People v. Cook CA2/2

Filed 4/30/14 P. v. Cook CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE, B248133

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA25327)
v.

ANDREW TYRONE COOK,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. John T.
Doyle, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and Yun K.
Lee, Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant Andrew Tyrone Cook (defendant) appeals from his gang
related robbery conviction. He contends that the trial court erred in precluding cross-
examination of the investigating officer/gang expert as to an unrelated shooting and
resulting civil action in which the officer was involved. Defendant also contends that
substantial evidence did not support the finding that the crime was gang related, and that
the imposition of a $280 restitution fine was an ex post facto violation. Defendant has
failed to preserve the ex post facto issue, and we decline to reach the merits. Finding no
merit to defendant’s remaining contentions, we affirm the judgment.
BACKGROUND
Procedural history
Defendant was charged with two counts of second degree robbery in violation of
Penal Code section 211.1 The information alleged that count 1 had been committed for
the benefit of, at the direction of, and in association with a criminal street gang, with the
specific intent to promote, further and assist in criminal conduct by gang members,
within the meaning of section 186.22, subdivision (b)(1)(C). As to count 2, the
information alleged that defendant personally used a firearm in the commission of the
offense, within the meaning of section 12022.53, subdivision (b). It was further alleged
pursuant to section 667, subdivision (a)(1), as well as for purposes of the “Three Strikes”
law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), that defendant had suffered a prior
serious felony conviction. The information also alleged three prior convictions for which
defendant had served prison terms within the meaning of section 667.5, subdivision (b).
A jury convicted defendant of count 1 as charged and found the gang allegation to
be true. After the jury deadlocked on count 2, the trial court declared a mistrial, and on
motion of the prosecutor, dismissed the count. In a bifurcated proceeding, defendant
waived his right to a trial on the prior convictions and admitted he suffered a prior
robbery conviction that qualified as a strike, as well as two other convictions with prison
terms. On April 9, 2013, after denying defendant’s motion for new trial, the trial court

1 All further statutory references are to the Penal Code, unless otherwise indicated.

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sentenced defendant to 23 years in prison. The court selected the middle term of three
years, doubled as a second strike, added five years pursuant to section 667, subdivision
(a), plus 10 years due to the gang finding, and two one-year enhancements due to prior
prison terms. Defendant was awarded 608 actual days of presentence custody credit, plus
91 days of conduct credit for a total of 699 days. The trial court ordered defendant to pay
a $280 restitution fine, as well as other mandatory fines and fees, and to provide a DNA
sample.
Defendant filed a timely notice of appeal from the judgment.
Prosecution evidence
Mesinas robbery (count 2)
On August 7, 2011, at approximately 6:00 a.m., as Noe Mesinas (Mesinas) was
walking home from the train station on Imperial Highway near Grape Street, he was
robbed at gunpoint of cash and other items by two African-American men. The men
were approximately 25 to 30 years old; one was a bit taller than five feet five inches tall,
and the other was taller than that. Although the taller man pulled Mesinas’s T-shirt over
his head so that it covered most of his face, Mesinas was able to get a look at him. A few
months later, Mesinas selected defendant’s photograph from a six-pack photographic
lineup, and identified him as the taller robber who had pulled his T-shirt and put a gun to
his back.
Villavicencio robbery (count 1)
Four days later, on August 11, 2011, Gabriela Villavicencio (Villavicencio) was
walking on Imperial Highway toward the same train station sometime between 6:30 and
6:45 a.m., when she saw two African-American men. The taller of the two men, who
was wearing a black bubble jacket, gave a signal to the shorter one, and then grabbed
Villavicencio’s purse. When Villavicencio screamed and hit the shorter man with her
plastic lunchbox, he took the lunchbox from her and caught up with the other man at the
corner. Villavicencio then saw both of them run onto Grape Street and disappear into an
alley.

