People v. Harper CA4/2

Filed 1/16/15 P. v. Harper CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

THE PEOPLE,

Plaintiff and Respondent, E057649

v. (Super.Ct.No. RIF10006084)

WALTER LEE HARPER, JR., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Richard T. Fields, Judge.

Affirmed with directions.

Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

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 A jury convicted defendant, Walter Harper, of attempted willful, deliberate and

premeditated murder (Pen. Code, §§ 664/187),1 during which he discharged a firearm,

causing great bodily injury (§ 12022.53, subd. (d)), possession of a shotgun by an ex-

felon (§ 12021, subd. (a)(1)), possession of a rifle by an ex-felon (§ 12021, subd. (a)(1)),

possession of a destructive device (§ 12303), possession of ammunition by an ex-felon

(§ 12316, subd. (b)(1)), and active participation in a criminal street gang (§ 186.22, subd.

(a)). As to the attempted murder and the firearms possessions, the jury made true

findings that these crimes were committed for the benefit of a criminal street gang

(§ 186.22, subd. (b)). In bifurcated proceedings, defendant admitted suffering four prior

convictions for which he served prison terms (§ 667.5, subd. (b)), one serious felony

conviction (§ 667, subd. (a)) and two strike priors (§ 667, subds. (c) & (e)(2)(a)). He was

sentenced to prison for 25 years to life, plus three 15 years to life terms, plus 13 years,

four months. He appeals, contending that evidence was improperly admitted and

insufficient evidence supports his convictions. We reject his contentions and affirm,

while directing the trial court to correct errors in its minutes and the abstracts of

judgment.

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

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 FACTS2

1. The Attempted Murder, Active Gang Participation and Gang Enhancements as

to the Attempted Murder and Firearms Possessions

A Riverside Police Department officer, who had spent almost all of his 13 years

on the force in the Casa Blanca neighborhood of Riverside, testified that in February

2010, Raymond Howard, a member of 2800 Blocc Crips (2800), had been murdered by

an Hispanic man who was powerful in either the Evans Street gang or the Fern Street

gang on Evans Street turf. The officer had heard on the street that Howard’s killer had

been collecting taxes, presumably, for the Mexican Mafia, and Howard was killed

because he had refused to pay them. The killer disappeared after the murder. Before this

murder, ninety-nine percent of the crime in Casa Blanca had been a result of fighting

between members of a clique of Fern Street and members of Evans Street. While there

had been minor flare ups between 2800 and Fern Street or Evans Street, there had been

nothing major. However, after Howard’s murder, 2800 members were, for the first time,

seen in enemy territory, including Evans Street turf, which suggested to the officer that

2800 members were out looking for someone and there was going to be retaliation.

Based on the officer’s training and experience, he opined that if a 2800 member had been

killed by either a member of Evans Street or Fern Street, he would expect a retaliation,

which would target the killer, but if the killer could not be located, another member of the

2 There were several instances during this trial where the trial court and the
parties failed to put on the record the exhibit number for a recording which was being
played for the jury. Greater care should be taken to insure that there are no such
ambiguities in the record.

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gang would be targeted. He testified that all members of Evans Street lived in Casa

Blanca and were highly visible there, while members of the clique of Fern Street were

not. The officer testified that the victim of the instant attempted murder was a member of

Evans Street. He said that defendant was considered to be one of the leaders or “shot

callers” of 2800. By October 29, 2010, he had heard from people in the community the

identity of the person who had shot the victim.

The victim testified to the following: He was a years-long member of the Evans

Street clique of the Casa Blanca gang.3 In the Casa Blanca neighborhood of Riverside,

there are three gangs—Evans Street, Fern Street and 2800. Evans Street’s biggest rival

was Fern Street4—if Fern Street members came into Evans Street turf, something bad,

like an assault, would happen. Although 2800 members were not rivals with Evans

Street, they did not hang out in Evans Street turf. Admitted not for its truth, but to

explain what the victim did after receiving the information, someone in Evans Street told

the victim that Howard, a 2800,5 had been killed in Evans Street turf, which created a

problem between Evans Street and 2800.6 Months before he was shot, the victim had

3 The prosecution’s gang expert corroborated this.

4 The prosecution’s gang expert corroborated this.

5The prosecution’s gang expert testified that Howard was at least an associate of
2800, and was, perhaps, a soldier of the gang.

6The prosecution’s gang expert testified that one of 2800’s rivals was Casa
Blanca Rifa, which was composed of Evens Street and Fern Street. He also testified that
[footnote continued on next page]

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been told by fellow gang members to watch out for defendant, who was associated with

2800, because defendant was running around, looking for people and doing things in the

neighborhood that put Evans Street on alert.

On June 25, 2010, at 10:30 p.m., the unarmed victim went to a park in Evans

Street turf to look for his younger sister. He noticed an old small white truck with a blue

stripe on the side, similar to a truck that was parked next to defendant’s parents’ house

four days7 later, pass slowly in front of him from a distance of 8-10 feet. The victim saw

two people inside the truck, one of whom he thought was defendant, whom he had seen

about two times before. The two gave the victim mad looks and the truck sped up, then

made a u-turn and approached the victim slowly from behind. The truck stopped 8-10

feet in front of the victim and the victim was positive8 that defendant was in the driver’s

seat, while another person was in the passenger seat. Sixteen to eighteen inches of a

[footnote continued from previous page]
before Howard’s murder, there was a relative truce between 2800 and Evans Street and
Fern Street.

7Defendant’s friend testified that he and defendant lived at defendant’s parents’
home in June 2010 and the friend owned a white Toyota truck with a brown stripe, which
was parked in the driveway of an abandoned house next door to defendant’s parents’
home on June 29, 2010. The friend testified that he told the police on December 17,
2010, that he “drives” the truck, but he leaves the keys anywhere in defendant’s parents’
house. He later testified that a particular member of the household would usually pick
the keys up and lock them in his bedroom. He also testified that the truck had been
inoperable all of 2010 and he had it towed to the Hills Street residence (see facts
concerning possession convictions) because it was going to be ticketed at the house next
door to defendant’s parents’ house.

