NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
POOCHIGIAN, Acting P.J.
Defendant was charged with several crimes arising out of two incidents, which occurred about a month apart from each other in March and April of 2009.
The first incident was a robbery at a barbershop on March 4, 2009. Defendant
The second incident was a robbery and murder at a house party on April 9, 2009. Defendant was charged with premeditated murder (count 1; § 187, subd. (a)), robbery (count 2; § 212.5, subd. (a)), burglary (count 3; § 460, subd. (a)), and possession of a firearm by a felon (count 4; § 12021, subd. (a)(1).) The information alleged that three special circumstances applied to the murder: (1) it occurred during a burglary (§ 190.2, subd. (a)(17)(G)), (2) it occurred during a robbery (§ 190.2, subd. (a)(17)(A)), and (3) defendant was an active participant of a criminal street gang (§ 190.2, subd. (a)(22).) As to the murder count, the information alleged that a principal personally discharged a firearm causing death (§ 12022.53, subds. (c), (d) & (e)(1)). The information alleged that a principal was armed and personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b) & (e)(1)) during the commission of the murder, robbery, and burglary. The information further alleged that the burglary, robbery, and firearm possession offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
Finally, the information alleged defendant had one strike (§§ 667, subds. (a)-(i) & 1170.12, subds. (a)-(d)) and had served a prior prison term (§ 667.5, subd. (b).)
The jury convicted defendant on all counts, and found all special allegations, enhancements and circumstances true. The court found the prior conviction allegations true.
The court sentenced defendant to a determinate term of 48 years four months, plus a consecutive term of 55 years to life, plus a consecutive term of life in prison without parole. The court stayed the sentences imposed on counts 2, 3, 4, 6, 10, and 11 pursuant to section 654.
Defendant admitted at trial that he was a member of the East Side Crips in March and April 2009. Defendant's sole contention on appeal is that there was insufficient evidence to support a finding that one of the primary activities of the East Side Crips was the commission of one or more crimes enumerated in section 186.22, subdivision (e)(1) through (25), (31) through (33). (See § 186.22, subd. (f).) We will therefore only briefly describe the underlying crimes, before focusing on the evidence concerning the primary activities of the East Side Crips gang in our discussion of the issue raised by defendant.
Robbery at the Barbershop — March 4, 2009
Two men, later identified as defendant and Carlos Ruiz, entered a barbershop with their faces covered. The taller of the two men,
Defendant asked whose Charger vehicle was outside. Mosley said the Charger was his and threw his keys on the floor. Defendant and Ruiz said that if anyone stuck their head out of the door, they would come back and kill everyone. They were then heard speeding off in a vehicle. The Charger was gone.
A witness saw two African American men run into an apartment complex. The witness later told law enforcement the men had run into 900 Feliz, Apartment A. A detective found items "believed" to have been "lost from this incident."
Defendant called his girlfriend and asked her to pick him up on "Felix"
Robbery/Murder at House Party — April 9, 2009
At around noon, Jonathan Lee picked up Landon Reynolds from a bus stop in Bakersfield. Reynolds had marijuana with him, and he and Lee smoked it together. Lee asked Reynolds who sold him marijuana. Reynolds said he gets his marijuana from Cordell Anderson. Lee wanted more marijuana but had no money. Reynolds suggested robbing Anderson of marijuana and electronic equipment. Lee dropped Reynolds off at his mother's house and agreed to return when it was dark so they could rob Anderson.
Lee did return after dark. Before Reynolds got to the car, Lee opened the trunk and defendant exited. Reynolds asked why defendant had been in the trunk and Lee responded, "[C]ause he's hot." Reynolds, Lee, and defendant got in the car and headed towards Anderson's house. Reynolds told Lee and defendant that Anderson was known to have guns in his home. Defendant responded that he was not worried about Anderson having guns. The plan was that Reynolds would go inside Anderson's home, see who was present in the home and whether Anderson had marijuana, and update Lee and defendant via text message. If Anderson did have marijuana, Lee and defendant would come to the door, ask Anderson for marijuana, and then take it from him and run.
Reynolds went to Anderson's door. It turned out that Anderson was hosting a small party at his home with eight or nine guests. One of the guests was Anderson's best friend, 17-year-old Silberio Rodriguez.
