the Street Terrorism Enforcement and Prevention Act (also known as the STEP Act). Accordingly, for their roles in the brutal attack on Edward Bruno, Family Crip gang members Gardeley and Thompson are appropriately subject to the penal consequences of the STEP Act. We therefore reverse the judgment of the Court of Appeal insofar as it set aside defendants' convictions under former subdivision (c) and struck the increased prison terms imposed under subdivision (b)(1) of section 186.22.
George, C.J., Mosk, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.
Appellants' petitions for a rehearing were denied February 19, 1997, and the opinion was modified to read as printed above.
In this case, the charging documents treated section 186.22, former subdivision (c) as a substantive offense. Because former subdivision (c) is no longer a part of the STEP Act, we need not decide whether that former provision created a substantive criminal offense or was only a penalty provision. (See e.g., People v. Bright (1996) 12 Cal.4th 652 [49 Cal.Rptr.2d 732, 909 P.2d 1354].) Defendants argue that In re Estrada (1965) 63 Cal.2d 740, 748 [48 Cal.Rptr. 172, 408 P.2d 948] mandates reversal of their convictions for violating former subdivision (c). The People concede that the 1994 amendments to the STEP Act repealed that former provision, but argue the repeal was inadvertent, and that Estrada's rule of abatement, therefore, does not apply. As earlier noted, for both defendants, the trial court stayed imposition of sentence on the violations of former subdivision (c). We decline to address the issue. (Cal. Rules of Court, rule 29.2(a).)
"(1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.
"(2) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1.
"(3) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1.
"(4) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code.
"(5) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.
"(6) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.
"(7) The intimidation of witnesses and victims, as defined in Section 136.1.
"(8) Grand theft of any vehicle, trailer, or vessel as described in Section 487h."
Because we conclude that the predicate offenses need not be gang related, we have no occasion to decide whether or not Detective Boyd's opinion testimony was competent evidence that each of the uncharged crimes was gang related.