8Besides twice testifying that he was positive, the victim added that out of a
range of one through ten, his identification of defendant was a ten.

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single barrel shotgun came out of the driver’s window, pointed at the victim, and one shot

was fired, hitting the victim’s right arm with bird shot. The truck sped off. The victim

refused to co-operate with the police at the hospital after the shooting, did not tell them

who had shot him and refused to look at pictures shown him of possible shooters,

although he told his family and friends who had done it and people in the community

were aware of the shooter’s identity. On October 29, 2010, the victim, who was on

probation, was caught with a gun, which he had been carrying for protection, by the

afore-mentioned Riverside Police officer and he was arrested. By then, the victim was

out of the Evans Street gang.

A recording of the post-arrest interview of the victim by two detectives was played

for the jury. In it, one of the detectives said they would later discuss the victim receiving

their help for possessing the gun depending on what information the victim had. The

other detective immediately asked the victim who had shot him in June 2010. The victim

said if the detectives helped him out, he would help them out. The victim told the

detectives that in June 2010, while he was looking for his younger sister, a white and blue

1990’s small truck with a long bed had passed him with two African-American men

inside, who looked at the victim “crazy.” The victim was somewhat reassured by what

he had been told, i.e., that members of Evans Street had talked to members of 2800, who

said that their fellow gang member had been killed by Fern Street, not by Evans Street.

However, the victim knew that 2800 would “turn it into a racial thing”9 and they would

9 Fern and Evans were Hispanic gangs and 2800 was an African-American gang.

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have a hard time finding a member of Fern Street to retaliate against, so they would come

after someone in Evans Street, who was much easier to find. The victim reported that the

truck did a u-turn and returned quickly to where the victim was, then slowed down and a

sawed-off shotgun came out of the driver’s rolled down window. The shooter, who was

also the driver, was a 2800 member, was someone the victim recognized as a person he

had seen before and was someone who “everyone [said] . . . if anyone’s go[ing to] . . . do

anything, . . . it’d be him.” After one of the detectives assured the victim that they would

not “tell the streets” that the victim had talked and that the victim could face 15 years on

the gun possession, and the other detective said that the victim would not be released

from custody unless he told them something serious, like who murdered someone, and

depending on what the victim told them, they would talk to the prosecutor about how

helpful the victim was,10 the victim identified his shooter as “Wally.”11 The victim went

on to describe his shooter as being a 5-foot, 11-inch African-American with a ponytail in

his mid-to-late-thirties, whom the victim had seen previously on the streets.12 The victim

described the passenger and said he was a 2800, whom the victim had also seen before.

The victim said he had been hit with birdshot. The victim told the detectives about two

other incidents in which he was involved. One of the detectives told the victim that the

10 This detective testified that neither he nor the other detective talked to the
prosecutor about the victim’s case.

11 Defendant’s given name is Walter.

12During argument to the jury, the prosecutor represented, without objection by
defense counsel, that this description matched defendant.

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prosecutor would give the victim the best deal possible, but not without help for more

than one case—and the bigger the case, the more help the victim would get. The victim

was told that he would get time for the gun possession depending on what help he gave,

but it was reiterated that the victim could not go home that night. The victim said that he,

and other Evans Street members did not like the man who was suspected of killing

Howard and he implied that this man was from Fern Street. The victim was shown a

photo lineup which contained a picture of defendant, but he said he didn’t recognize

anyone in it, then he eliminated the pictures of two of the individuals13 in the lineup, and

said that the shooter was not present in it.

The victim testified at trial that he did not pick defendant’s picture out of the photo

lineup even though he knew defendant was the shooter. He denied telling the detectives

what he told them just to tell them what they wanted to hear. One of the detectives

testified that when the victim saw defendant’s picture in the photo lineup, all the color

went out of the victim’s face, he breathed heavily and his eyes fixated on the picture.

The detective feared that the victim was going to vomit.

The victim testified that after he failed to pick out defendant’s picture in the photo

lineup, he was taken to a holding cell and he knew he was under arrest. Just before he

was transported to county jail, he asked to speak to the police officer who had arrested

him that night for possessing the gun. He told this officer and another that he saw who

13 These were not pictures of the defendant.

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had shot him14 and that person’s name was Walt.15 He said he had not picked

defendant’s picture out previously because he was scared, but he was willing to identify

the shooter now to stop the shooter from hurting anyone else. After saying he wanted to

help the police out so they could help him out, the victim told the latter officer and a

detective that defendant had shot him and he circled defendant’s picture in the photo

lineup. The victim testified that no one told him to pick defendant’s picture and he had

no personal beef with defendant. The gun possession case, which was the victim’s first

as an adult, resulted in the victim pleading guilty to a strike, admitting a gang

enhancement and receiving five years probation, with local time.16 The victim denied

receiving any deal on the possession case for identifying defendant17 as his shooter and

he had already pled guilty by the time he testified at the preliminary hearing in this case,

during which he also identified defendant as the shooter. He denied receiving anything

for his trial testimony.18

14The former officer testified that the victim told him that the victim saw the
person who shot him in the photo lineup.

15 See footnote 11, ante, page 7.

16 At the time, a juvenile gun possession case and a juvenile case involving the
victim throwing a laptop at a store clerk were pending against the victim. The case agent
testified that it was not unusual for a first time adult gun-possessor to receive probation.

17The case agent, who was the detective who had questioned the victim on
October 29, 2010, confirmed this.

18 See footnote 10, ante, page 7.

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 A recording of the resumed interview between the detective, the latter officer and

the victim, during which the victim picked defendant’s picture out of the photo lineup,19

was played for the jury. The victim explained that he had not earlier picked out

defendant’s picture because he was afraid defendant would try again to kill him.

The victim testified that in August 2010, he and other Evans Street members had

been shot at during a confrontation with Fern Street members and members of a Fern

Streets clique.20

The prosecution’s gang expert testified that the man suspected of being Howard’s

killer was in prison, but had never been arrested for the murder.21

Other evidence concerning these crimes and enhancements will be discussed

below.