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 Los Angeles Police (LAPD) Officer Jesse Pineda interviewed Villavicencio and
another witness at the crime scene. He then communicated the suspects’ descriptions to
Officer Jose Carias with the information that the suspects had fled into the nearby
Imperial Courts housing project (Imperial Courts project or the projects). Officer Carias
both reviewed time-stamped video recorded earlier by surveillance cameras in the
projects and in the area of Imperial Highway and Grape Street, and watched surveillance
images in real time. He observed two men walking westbound on 115th Street to Grape
Street toward Imperial Highway at 6:32 a.m., wearing clothes matching the descriptions
he was given. Officer Carias recognized one of the men as Derek Martin (Martin), whom
he knew from prior contacts. The same two men, wearing the same clothing, could be
seen at 6:45 a.m. running north on Grape Street then east on a walkway leading into the
projects.
Beginning about 8:30 or 9:00 a.m., Officer Carias watched the live feed from the
cameras in the projects. He could see the entire housing development and was able to
focus on Martin’s former apartment unit. There he saw a person with a build and
clothing similar to that of Martin’s companion seen earlier that morning. Officer Carias,
who controlled the movement of the cameras, tracked the man as he walked within the
projects. When the man picked up a black jacket from some bushes near the northeast
corner of Grape Street and 115th Street, Officer Carias told Officer Pineda to detain him.
Defendant was the man Officer Pineda detained. He was taken to the police
station where Villavicencio identified him in a field show-up as one of the two robbers.
Villavicencio recognized defendant’s face, the black jacket, and his hair style -- lots of
little pony tails. A few days later, Villavicencio was taken to another field show-up and
identified Martin as the other robber. Villavicencio then identified defendant in court as
one of the two men who robbed her, the one wearing the black jacket which was in
evidence. Villavicencio identified a photograph of Martin as the shorter man involved in
the robbery.
Officer Carias testified as the prosecution’s expert on the PJ Watts Crip gang
(PJ Watts) and gang culture in general. He testified that PJ Watts was an active criminal

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gang and its primary activities were robberies, burglaries, home invasions, narcotics
sales, shootings, and murder. The gang’s territory included the Imperial Courts project,
the area near Imperial Highway and Grape Street, and 115th Street. Officer Carias
presented evidence showing offenses by those he knew to be members of the PJ Watts
gang: Deandre Fountain who was convicted in 2009 of possession of a firearm by a
felon, and Robert M. Barnes, who was convicted of the same offense in 2009.
Officer Carias described the PJ Watts gang’s common signs and symbols,
including hand signs, tattoos, and clothing. Tattoos were typically P and J which stood
for the projects; PJWC for Projects Watts Crips, or street names or numbers within the
gang’s territory, such as 115 for 115th Street, and images of bricks, signifying the
projects, as it was built of bricks. Members also might have tattoos indicating a clique or
subset of the gang, or a squad. Officer Carias took photographs of defendant, showing a
tattoo of 115 and “Squad Alumni” over an image of bricks on his abdomen, and tattoos of
a P and a J on his left thigh. Martin’s tattoos included a P and J on either side of his face,
a P and J on his neck, and bricks on his forearm.
Officer Carias testified he was acquainted with Martin and had documented him
beginning in 2008. It was Officer Carias’s opinion that Martin was a PJ Watts gang
member whose gang moniker was “Roscoe.” This opinion was based on Martin’s
admissions to him, his contacts with Martin in and around the projects, and Martin’s
tattoos. It was also Officer Carias’s opinion that defendant was a member of the PJ Watts
gang and his moniker was “Half Dead” or “HD.” He based this opinion on evidence of
defendant’s commission of the robbery with Martin in PJ Watts territory, defendant’s
tattoos, and a conversation with defendant’s girlfriend the day before his testimony in
which she told Officer Carias that she had been in a relationship with defendant for nine
years and knew him to be a member of PJ Watts. Defendant’s girlfriend also identified
her tattoos to Officer Carias, including “Half Dead” behind her ears which she said was
for defendant.
Officer Carias was familiar with every gang in his division and explained that a
gang’s reputation for violent crimes committed in the community served to frighten