Someone answered the door and let Reynolds in. Reynolds bought a small amount of marijuana from Anderson and smoked it. Reynolds sent a text message to Lee informing him that there was marijuana at the home. Lee sent Reynolds a text message asking how many people were in the house. Reynolds sent Lee a text message informing him there was a sliding glass door from the outside to the kitchen/dining room area. Reynolds told Lee that they were "good to go." Reynolds then heard a knock at the door.
Anderson went to a front room in his house to see who was at the door. Anderson had never before seen the two people standing at the door. Anderson told Rodriguez not to open the door just as Rodriguez opened it. Anderson said, "[W]hat can do I for you?" One of the two men had tattoos on his face. The man with tattoos said that they had heard Anderson was having a "kickback." The man tried to convince Anderson that they knew each other through a mutual female friend. Anderson said he did not know the woman they were talking about. During the conversation, Anderson believed "something was wrong" based on the body language of the two men. Anderson said they could not come in. The man with tattoos pulled a gun and said, "[T]his is a jack move."
Reynolds heard the arguing and "a pop." Reynolds then saw Anderson run to his room and slam the door. Reynolds laid down on the floor because he was "playing along." Defendant ran towards the living room with a gun in his hand. Lee ran alongside defendant wearing gloves and a brass knuckle.
Defendant put Rodriguez into a headlock and pointed the gun at his head. Lee looked for Anderson, and asked aloud where he was. No one responded. Defendant told Lee to open the door, and Lee kicked the door down. Reynolds got off the floor and yelled, "[W]here's the weed[?]" Rodriguez did not respond. Someone in the kitchen was starting to get off the ground, so Lee yelled at him to "[g]et down." The person complied and Lee took the person's car keys. Lee and defendant searched the home for marijuana.
Defendant was still holding Rodriguez with the gun pointed to his head as they made their way towards the main hallway of the home. Lee accompanied defendant and Rodriguez.
Reynolds, meanwhile, went to Anderson's room to look for things to take. He found some marijuana under a mattress and stuffed it in his pants. He also found a couple of dollars and took them. While in Anderson's room, Reynolds heard a couple of gunshots coming from the front of the house. Reynolds then left to the backyard through the sliding glass door. He saw someone who had been at the party, so he pretended to be a victim.
Anderson returned to his home with a police escort and found a friend holding Rodriguez, who was unresponsive. Rodriguez died from a gunshot wound to the head.
Defendant denied robbing the barbershop.
Defendant testified that he did bring a gun to Anderson's home. After hearing Anderson say something about "you" and "police," defendant pulled out his gun and cocked it. Anderson hit defendant's arm, and he lost control of the gun and it "went off." Defendant ran back to Lee's car, and he never saw the gun again.
Defendant admitted that in April and March of 2009, he was a member of the East Side Crips.
Defendant contends that there was no substantial evidence that the East Side Crips met the "primary activities" requirement to be considered a criminal street gang under section 186.22. The Attorney General argues the gang expert's testimony constituted substantial evidence.
Gang Expert Testimony
Sean Underhill is a police officer with the City of Bakersfield's gang unit. At the time of trial, he had been an officer for almost 19 and one-half years. Officer Underhill had been involved in "[m]any hundreds" of gang investigations, and had made at least 500 gang-related arrests. Underhill personally dealt with East Side Crip gang members on a regular basis. Underhill testified, "Every single day that I work we come in contact with East Side Crip gang members." Often, the contact is informal, but there are also occasions where he has arrested East Side Crip gang members.
Officer Underhill had been qualified as a gang expert "[p]robably about half a dozen" times.
Officer Underhill testified that the crimes at issue in this case benefitted the gang because its violent nature generated notoriety and fear for the East Side Crips.
Officer Underhill testified to two predicate offenses for the East Side Crip gang. Meko Seward, a member of the Country Boy Crips, had been shot and killed by Anthony Taylor, a member of the East Side Crips. In a separate incident, East Side Crip gang member Jimmy Gray robbed a jewelry store at gunpoint.
The following exchange occurred during Officer Underhill's testimony:
Officer Underhill testified that primary activities of a gang are "the things that we tend to see over and over again." However, Underhill testified that he did not know the exact number of times the East Side Crips committed specific crimes such as robberies.