2. The Firearms/Ammunition/Destructive Device Possessions

A Riverside Police Department officer testified that on December 17, 2010, he

surveilled a residence on Hill Street in Mira Loma and saw defendant come out of it and

re-enter it, then saw defendant’s girlfriend enter it and leave it with defendant. The same

day, defendant’s friend’s truck, which the victim had testified was similar to the truck

that had been driven by defendant on June 25, 2010, was parked 50 feet outside the Hill

19 The victim said he was 100 percent sure the picture was that of the shooter.

20The police officer who arrested the victim on October 29, 2010, testified that
the victim was involved in a shooting at a drive-in during which someone from Evans
Street got shot by someone from Fern Street.

21 The Riverside police officer corroborated this.

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Street residence. Despite initially responding “Yes” to the question, “On December 17

police served a search warrant on the Hill Street address where [defendant] and

[defendant’s girlfriend] . . . live[d]”, the friend later testified that defendant was still

living at his parents’ house in December, 2010.22 However, the friend did not contradict

the case agent when the latter said on December 17, 2010, that defendant had been living

at the Hill Street residence with defendant’s girlfriend “for the last months” and he knew

that defendant had been staying at that residence, he did not know for how long, but it

could have been for five months “give or take.”23 Still, on the witness stand, the friend

insisted that he thought the case agent had been asking about the friend’s brother, who

was a truck driver who stayed at the Hill Street residence between runs.

A neighbor of the Hill Street residence testified that defendant’s girlfriend lived

there and the neighbor had seen defendant there occasionally. The neighbor had told the

police on December 17, 2010, that defendant lived there. A detective testified that this

22 However, the friend conceded that every time the police went to defendant’s
parents’ house after the June 2010 shooting of the victim, which was often, defendant
was not there. This included a visit there on June 29, 2010 at 7:00 a.m. The case agent
testified that defendant’s parents’ house was visited by police once a week, on different
days of the week, immediately after the June 2010 shooting and the house was placed
under surveillance.

23 The recording is unintelligible at times, but the case agent testified that his
recollection of the conversation with the friend was that the latter said that defendant had
been at the Hill Street residence for two-to-five months. When defense counsel cross-
examined the friend, she said that the friend told the case agent that defendant “was
staying [at the Hill Street residence] for a couple of months, or it could have been five
months[.]”

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neighbor described someone who fit defendant’s description, and having defendant’s first

name, as living at the Hill Street residence for six months.

At the residence, an unframed photograph of defendant holding a baby was found

in a bedroom closet. The living room of the residence contained Pittsburg Steelers

merchandise and there was a Steelers jacket in the kitchen. Defendant had a Steelers logo

tattooed on his back. Presents under the Christmas tree were marked for or from “Walt”

or “Walt and [defendant’s girlfriend’s first name].”24 There was a live shotgun round in

a kitchen drawer, and in the hall closet, a loaded 12-gauge pump action shotgun with

pistol grip, ammunition in a white canvas tote bag, including that which could shoot bird

shot, in a grocery bag, in a small black duffle bag and loose, and in a bedroom that also

contained items of dominion and control by defendant’s girlfriend, a Marlin .22 caliber

rifle in the closet and a cell phone containing pictures of defendant sitting in the living

room of the same house and a rifle on the floor of the kitchen. A destructive device was

found in the same bedroom closet. Defendant’s friend’s brother’s possessions were in

another bedroom.

Defendant’s girlfriend testified that the Steelers football team was defendant’s

favorite team, but the Steelers merchandise in her home belonged to her son, who visited

her there three-to-four times per week. She said she and defendant began dating in May

2010, and before she moved to the Hill Street residence, they often stayed in motels,

because neither had a place of their own in which to stay. She moved into the Hill Street

24 See footnote 11, ante, page 7.

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residence in July or August 2010 and lived there, alone, although defendant visited her

there at least two times a week during the day. She denied telling the police that

defendant had lived with her at the Hill Street residence since Halloween, 2010, and that

he stayed there at least five days per week. She said she had one gun in the closet of her

bedroom and one in the hall closet, although she admitted telling the police on December

17, 2010, that there were no guns in the house. She did not know what was in the black

bag that contained all the ammunition she knew to be in her house and the two guns, but

she said she got the bag and its contents from her cousin, who later killed himself.25 She

denied knowing how to use guns or ammunition. She did not recall there being pictures

of a gun on the cell phone that was found in her bedroom and she did not recognize

several of the other pictures that were on that phone. She had no idea how a shotgun

shell got into her kitchen drawer. She did not seem to know about the canvas bag in

which ammunition was found.

During a December 17, 2010 police interview with defendant’s girlfriend, a

recording of which was played for the jury, the girlfriend admitted that all the Steelers

merchandise in the Hill Street residence was defendant’s, which she had purchased for

him. She also admitted that defendant began living at the residence in October 2010, was

there five days a week, including nights, and stayed with her most of the time. She

denied knowing about the shotgun and ammunition that was in the hall closet, the rifle in

25 She admitted that she had failed to tell both the police and the defense
investigator the origin of these guns, but she claimed she did this to protect her cousin’s
reputation.

13
the bedroom closet or the pictures of the rifle on the cell phone. When asked if she saw

defendant put the shotgun and ammunition in the hall closet, she stated that she was at

work all the time. She said she thought the destructive device in the bedroom closet was

a candle defendant had made for her, which had been there for two weeks. She stated she

had not used the cell phone in three months and did not know what went on when she

was at work. She said that based on the tattoos that adorned defendant’s body, she

concluded that he was a gangster, “from C[asa] B[lanca].” She stated that when the

police were following her and defendant as they drove away from the Hill Street

residence on December 17, 2010, defendant acknowledged that the police were there for

him and he pulled over without the police having to use their sirens or lights.

Defendant could not be excluded as the contributor of the DNA on the Marlin

rifle26 or the shotgun found at the Hill Street residence.

ISSUES AND DISCUSSION

1. Admission of Gang Evidence

“A verdict or finding shall not be set aside, nor shall the judgment or decision

based thereon be reversed, by reason of the erroneous admission of evidence unless:

[¶] (a) There appears of record an objection to or a motion to exclude or to strike the

evidence that was timely made and so stated as to make clear the specific grounds of the

objection or motion; and [¶] (b) The court which passes upon the effect of the error or

errors is of the opinion that the admitted evidence should have been excluded on the

26 One in 330 African-American males had the same DNA profile.

14
ground stated and that the error or errors complained of resulted in a miscarriage of

justice.”