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people and thus to discourage them from cooperating with law enforcement. A gang
member gained the respect of his peers by “putting in work” for the gang, which meant
committing violent acts and crimes to enhance the gang’s reputation. Putting in work
could also mean assisting and supporting a fellow gang member while committing a
crime, or providing a witness to prove that the work was completed. Typically most such
crimes occur in the gang’s own territory, which among other reasons, served to increase
fear in the community and make witnesses more reluctant to come forward.
When given a hypothetical question mirroring the facts of the Villavicencio
robbery, Officer Carias gave his opinion that the crime was committed for the benefit of
and in association with a criminal street gang. His opinion that such a crime would
benefit the gang was based on the following facts: the crime was committed in broad
daylight in the hub of the gang’s territory by a documented gang member with gang
related tattoos and another person who, while not documented, had tattoos consistent with
membership in the gang. Such circumstances would cause fear and intimidation within
the community and thus allow the gang to continue to commit crimes and pursue its
criminal enterprise without police interference. Although the money or items stolen in a
robbery would not necessarily benefit the gang, the robbery itself would do so by
enhancing the gang’s violent reputation.
Defense evidence
LAPD Officer Juan Ponce testified that he and his partner interviewed Mesinas at
the crime scene, where Mesinas told him that both robbers on August 7, 2011, were five
feet nine inches tall and weighed 160 pounds.
Defense investigator Gary Cooper (Cooper) testified that he interviewed Mesinas,
who described one of the robbers as taller than six feet, 220 pounds, and wearing a black
hoodie with the hood up. Mesinas also said that when one of the robbers pulled up his
shirt he could only look downward and was therefore only 80 percent certain of his
identification of defendant’s photograph. Mesinas also told Cooper that he did not see
anyone he could identify as either robber when he went to court for pretrial proceedings.

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 In May 2012, after Martin pled guilty to the Villavicencio robbery, Cooper
interviewed him. Martin said that defendant was not involved in that robbery, that Martin
committed it with a man named “J Coll,” whom he described as a Black male in his 20’s,
five feet ten inches tall, weighing 160 pounds.
Martin testified on defendant’s behalf. He admitted being an active member of
PJ Watts which was headquartered in the Imperial Courts project. He had been a member
of the gang since 1996 or 1997 and had various tattoos indicating his membership in the
gang. He wore a P and J on his face so that people would know he was a member of the
PJ Watts. He also had a P and J on his neck and bricks on his arm to represent the
projects. Martin admitted that he remained a PJ Watts member while in prison and
“always.”
Martin claimed that defendant was not involved in the robbery, that he did not
know defendant at that time, and that he did not meet defendant until the first court date
in this case. Martin testified he knew every active member of his gang who frequented
the projects and claimed, “If you ain’t there every day and you ain’t active, I don’t know
you,” and “I know [defendant] ain’t from my hood. I ain’t never seen him before for
sure.” When the prosecutor showed Martin the photographs of defendant’s tattoos, he
claimed that a member of PJ Watts would not get “115” tattooed on him, explaining that
115 was not a clique of PJ Watts and that although the robbery was committed at 115th
and Grape Streets, 115th Street was not part of his hood.
Martin testified that on August 11, 2011, he left the projects around 6:45 a.m. to
go to the nearby train station, where “Red,” a member of a different gang, introduced him
to J Coll, short for “J Corleone,” which was a “hood name.” Red said that J Coll was a
young PJ Watts member who “claimed the hood,” and Martin replied that J Coll would
have to come to the hood to get officially “jumped in” to the gang. Martin also testified
that J Coll had already been jumped in, and that he had personally taken J Coll to his
hood for that purpose. Martin did not make clear when that happened, as he claimed they
first met when introduced by Red at the train station. He added that he never saw J Coll
again after the robbery. Martin claimed that Red was dead by the time of trial and