Defense counsel asked Officer Underhill if "hypothetically a robbery occurred one time in 2009, and it was committed by a member of the East Side Crips, in your training and experience your opinion is that would be — make robbery a primary activity of the East Side Crip[s]?" Underhill responded, "Absolutely. That's why we speak about predicate offenses[.]"
Under section 186.22, "`criminal street gang' means 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 of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), 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), italics added.) Occasional commission of enumerated crimes by the group's members is not sufficient. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)
The enumerated crimes that can qualify as primary activities include assault with a deadly weapon, witness intimidation, grand theft of a vehicle, and burglary, among other crimes. (§ 186.22, subds. (e)(1), (8), (10)-(11).)
"Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony...." (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)
Here, there was sufficient evidence that the commission of enumerated crimes was one of the primary activities of the East Side Crips. The prosecution's gang expert testified that the primary activities of the East Side Crips included murders, shootings, narcotics sales, burglaries, witness intimidation, various weapons violations, robbery and auto theft. When asked what criteria he uses to determine whether something is a "primary activity" of a group rather than an occasional occurrence, Officer Underhill gave an answer that ended with, "the things that we tend to see over and over again are the ones that we call the primary activities." Moreover, Underhill specifically testified that his opinion that robbery is a primary activity of the East Side Crips was based, in part, on the number of times he had seen that crime committed by the East Side Crips. This evidence was sufficient. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1068 (Nguyen).)
Defendant's attacks on this straightforward conclusion are unavailing. Defendant points to Officer Underhill's response to a hypothetical posed by defense counsel. As recounted above, defense counsel asked Underhill if "hypothetically a robbery occurred one time in 2009, and it was committed by a member of the East Side Crips, in your training and experience your opinion is that would be — make robbery a primary activity of the East Side Crip[s]?" Underhill responded, "Absolutely. That's why we speak about predicate offenses[.]" By responding affirmatively to defense counsel's question, Underhill's answer does possibly suggest an incorrect view of the law. "Isolated criminal conduct ... is not enough" to satisfy the primary activities requirement. (In re Alexander L. (2007) 149 Cal.App.4th 605, 611.) However, the remainder of Underhill's answer indicates he was saying the hypothetical commission of a single robbery could constitute a predicate offense rather than wholly sufficient evidence of the primary activities of the gang. But, even if Underhill gave an undisputedly inaccurate opinion of the law in response to a hypothetical question, it would not invalidate his specific factual testimony that members of the East Side Crips committed multiple robberies and other enumerated offenses.
In Nguyen, supra, 61 Cal.4th 1015, the defendant made a similar claim that there was insufficient evidence that the commission of enumerated crimes was one of the primary activities of the Nip Family gang. (Id. at pp. 1067-1068.) The Supreme Court's brief analysis quickly dispatched the claim:
Virtually the same analysis applies here. The prosecution's gang expert testified that the primary activities of the East Side Crips are "murders, the shootings, the sales of narcotics, burglaries, witness intimidation, various weapons violations ... auto theft," and robbery. As in Nguyen, "[n]early all of these are crimes enumerated in the statute. (§ 186.22, subd. (e).)" (Nguyen, supra, 61 Cal.4th at p. 1068.) "This evidence was sufficient." (Ibid.)
Defendant tries to distinguish Nguyen. He observes that the expert in Nguyen "testified that he had investigated gang crimes." But so did Officer Underhill, who testified he had been involved in "[m]any hundreds" of gang investigations, and had made at least 500 gang-related arrests.
Defendant continues that the Nguyen expert testified about a homicidal war between the Nip Family gang and the victim's gang and was able to describe the Nip Family gang members' method of hunting rival gang members. Therefore, he argues, the Nguyen expert had a substantial basis for his opinion about the Nip Family's primary activities. But Officer Underhill also had a substantial basis for his opinion that, for example, robbery was a primary activity of the East Side Crips:
Given Officer Underhill's earlier testimony that he investigated the East Side Crips, including reviewing police reports concerning gang activity and engaging in daily contact with East Side Crip gang members, his further testimony that he had seen a sufficient number of robberies by East Side Crip gang members to lead him to conclude it was a primary activity shows there was a substantial basis for his opinion (i.e., his personal observations).
The testimony of the prosecution's gang expert provided substantial evidence to support a finding that one of the primary activities of the East Side Crip gang was the commission of enumerated crimes.
The judgment is affirmed.
FRANSON, J. and SMITH, J., concurs.