California Rules of Court, Rule 8.204(a) states, “(1) Each brief must: [¶] . . . [¶]

(C) Support any reference to a matter in the record by a citation to the volume and page

number of the record where the matter appears.”

We quote the above provisions because not once in the 22 pages27 appellate

counsel devotes to the admission of gang evidence in his opening brief does he make an

express reference to any instance of defense counsel at trial objecting to any of that

evidence, including the nature of the objection and the ruling thereon by the trial court.

The closest appellate counsel for defendant comes is his assertion, without any citation

whatsoever to the record, that “the [prosecution’s] request for admission [of the gang

evidence] should have been more carefully scrutinized.”28 However, counsel does not

even go on to assert that any of the evidence he now contests was part of the

prosecution’s request for admission of evidence or that the trial court had an opportunity

to determine whether any of that evidence that is now contested should have been

27 This constitutes the bulk of the substantive portion of defendant’s opening
brief.

28As part of our review, we read the Points and Authorities in Support of [the]
Motion to Prohibit Opinion Testimony of Gang Expert[s] authored by Deputy Public
Defender Judith Gweon, which reads like it was either authored by someone who is not in
full command of the English language, or dictated, then typed up by someone who is not
in full command of the English language, and not proof-read by someone who is. Trial
courts are busy enough without having to weigh through marginally readable motions.
Although to a much lesser degree, Deputy District Attorney Daima Calhoun’s Trial Brief
could have profited from a good proof-reading.

15
admitted. Appellate counsel for defendant attempts to invoke “bedrock principles” in his

opening brief, but the above-cited provisions are just that.

We, therefore, begin with a summary of what evidence was actually contested

below, in what way and how the trial court ruled on it.

In his motion below to exclude the testimony of the prosecution’s gang expert,29

defendant asserted that the former should not be allowed to testify absent evidence

independent of his testimony to establish that the attempted murder was gang related.30

The trial court rejected this, finding that the prosecution’s gang expert could establish the

foundation that it was gang related and the magistrate, at the conclusion of the

preliminary hearing, bound defendant over on the gang enhancement allegation and the

substantive gang offense, thereby finding that a preliminary showing had been made that

the attempted murder was gang-related. During the discussion of the admissibility of the

expert’s testimony,31 the trial court cited a case holding that a gang expert may rely and

testify to that reliance on “reports written where the defendant was a suspect; times the

[expert] contacted the defendant [while he was] in the presence of other gang

members; . . . when he [was] caught with a codefendant; . . . being caught [the day a prior

29 This was designated in the People’s moving papers as Detective Levesque and
no one else although other witnesses at trial offered expert evidence about gangs. In its
ruling, the trial court referred to Detective Levesque.

30At this point, the parties were focusing on the attempted murder (and, as a
consequence, the active gang participation charge) and not the possession charges.

31The trial court went into the basis for the prosecution’s expert’s opinion, not
because defendant raised it, but because the prosecutor raised it in her trial brief.

16
offense had been committed by other gang members] with another gang member[;] . . .

[¶] . . . when searching a house for a [fellow] gang member . . . who was an attempt[ed]

murder suspect, the [expert] found the defendant hiding[;] . . . the [expert seeing] an

incident report that indicated that defendant had been present, had a knife [fight] or

stabbing . . . involving another . . . member of that gang, although, the defendant had not

been charged with any crime in connection with that incident [a]nd . . . [that] the

defendant had a number of gang-related tattoos.” The trial court cited a California

Supreme Court holding that “prior conduct or acts committed at the time of the charged

offenses can be used to establish primary activity . . . of [a] gang.” The court cited

another opinion holding that the expert may “base . . . his opinion . . . on conversations

with the defendant and with other Family Crip members, his personal investigations in

hundreds of crimes committed by gang members, as well as information from his

colleagues in various law enforcement agencies. [¶] . . . [¶] . . . ‘Expert testimony may

also be premised on material of a type that is not admitted in evidence, so long as it is

material of a type that is reasonably relied upon by experts in a particular field forming

their opinions. If the threshold question of reliability is satisfied, even a matter that is

ordinarily inadmissible can be a proper basis for an expert opinion.’” The trial court

concluded that the items of evidence the prosecutor proposed to introduce in this case

were the “type that may reasonably be relied upon by experts” and this included offenses

committed by defendant and other 2800 members, the effect those crimes had on

enhancing the reputation of the gang, defendant’s contacts with law enforcement between

1994 and 2010 to prove that he was an active member of the gang, his tattoos, the gang

17
graffiti found in his jail cell and a phone conversation he had with a fellow gang member

while the latter was in jail. Defense counsel conceded that the prosecutor could

introduce evidence of “the prior contact and the hearsay statements and personal

investigation and all the items that the Court just indicated to form an opinion . . . .”

Defendant moved in a separate motion to exclude his booking statements

admitting that he was a member of 2800 on the basis that his statements were in violation

of Miranda.32 The trial court concluded, under People v. Gomez (2011) 192 Cal.App.4th

609 [Fourth Dist, Div. Two], that unless there was evidence that the admission of gang

membership had not been sought as part of the ordinary booking process, for which there

are legitimate reasons related to inmate and jailer safety, but for purposes of

incrimination, it was admissible. Defense counsel then argued that admission of these

statements was fundamentally unfair to defendant, which appeared, due to its context, to

be more of an assertion that it is not fair to use a defendant’s statements during booking

against him later in another trial, rather than an argument under Evidence Code section

352. The trial court ruled the statements were admissible.

Defendant also moved separately to exclude evidence of his 2006 prior conviction

of assault with a firearm as a predicate offense. The trial court granted this motion,

finding that there were plenty of other predicate offenses committed by other 2800

members, therefore, the probative value of the evidence was outweighed by its prejudicial

impact. However, the prosecutor then sought admission of the evidence on the basis that

32 Miranda v. Arizona (1966) 384 U.S. 436.

18
during the 2006 crime, defendant invoked 2800, and since the prosecutor had to prove

that at the time of the charged offenses, defendant was an active member of 2800, and

defendant had gone to prison for this conviction and the charged crimes occurred less

than a year after he was released, the evidence was probative. The trial court agreed and

ruled that the evidence was more probative than prejudicial.33

Defendant then moved orally to exclude evidence that 2800 graffiti had been

found in the jail cell he had occupied while awaiting trial in this case on the basis that

because there was another occupant of the cell, the foundation for admission of the

evidence could not be laid.34 The trial court ruled that while defendant could argue that

he didn’t put the graffiti there (that his cellmate did), the evidence was admissible.