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acknowledged that he had never before spoken Red’s name in connection with his
version of the robbery.
Martin claimed he committed the robbery for his personal benefit, not the gang’s,
because he needed some money to get high. Martin knew that since J Coll was a new
member, he would have to prove himself by going on “missions.” Thus Martin instructed
J Coll to stand watch at the corner. The robbery happened very fast: Martin took off and
J Coll ran behind him, but when Martin looked back, J Coll was gone, and Martin never
saw him again. Martin described J Coll as about five feet seven to ten inches tall,
weighing 165 pounds, with a little “fro” hairstyle, and wore a black hoodie during the
robbery. When asked to identify defendant in court, Martin testified that he was not J
Coll. After the prosecutor showed Martin the surveillance video of him and the other
suspect, Martin acknowledged that J Corleone had the same height and build as
defendant.
Martin acknowledged he lied when he was first arrested by claiming that he had
done nothing. He told the police, “That’s on PJ’s.” At trial he explained, “I put that on
the hood. That’s how we talk.” After he was shown the surveillance video showing him
running through the alley he decided to take a plea bargain and he pled to the charge in
April 2012. Martin claimed that when he entered his plea, he told his attorney that
defendant had nothing to do with the robbery and that he said it in open court to the
deputy district attorney who took his plea.
Martin testified that in May 2012, after his plea, he told Cooper that defendant had
not been with him, and that he did not even know defendant then. Martin gave Cooper a
description of J Coll. In October 2012 Martin told Officer Carias that defendant was not
involved, rather it was J Coll. He gave a description of J Coll and said “he was hanging
at” the shopping center or the train station, but claimed that no one in the projects knew J
Coll except the four or five unnamed people who “courted him on.” Martin thought
Officer Carias doubted him, as there was no follow up. Martin was not shown
photographs in an effort to identify J Coll.

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 Martin was not forthcoming with Officer Carias because he did not like the
officer. Martin explained, “I didn’t want to see his face because he killed a homie . . .
and he be harassing us.” Martin denied that he spelled out “J. Cole” instead of “J Coll”
but after the prosecutor played a recording of the interview in which he spelled “J-C-O-L-
E,” Martin explained that he was high during the interview. Martin then denied being
high and claimed he spelled it that way because of Keisha Cole. Finally, Martin again
claimed that he was high during the interview.
Rebuttal
Deputy district attorney Tracey Stevens testified that she took Martin’s change of
plea on April 26, 2012, and that he never mentioned the name J Coll to her or said
anything to her regarding the involvement of a person named J Coll in the robbery.
Officer Carias testified that he unsuccessfully attempted to locate J Coll using the
spelling Martin gave him and variations of the name by searching department resources
and asking Detectives Moreno and Peters to search for a person with that name associated
with Imperial Courts or the PJ Watts gang. After Martin said J Coll had been courted or
jumped into the gang at the train station, Officer Carias searched the surveillance video
for some indication that a person was jumped in or courted, but he found nothing.
DISCUSSION
I. Limitation on cross-examination
Defendant contends that the trial court abused its discretion in limiting the cross-
examination of Officer Carias under the authority of Evidence Code section 352 and by
denying his motion for new trial based upon the limitation. Defendant also contends that
the trial court’s rulings resulted in a denial of his constitutional rights to due process,
confrontation, and to present a complete defense.
“The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352.) The trial court’s discretion under
Evidence Code section 352 will not be disturbed unless it was exercised “‘in an arbitrary,

9
capricious or patently absurd manner that resulted in a manifest miscarriage of justice.
[Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Similarly, The trial court “has a ‘wide latitude’ of discretion to restrict cross-examination
and may impose reasonable limits on the introduction of such evidence. [Citation.]”
(People v. Smith (2007) 40 Cal.4th 483, 513, quoting Delaware v. Van Arsdall (1986)
475 U.S. 673, 679.) The trial court also retains wide latitude within the confines of the
confrontation clause, and no constitutional violation will be found in the restriction of
cross-examination properly excluded under Evidence Code section 352. (People v. Ayala
(2000) 23 Cal.4th 225, 301 (Ayala).)
Prior to Officer Carias’s testimony, defense counsel informed the court that she
intended to cross-examine him about his 2010 shooting of a PJ Watts gang member. A
wrongful death action was brought against him and the LAPD and there was an LAPD
directive barring Officer Carias from entering the Imperial Courts project. Counsel
sought the evidence in order to show the officer’s bias against PJ Watts gang members in
general and to weaken his credibility as the investigator and as a gang expert.
The trial court heard the relevant testimony in an Evidence Code section 402
hearing outside the jury’s presence. Officer Carias testified that he and his partner had
been assigned exclusively to the PJ Watts gang for almost two years when, in October
2010, they were involved in a shooting in which a PJ Watts member was killed. The
shooting had nothing to do with defendant or Martin. LAPD Internal Affairs conducted
an investigation, as it routinely does when there is a shooting by an officer, found no
wrongdoing and closed its investigation. The officers were initially placed on
administrative duty and had no contact with the public during that time. The assignment
was not punitive, but according to policy after a shooting. The officers were back on
regular duty by July or August 2011 and still assigned to the gang unit. However, due to
some community concerns, the Chief of Police issued a memorandum in August or
September 2011 prohibiting Officer Carias and his partner from entering the Imperial
Courts project unless another officer called for help. Officer Carias was able to