Finally, defendant moved to exclude a recording of a March 23, 2010 jail phone

call made by another 2800 member to defendant on the basis that is difficult to tell who is

saying what during the conversation. The People represented that the two discussed the

death of their fellow gang member (Howard), whom they believed had been killed by a

particular member of the victim’s gang, and who they were looking for to avenge the

death. The People also represented that a deputy who had spoken to defendant at length

33 Contrary to the People’s assertion, defendant did not object to this evidence for
this purpose on the basis of the remoteness of the acts. That argument pertained only to
their assertion that the conviction should not be used to impeach defendant should he
choose to testify.

34 Defense counsel stated, “Since there were two people in the cell and . . . gang-
related graffiti [was] found, I just don’t believe a foundation is met that those graffiti
belonged to [defendant].” Therefore, we disagree with the People’s characterization of
defendant’s objection below as one of relevance.

19
and listened to hours of his jail phone conversations, could identify the latter’s voice on

the recording and the call began with the jailed 2800 member asking for defendant by his

first name and his moniker. The trial court concluded that the evidence was relevant

because it tended to show motive and that defendant was an active member of the gang

and sufficient foundation had been established.

It is against this background that the first prosecution witness, the victim, began

the People’s case-in-chief, testifying, without objection by the defense, inter alia, as an

expert about his gang and defendant’s. For defendant to assert that no evidence other

than defendant’s admission of his membership in 2800 on December 17, 201035 and the

fact that he had 2800 tattoos was necessary36 to prove his membership is disingenuous.

35 Defendant gets it completely wrong when he asserts that defendant admitted
his membership to the Riverside police officer heretofore mentioned. The officer never
so testified, which is probably why defendant’s assertion is not accompanied by a citation
to the record.
36
Although defendant complains about this officer testifying that defendant was a
leader and shot caller in 2800, we note with interest that it was defense counsel who, on
cross-examination of the officer, asked him the leading questions whether defendant was
both (defense counsel also asked if defendant was a “big fish” in 2800), to which the
officer responded in the positive. The prosecutor, during her direct examination of the
officer, had not broached the subject of defendant’s membership in 2800. Defendant fails
to mention this in his opening brief.
When the prosecution’s gang expert testified that defendant admitted during a
December 17, 2008 interrogation that the latter was a member of 2800, the trial court
instructed the jury to not consider this evidence for the truth of the matter asserted
therein, but only as the basis for the prosecution expert’s opinion that defendant was a
member of 2800.
Finally, as we often see in gang cases, tattoos are not always indicative of
continuing membership in a gang because they are permanent, unless removed via
painful and expensive laser treatments, which most former gang members cannot afford.
Because the prosecutor had to prove that during the June 2010 attempted murder and
[footnote continued on next page]

20
As the prosecutor pointed out during the pretrial discussions, summarized above,

defendant’s membership in 2800 or, as applies to this particular case, his membership on

June 25, 2010 and December 17, 2010,37 was not all she had the burden to prove.

Defendant’s argument also ignores what actually happened at this trial. After defendant

conceded that the items he now claims should not have been admitted were admissible,

objected only to the admission of his booking statements concerning his membership on

the basis that it was fundamentally unfair to him, and to the admission of evidence about

the jail cell graffiti and the jail phone conversation on the basis of foundation, the victim

gave his testimony about the conflict between 2800, of which defendant was associated,

and Evans Street, opining, in the process, that it was the reason defendant shot him, all

without objection by the defense. The next witness of substance was the Riverside police

officer, heretofore mentioned, who said nothing about defendant or 2800 during his direct

examination by the prosecutor. However, during cross-examination by defense counsel,

in answer to leading questions by defense counsel, he testified that he considered

defendant one of the leaders, “shot callers” and “big fishes” of 2800. Additionally,

defense counsel solicited from the officer more information about the murder of Howard.

This, in turn, opened the flood gates for the prosecutor to ask the officer on redirect more

about the murder, which lead to the first mention at this trial of the Mexican Mafia,

[footnote continued from previous page]
active participation in a gang and during the December 2010 gun possessions, defendant
continued to be a member of 2800, the tattoos would not have sufficed.

37 See the last paragraph of footnote 30, ante, page 17.

21
unobjected to below by the defense, which defendant now cites as a further example of

the prejudice to which he was exposed at trial. Under the circumstances, for defendant to

appear outraged that evidence of his gang membership apart from his December 17, 2010

admission and the tattoos on his body was admitted is preposterous.

Under the guise of reiterating the foundational objection he made below to the

evidence that there was 2800 graffiti in the jail cell he occupied pending this trial,

defendant’s sole assertion is that, “[t]he only probative value of the graffiti evidence was

to inform the jury that [defendant] was considered dangerous enough to be taken off the

street and kept in a nasty jail cell for over one and one-half [years] between his arrest and

trial, with either no bail or too high a bail to post to obtain his release.” On direct

examination, the prosecution gang expert was asked what information he had that

defendant was a 2800. He responded, inter alia, that 2800 graffiti had been chipped into

the paint in defendant’s cell and on a desk inside it, and photos of this were shown to the

jury. The prosecutor never solicited (nor did defense counsel) from the witness how long

defendant occupied that cell, so defendant’s current objection that defendant was in the

cell from arrest to trial is based on pure speculation. We have already addressed

defendant’s argument that there was no need for the prosecutor to solicit further evidence

that defendant was a 2800 member because defendant admitted it on December 17, 2010

and had 2800 tattoos. During cross-examination by defense counsel, it was brought out

that the witness did not know how long the graffiti had been there, that defendant had

cellmates and it was not known how many he had, that the jail tended to house together

inmates of the same gang, and the witness did not know for certain who created the

22
graffiti. Thus, the foundational issue defendant asserted below was brought to the jury’s

attention. Despite this, defense counsel conceded during argument to the jury that

defendant was a 2800 member and argued that because the victim had told the case agent

that Howard’s killer was a member of Fern Street, and the victim was a member of Evans

Street, defendant had no motive to attempt to murder the victim, therefore, he was not

guilty of either that crime or the substantive gang crime. As the trial court below

concluded, a foundational issue is not a legitimate reason for excluding the evidence.