10
investigate this case by viewing the surveillance video and directing other officers to
enter the projects when necessary.
The trial court considered the evidence and found that any probative value was
outweighed by the potential for confusing the jury and causing an undue consumption of
time. Thus, the trial court excluded the evidence, rejected defendant’s requests to
reconsider the ruling after Officer Carias testified and again prior to his rebuttal
testimony, and denied defendant’s motion for new trial on this basis.
Defendant does not dispute the trial court’s finding that the 2010 shooting did not
involve defendant, that there was no indication that Officer Carias knew of defendant
prior to investigating this case, or that he targeted defendant for any reason other than his
observations on the surveillance video. Instead, defendant contends that the officer’s
involvement in the shooting of a PJ Watts member and his status as a defendant in a
wrongful death action could have affected his judgment and created a bias toward all
members of the PJ Watts gang. Defendant argues that he was prevented from showing
that the officer was motivated by bias, consciously or unconsciously, to conduct
suggestive single person field show-ups, to exaggerate his efforts to find J Coll, and to
opine that the crime was gang related simply because defendant was found in the projects
and had gang tattoos. In addition, defendant suggests that the evidence was important to
show that Officer Carias was unable to effectively investigate crimes or criminals within
Imperial Courts due to his inability to physically enter the projects, placing both his PJ
Watts gang expertise and his investigation in this case in question.
We first observe that the evidence would most certainly have implied that the
shooting was not justified and that Officer Carias had wrongfully caused a death, thus
reflecting poorly on his character. A trial court may properly exercise its discretion to
preclude such collateral impeachment as inquiring into unrelated past conduct that does
not bear on the witness’s veracity or honesty. (Ayala, supra, 23 Cal.4th at p. 301.)
We also reject defendant’s contention that the cross-examination would not have
consumed an undue amount of time or caused jury confusion simply because defense
counsel did not intend to bring out the details of the shooting. The prosecution would

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have been required to rehabilitate Officer Carias by eliciting the details of the shooting,
the investigation, and the reasoning behind barring Officer Carias from physically
entering the projects. Defendant’s argument that the officer’s expertise was affected by
his inability to investigate the gang or suspects from inside the projects might have
required another gang expert to testify regarding effective investigative practices, and
possibly evidence of similar investigations. Further, it is conceivable that defendant’s
suggestion of unconscious bias and its effect on identifying suspects could require expert
testimony on that subject.
Moreover, the evidence was not highly probative. As the court observed, the
“pending civil litigation of a shooting of a gang member unrelated to these two people
. . . does not show a bias or a prejudice of this officer because virtually every . . . contact
[requiring an officer] to fight, chase, [and] get shot at . . . would provide a bias or a
prejudice. And we would not let all those in.” And as respondent aptly points out, the
broad discretion granted by Evidence Code section 352 “‘empowers courts to prevent
criminal trials from degenerating into nitpicking wars of attrition over collateral
credibility issues.’ [Citation.]” (Ayala, supra, 23 Cal.4th at p. 301.)
Defendant has not shown that the trial court acted in an arbitrary, capricious or
patently absurd manner; nor has defendant demonstrated a miscarriage of justice. A
miscarriage of justice occurs when it appears reasonably probable that defendant would
have achieved a more favorable result absent the alleged error. (See People v. Watson
(1956) 46 Cal.2d 818, 836.) The jury heard from Martin that Officer Carias had killed a
PJ Watts member, and the jury heard a great deal of conflicting testimony from Martin.
If defendant had been allowed to go into the collateral matter further the jury would also
have learned that the LAPD had cleared Officer Carias of wrongdoing, that he was no
longer on administrative duty, thereby leaving the jury with no indication that the
prohibition against entering the projects had any purpose other than protecting Officer
Carias. Under such circumstances we cannot agree that there was a reasonable
probability that the jury’s assessment of either witness would have been different.

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 There is no merit to defendant’s argument that without the excluded evidence
Officer Carias was unimpeachable as an expert witness. There is no indication that the
trial court would not permit a challenge to Officer Carias’s testimony regarding his gang
expertise, experience, and education, if defendant had attempted to do so. Nor is there
merit in defendant’s assertion that Martin’s credibility was left in doubt because Officer
Carias was barred from investigating or searching for J Coll. Martin damaged his own
credibility with conflicting testimony. Moreover, Officer Carias did in fact search for
J Coll by researching LAPD resources, reviewing surveillance video, and having
Detectives Moreno and Peters conduct the physical search in the projects.
We conclude that the trial court acted properly within its discretion in excluding
cross-examination designated to elicit the unrelated shooting and the wrongful death civil
action. As defendant has failed to demonstrate that an inquiry into such collateral matters
“‘would have produced “a significantly different impression of [the] credibility”’” of
Officer Carias or Martin, the trial court’s proper exercise of discretion under Evidence
Code section 352 was not prejudicial and did not result in a violation of the Sixth
Amendment. (People v. Smith, supra, 40 Cal.4th at p. 513, quoting Delaware v. Van
Arsdall, supra, 475 U.S. at p. 680; see also Ayala, supra, 23 Cal.4th at p. 301.) We thus
reject defendant’s constitutional claims, as well.
II. Substantial evidence of gang finding
Defendant contends that the jury’s finding that the robbery was gang related was
not supported by substantial evidence.
Section 186.22, subdivision (b)(1), authorizes a sentencing enhancement for
felonies “committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members . . . .” The enhancement “applies when a defendant has
personally committed a gang-related felony with the specific intent to aid members of
that gang.” (People v. Albillar (2010) 51 Cal.4th 47, 68 (Albillar).) “In sum, if
substantial evidence establishes that the defendant intended to and did commit the
charged felony with known members of a gang, the jury may fairly infer that the

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defendant had the specific intent to promote, further, or assist criminal conduct by those
gang members.” (Id. at p. 68.)
A gang enhancement finding is reviewed under the same substantial evidence
standard as any other conviction. (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.)
Thus, “we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence -- that is, evidence that is reasonable,
credible, and of solid value -- from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (Albillar, supra,
51 Cal.4th at pp. 59-60.)
Defendant contends that there was insufficient evidence of association with a gang
or benefit to a gang to support the first element of the enhancement: the felony was
committed “for the benefit of, at the direction of, or in association with any criminal
street gang.” Defendant does not challenge the sufficiency of the evidence to establish
that Martin was a member of the PJ Watts gang, and although he points out conflicting
evidence, he accepts the jury’s finding that he was also a member of the gang. Further,
defendant does not challenge the sufficiency of the evidence to support the jury’s finding
that defendant committed the Villavicencio robbery with Martin.
Rather, defendant contends that “in association with any criminal street gang”
must be construed as committing the felony in association with the gang as an entity, not
just another gang member. On the contrary, the commission of a felony with a known
gang member can give rise to a reasonable inference that the crime was committed in
association with a gang, unless there is evidence that the defendant was engaged in
“‘frolic and detour unrelated to the gang. [Citation.]’” (Albillar, supra, 51 Cal.4th at pp.
61-62, quoting People v. Morales (2003) 112 Cal.App.4th 1176, 1198; see also Albillar at