Evidence Code section 403, subdivision (a) (4) provides, in pertinent part, “The

proponent of the proffered evidence has the burden of producing evidence as to the

existence of the preliminary fact, and the proffered evidence is inadmissible unless the

court finds that there is evidence sufficient to sustain a finding of the existence of the

preliminary fact, when: [¶] . . . [¶] (4) The proffered evidence is of a statement or other

conduct of a particular person and the preliminary fact is whether that person . . . so

conducted himself.” “‘The [trial] court should exclude the proffered evidence only if the

‘showing of preliminary facts is too weak to support a favorable determination by the

jury. . . . The decision whether the foundational evidence is sufficiently substantial is a

matter within the [trial] court’s discretion.’” (People v. Rundle (2008) 43 Cal.4th 76,

129, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.

22.) Defendant does not even here assert that the trial court abused its discretion in

finding that there was sufficient foundation that defendant was the person responsible for

the graffiti in his cell in order to admit the evidence. Moreover, the jury was instructed as

follows, “You may consider evidence of gang activity only for the limited purpose of

23
deciding whether: [¶] The defendant acted with the intent, purpose and knowledge that

are required to prove the gang-related crimes and enhancements; [¶] The defendant had

a motive to commit the crimes charged; [¶] You may also consider this evidence when

you evaluate the credibility or believability of a witness and when you consider the facts

and information to rely on by an expert witness in reaching his or her opinion. [¶] You

may not consider this evidence for any other purpose. You may not conclude from this

evidence that the defendant is a person of bad character or that he has a disposition to

commit crime.”

As already stated, defendant’s sole objection at trial to the admission of the

recorded jail conversation between him and another 2800 member was foundational.

Here, defendant, by misinterpreting evidence, asserts that admission of the recording was

outrageously prejudicial to him, a matter he waived below by failing to object on this

basis. However, because the argument in defendant’s opening brief is so inflammatory in

nature, we will examine the conversation and the expert testimony concerning it.

The substance of the conversation is very difficult to discern and requires, at

times, heavy dependence on the prosecution’s gang expert’s interpretation of it. In it, a

jail inmate, who previously during trial had been identified as someone defendant had

told police on December 17, 2010 was running 2800 with him, called defendant, who

previously during trial, thanks to defense counsel, had been identified as a leader, shot

caller and big fish of 2800. Defendant told his fellow leader that a member of Evans

Street had told him that that member, or some third person, and the man suspected of

killing Howard had been taxing Howard when things went badly and Howard was killed.

24
Defendant’s fellow leader told defendant that he did not trust this Evans Street member

and he had told defendant that while in prison. They discussed this person being on the

outs with members of his own gang, the activities of the law enforcement gang task force

in the neighborhood and they traded information about the activities of a Moreno Valley

gang and an assault near Riverside Community College on two Hispanics. Defendant

complained that he had only one person who could be relied upon to put in work,

meaning to commit crimes for the gang. Defendant’s fellow leader told defendant that

the latter needed to get the younger members of 2800 who weren’t doing what they were

supposed to be doing to be more productive.38 Defendant told his fellow leader about an

incident involving two 2800 members about which the Riverside police officer had

already testified. They discussed how one of these two members was messing up.

According to the prosecution gang expert, they also discussed throwing this member out.

When defendant complained about “a bunch of little shit going on”[,] the fellow leader

told defendant, “[Y]ou need to get all that shit out of the way” and defendant agreed.

According to the prosecution’s gang expert, they were trying to get their house in order in

light of the impending battle with people that used to be part of a truce with them.

According to that expert, they also discussed finding the suspected killer of Howard.

They then discussed a member of Fern Street who had been convicted of numerous

38 The prosecution’s gang expert added context to this part of the conversation by
saying that defendant and his fellow 2800 member indicated that they knew that a battle
was heating up between 2800 members and those with whom they formerly had had a
truce, that the younger members of 2800 had never had to deal with this before and that it
was time to clean house.

25
crimes and sent to prison for many years after giving the fellow gang leader information

about the suspected killer of Howard while both had been in the jail. The fellow leader

told defendant something about a gang shot caller inside the jail who had put a green light

on him, meaning that the fellow leader would be killed.

The prosecution’s gang expert went on to testify that the reason the member of

Evans Street who talked to defendant about Howard’s murder had a relationship with the

defendant involved “some mid to high level politics of gang culture.” He opined that this

Evans Street member was “supposedly also a tax collector . . . [a]nd at one point possibly

an associate of the Mexican Mafia.” He went on to explain that the Mexican Mafia

control all the street gangs and sales of drugs, and “when you get to a certain level, the

[Mexican Mafia are] no longer are concerned with what [clique] you’re from. They don’t

care if you’re from Evans Street or Fern. The Mexican Mafia wants their money.” He

said that the Evans Street member collected taxes for the Mexican Mafia with someone

who might be from a rival gang, and if they did not, they would be killed. He added that

there had been a rumor that the Evans Street member had been targeted for death by the

Mexican Mafia for a long time because he was collecting taxes on his own, without the

Mexican Mafia’s authorization, and that was why he was eventually killed. All the

evidence came in without objection by the defense.

Defendant here asserts that the conversation included statements to the effect that

before the Evans Street member died, defendant was also trying to find him, and “that

[defendant] was waiting to receive some ‘paperwork’ from the Mexican Mafia.”