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pp. 59-60 [rape by gang members acting in concert], 68.) Ample evidence supported the
reasonable inference of the association element here. Defendant’s accomplice was a
documented and admitted member of the PJ Watts gang who had visible gang related
tattoos which defendant undoubtedly recognized. Defendant also had PJ Watts gang
related tattoos. Martin and defendant committed the crime in gang territory and Martin
testified that his accomplice needed to go on a mission to prove himself, negating any
suggestion of a frolic or detour.
Defendant also contends that the evidence of benefit to the gang is lacking because
it came from expert testimony that was not supported by “specific evidence” that the
Villavicencio robbery was committed to benefit the PJ Watts gang. Defendant relies
primarily on the dissenting opinion of Justice Werdegar in Albillar, supra, 51 Cal.4th at
pages 72-73, to support this contention. The majority held, however, that expert opinion
can be sufficient to raise the inference that the conduct was committed for the benefit of
the gang. (Id. at p. 63.) We are bound by the majority opinion of the Supreme Court.
(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, the
majority has since made it clear that “‘[e]xpert opinion that particular criminal conduct
benefited a gang’ is not only permissible but can be sufficient to support the Penal Code
section 186.22, subdivision (b)(1), gang enhancement. [Citation.]” (People v. Vang
(2011) 52 Cal.4th 1038, 1048.)2
Officer Carias’s testimony and opinion sufficiently raised the reasonable inference
that the crime was committed for the benefit of a criminal street gang. The officer
testified that the PJ Watts gang was a violent criminal street gang whose primary

2 We thus find the pre-Albillar and pre-Vang cases cited by defendant as illustrating
the insufficiency of expert testimony to support gang allegations in the absence of direct
testimony of the motive in the particular case, such as a public declaration of the gang’s
involvement or the exhibition of gang signs, colors, or tattoos, unhelpful. (See, e.g.,
People v. Ramon (2009) 175 Cal.App.4th 843, 851; In re Frank S. (2006) 141
Cal.App.4th 1192, 1199.) Nor do we find helpful defendant’s comparison to In re Daniel
C. (2011) 195 Cal.App.4th 1350, as the facts of that case were expressly distinguished
from those in Albillar and are not analogous here. (See Daniel C., at p. 1361 [fellow
gang members left store prior to shoplifting; no evidence of concerted action].)

15
activities were robberies, burglaries, home invasions, narcotics sales, shootings, and
murder; and his testimony was supported by the certified dockets showing the firearm
convictions of members of the gang. Officer Carias explained that gang members put in
work for their gang by committing violent crimes, usually in their gang’s territory and
often in broad daylight. This activity benefitted the gang by building its violent
reputation in the community through fear and intimidation, which discouraged citizens
from coming forward, allowing the gang to continue to pursue its criminal enterprise
without police interference.
Moreover, and contrary to defendant’s assertion, there was additional evidence of
gang benefit “specific” to the Villavicencio robbery. Although Martin claimed he
committed the robbery for his personal benefit rather than that of the gang, he initially
told police, “That’s on PJ’s.” Also he testified that his accomplice was a new member
and would thus have to prove himself by going on missions. It follows that defendant
knowingly assisted his fellow gang member to benefit the gang by putting in work that
would build the gang’s violent reputation.
We conclude that Officer Carias’s expert opinion and Martin’s testimony
sufficiently established that defendant and Martin came together as gang members to rob
Villavicencio, and “thus, that they committed these crimes in association with the gang.
[Citations.]” (Albillar, supra, 51 Cal.4th at p. 62.) We also conclude such evidence,
along with Officer Caria’s testimony regarding gang culture and his opinion that such a
crime would benefit the gang by enhancing its reputation for violence, was sufficient to
raise a reasonable inference that the robbery was committed to benefit the gang. From
the same evidence, the jury could “fairly infer that the defendant had the specific intent to
promote, further, or assist criminal conduct by those gang members,” thus satisfying both
elements of the enhancement. (Id. at p. 68.)
III. Ex post facto
Defendant contends that the imposition of a $280 restitution fine was unauthorized
and violated the ex post facto clauses of the state and federal constitutions. He contends
that the record shows that the trial court intended to impose the minimum fine, which was

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$200 at the time of his offense, with a maximum of $10,000. (See former § 1202.4, subd.
(b)(1); Stats. 2011, ch. 45, § 1, eff. July 1, 2011.)
Ex post facto laws are prohibited by both the California and United States
Constitutions. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) A prohibited ex post
facto law is a statute that punishes as a crime an act which was not a crime when
committed, or that inflicts greater punishment than permitted by the law applicable when
the crime was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42-43; People v.
Acosta (2009) 176 Cal.App.4th 472, 475.) “[T]he imposition of restitution fines
constitutes punishment, and therefore is subject to the proscriptions of the ex post facto
clause and other constitutional provisions. [Citations.]” (People v. Souza (2012) 54
Cal.4th 90, 143.)
Defendant contends that the trial court’s intent to impose the minimum fine
authorized by law can be found in the court’s oral imposition of the fine, as follows:
“You are to pay a $240 -- $280 restitution fine on count 1, a $280 parole revocation fine
which is to be stayed unless you violate your parole . . . .” $240 was the minimum fine
beginning January 1, 2012, before the minimum was raised to $280 beginning January 1,
2013. (Stats. 2011, ch. 358, § 1, eff. Jan. 1, 2012.) Defendant infers that from the
correction from an amount equaling the 2012 minimum to an amount equaling the 2013
minimum that the court intended to impose the minimum, but erred as to which statute
was in effect.
Respondent contends that defendant failed to preserve this contention with the
appropriate objection in the trial court. We agree. Generally, in the interests of fairness
and judicial economy, only “claims properly raised and preserved by the parties are
reviewable on appeal. [Citations.]” (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).)
“‘It is both unfair and inefficient to permit a claim of error on appeal that, if timely
brought to the attention of the trial court, could have been easily corrected or avoided.’
[Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 882.) The forfeiture rule reaches
claims that a ruling violated constitutional rights, unless the claim of error was of the kind
that required no action by the defendant to preserve it, or the defendant contends that

17
errors that were otherwise properly preserved for review had the additional legal
consequence of violating the Constitution. (People v. Boyer (2006) 38 Cal.4th 412, 441,
fn. 17.) Only unauthorized sentences fall into the first category, requiring no action to
preserve the issue; discretionary sentencing choices require an objection. (People v.
Dotson (1997) 16 Cal.4th 547, 554, fn. 6; Scott, supra, 9 Cal.4th at p. 354.)
In general, a fine within the limits of the court’s discretion under the prior statute
is not unauthorized, even if it is erroneous. (People v. Walz (2008) 160 Cal.App.4th
1364, 1369.) Restitution fines are set at the discretion of the court, which may impose
any amount between the minimum and maximum that is “commensurate with the
seriousness of the offense.” (§ 1202.4, subd. (b)(1).) Thus, as all the amendments to the
statute raising the minimum fine maintained the maximum at $10,000, it was within the
court’s discretion to impose a $280 fine, and defendant’s failure to object resulted in the
forfeiture of the constitutional issue. (See People v. Boyer, supra, 38 Cal.4th at p. 441,
fn. 17.)
Defendant requests that we exercise our discretion to reach the forfeited issue by
either modifying the sentence or remanding for the trial court to clarify its imposition of
the fine. We decline to do so. First, as respondent observes, the court may have deemed
the new minimum to be the appropriate amount to impose in this case, and in general, we
must presume that the trial court was aware of and followed the applicable law. (People
v. Stowell (2003) 31 Cal.4th 1107, 1114; Evid. Code, § 664.) In addition, the primary
purpose of the ex post facto clause is “to prevent unforeseeable punishment.” (People v.
Snook (1997) 16 Cal.4th 1210, 1221.) As the foreseeable range of punishment was
between $200 and $10,000 at the time the crime was committed, and defendant’s fine fell
within that foreseeable range, the primary purpose of the ex post facto clause was served.
Finally, an important purpose of the forfeiture rule is to promote judicial economy by
encouraging parties to bring easily corrected errors to the trial court in the first instance.
(People v. Smith (2001) 24 Cal.4th 849, 852.) That purpose would not be served by a
remand for a new sentencing hearing which could very well result in the same fine.

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 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.
CHAVEZ

We concur:

__________________________, Acting P. J.
ASHMANN-GERST

__________________________, J.*
FERNS

________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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