Defendant completely misinterprets that portion of the conversation to which he refers

26
and the prosecution gang expert’s explanation of it. The expert testified that at the

beginning of their conversation, the fellow leader seemed to be trying to figure out where

the Evans Street member was, so the latter could be questioned about Howard’s murder,

but defendant interrupted him and told him that he has already spoken to the Evans Street

member, who told him about the murder, as reported above. After defendant explained to

the fellow leader why Howard had died, he added, “Yeah, I’m still waiting on

the . . . paperwork” which the gang expert testified meant court documents and police

reports that gang members check to see who is talking about the crimes or who the

witnesses are and what happened.39 There was no reference whatsoever during this part

of the conversation to the Mexican Mafia. For defendant to assert that during this

passage (or any other, for that matter), there was an implication that he was “acting, or at

least prepared to act, as a contract killer for the Mexican Mafia, for the specific purpose

of murdering [Howard’s killer] and [the Evans Street member]” is patently absurd.

Defendant next asserts that the prosecution gang expert’s testimony that on six

different occasions between February 19, 1994 and December 17, 2010, defendant

admitted being a 2800 member while being booked into jail, and that his fellow leader

had been convicted of discharging a firearm and other crimes, “including a gang

allegation” based on acts occurring on a particular day “demonstrate[d] to the jury that

39Defendant misreads the record when he asserts that it also refers to money.
The expert testified that a later reference in the conversation to “paper” (not
“paperwork”) was to money, and it involved the fellow leader telling defendant to get
gang members to get some money so it could be put on the books at jail for his use in the
commissary.

27
not only had [defendant] personally and consistently broken the law and committed

numerous crimes for which he had been arrested and jailed over a period of more than 13

years, but that he was also the co-leader with [someone], who also had an impulsive and

violent character.” However, the jury had been instructed by the trial court to use

defendant’s booking admission only as the basis for the expert’s opinion that defendant

was a 2800 member, therefore, the jury could not possibly have used them to conclude

that defendant had committed numerous crimes for which he had been arrested and jailed.

As to the fellow leader’s convictions, the People were obliged to prove that 2800

members “have engaged in a pattern of criminal gang activity” in order for the jury to

make true findings as to the charged gang allegations and active gang participation

offense and the expert limited his testimony in that regard to this subject. Additionally,

defendant made no objection below to this latter evidence, therefore, he waived the

matter.

Defendant also now makes the same complaint about evidence of his “in field”

admissions of membership in 2800, however, he not only conceded below that this was

admissible, as already stated, but the trial court instructed the jury that it could use this

evidence only as the basis for the expert’s opinion that defendant was a 2800 member.

Finally, defendant complains that evidence that in 2006, he confronted someone

over a sign of disrespect, during which he pointed a handgun at the person and made a

reference to 2800, for which he was arrested, should not have been admitted. The trial

court concluded that this evidence was more probative than prejudicial to show that

defendant was an active member of 2800, despite his age, which would in the gang

28
culture be considered to be advanced for a gang member. Defendant did not actually

object to the admission of this evidence for this purpose, therefore, his current claim that

admission of this evidence violated Evidence Code sections 1101 and 352 was waived.

(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 408.) To the extent one

wishes to impute an Evidence Code section 352 objection to the defense, due to the trial

court’s agreement with the prosecutor’s argument that the evidence was more probative

than prejudicial to prove defendant’s continuing participation in 2800, we are not

persuaded that the trial court abused its discretion in this regard. The prosecutor

represented below, without contradiction by the defense, that defendant went to prison for

the 2006 crimes, and was out less than a year when he committed the instant crimes.

Given defendant’s advanced age, in terms of gang culture, we cannot conclude that

admission of this evidence for the purpose of proving defendant’s continuing

participation in 2800 exceeded the bounds of reason.

As we have already stated, defendant, during argument to the jury, conceded that

he was a 2800 member and it was defense counsel, himself, who initially solicited

testimony that defendant was a leader, shot caller and big fish in the organization. The

real issue in this case, as to the charged attempted murder and active gang participation

and, as a foundational matter, the gang enhancement allegations, was the identity of the

victim’s shooter, which, essentially boiled down to the credibility of the victim and that

of defendant’s friend, who claimed that his truck was inoperable during 2010. In fact,

defense counsel used the fact that defendant was a shot caller in 2800 to imply that the

29
police unfairly targeted defendant as the victim’s shooter, as evidenced in the March 23,

2010 jail call.

Defendant asserts that even if admission of this evidence did not violate state law,

he is entitled to relief if it is so prejudicial that it renders the trial fundamentally unfair.

We disagree with defendant that admission of this evidence rendered his trial

fundamentally unfair. Defendant cites no authority holding otherwise. In fact, it was

typical of evidence admitted in gang cases. “[W]hen no specific federal constitutional

challenge to the evidence was raised below, . . . appellate claims” “that the trial court’s

asserted evidentiary errors deprived them of due process under the federal

Constitution . . . are preserved only to the extent that the federal aspect is a gloss on the

claim of error actually raised. [Citation.] . . . [E]very state law error does not

automatically result in a violation of the federal Constitution . . . (People v. Cudjo (1993)

6 Cal.4th 585, 611 . . . [‘for the most part . . . the mere erroneous exercise of discretion

under such “normal” rules [of evidence] does not implicate the federal Constitution’];

Engle v. Issac (1982) 456 U.S. 107, 121, fn. 21 . . . [‘We have long recognized that a

“mere error of state law” is not a denial of due process. [Citation.] If the contrary were

true, then “every erroneous decision by a state court on state law would come [to this

Court] as a federal constitutional question.”’].)” (People v. Bryant, Smith and Wheeler,

supra, 60 Cal.4th 335, 413, fn. 34.) Moreover, defendant waived the matter by failing to

assert it below, except as to the booking statements.

Defendant also contends that admission of the foregoing evidence as the basis for

the prosecution gang expert’s opinion violated his right to confrontation. At the same

30
time, he concedes that we are bound by California Supreme Court precedent holding

otherwise (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th 335, 413; Auto Equity

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and he asserts that he raises the

issue only to preserve his right to relitigate it later in federal court. We also note that

defendant waived his complaint by failing to object to this evidence below on the basis of

confrontation. (Ibid.)40

2. Sufficiency of the Evidence

a. Active Participation in a Criminal Street Gang

The jury was instructed that in order to convict defendant of this charged offense,

the People must prove that: “the defendant actively participated in a criminal street gang[,

[¶] . . . [w]hen the defendant participated in the gang, he knew that members of the gang

engage in or have engaged in a pattern of criminal gang activity . . . and [¶] . . . the

defendant willfully assisted, furthered, or promoted felonious criminal conduct by

members of the gang either by . . . [¶] [d]irectly and actively committing a felony

offense . . . or [¶] [a]iding and abetting a felony offense. [¶] . . . [¶] Felonious criminal

conduct means committing or attempting to commit any of the following crimes: [¶]

[a]ttempted murder as charged in Count 1.” The parties argued to the jury that the

felonious criminal conduct was the attempted murder.

A few months after this trial took place, the California Supreme Court, in People

v. Rodriguez (2012) 55 Cal.4th 1125, 1132, 1134, held that in order to convict a

40
During the latter part of his argument, defendant incorrectly refers to Howard
as Thomas.

31
defendant of actively participating in a criminal street gang, the People must also prove

that the “felonious criminal conduct be committed by at least two gang members, one of

whom can include the defendant if he is a gang member . . . [¶] . . . [¶]

186.122(a) . . . require[es] that a person commit an underlying felony with at least one

other gang member.” In Rodriguez, the evidence indisputably established that the

defendant acted alone. (Id. at pp. 1128, 1131.) Defendant contends that there was

insufficient evidence that the passenger in the truck was a member of 2800 or any gang.

We disagree.

There was evidence from which a reasonable juror could have concluded that the

passenger in the truck with defendant on the night of June 25, 2010 was a fellow 2800

member. Specifically, there was more than sufficient evidence that the motive for the

attempted murder was retaliation for the killing of Howard. The victim testified that

when the occupants of the truck passed him the first time, they looked at him crazy or had

a mad look on their faces. Although he testified at trial that the passenger was a person

he did not know, he told the police that the passenger was a 2800 member, whom he had

seen before. The victim testified that the truck drove past him not at a fast pace, went

beyond him, then sped up to make a u-turn and return to a position 8-10 feet in front of

him, where it either slowed down or stopped and he was shot. He told the police that

before defendant fired, the victim thought that the passenger was going to shoot the latter,

but defendant told the passenger, “Hand me that shit, hand me that shit” then defendant

shot the victim. The prosecution’s gang expert testified that the vast majority of gang

members will not allow someone else to commit crimes with them unless they are also

32
members of that gang. The foregoing constitutes substantial evidence supporting an

implied finding by the jury that the passenger in the truck was a fellow 2800 member.

b. Active Participation in a Criminal Street Gang and Gang Enhancements

As to the enhancements attached to the attempted murder and the firearms

possession, the jury was instructed,

“To prove this allegation, the People must prove that: [¶] . . . the defendant

committed the crime for the benefit of, at the direction of, or in association with a

criminal street gang; and [¶] . . . the defendant intended to assist, further, or promote

criminal conduct by gang members.”

To summarize the testimony already described about the conflict between 2800

and Evans Street or Fern Street preceding the shooting of the victim, the Riverside Police

officer testified that after the murder of Howard on Evans Street turf, 2800 members were

seen for the first time in places he had never before seen them, i.e., enemy territory,

including Evans Street turf, suggesting that they were searching for someone and there

was going to be retaliation. Evans Street members were much more visible in Casa

Blanca—Fern Street members were not, Howard’s killer had disappeared after the killing

and it was his opinion that if Howard’s killer could not be located, retaliation would be

directed at another member of either Evans Street or Fern Street. The victim told police

that 2800 members would have a hard time finding a member of Fern Street against

whom they could retaliate and they would turn their retaliation into a “race thing” and go

after members of Evans Street, who were more visible than members of Fern Street. The

victim reported being “mad dogged” by defendant and his passenger just before the

33
shooting. During defendant’s phone conversation with his fellow gang leader, a month

after Howard’s killing, they discussed the reason for the killing, who was suspected of

doing it, how this person could be found and that a member of Fern Street had given the

fellow leader information about the suspect. The reason defendant offered his fellow

leader for the murder of Howard was the same reason about which the Riverside Police

Officer testified. It is also clear from the conversation that the two, together, were

deciding how 2800 should be administered.

The prosecution’s gang expert testified that the murder of Howard heralded a sea-

change in the relationship between 2800 and the Hispanic gangs in Casa Blanca and was

a slap in the face to 2800. Thereafter, efforts were made by 2800 to find Howard’s killer,

as evidenced by the phone call between defendant and his fellow leader, but no one,

including 2800 and the police, could find him. The police began to notice 2800 members

in Evans Street turf, as evidenced by the fact that the Riverside Police Officer saw 2800

members there and caught two of them there, one of whom had a bullet in his pocket.

Even though the police were not positive whether Howard’s killer was Fern Street or

Evans Street, he regularly went into Evans Street turf, where he was eventually arrested.

There was no point to 2800 looking to retaliate in Fern Street turf as Fern Street members

were not very visible there and few lived there. However, it was easy to find Evans

Street members, especially at the park, near where the victim had been shot. The victim’s

shooting was in retaliation for Howard’s murder and not because there was any personal

animosity between the victim and defendant. As the people correctly note, no one gave

an opinion that the firearms possessions were gang-related.

34
 Defendant claims the evidence was insufficient to support the verdict that he was

an active participant in a criminal street gang and the gang enhancement connected to the

attempted murder41 because “there was no non-opinion evidence that the shooting of [the

victim] had any connection with any gang activity.” In support, he cites People v. Ramon

(2009) 175 Cal.App.4th 843 (Ramon) and In re Frank S. (2006) 141 Cal.App.4th 1192

(In re Frank S.), but they are distinguishable. He also cites People v. Ferraez (2003) 112

Cal.App.4th 925 (Ferraez), which does not support his position.

In Ramon, the defendant and a fellow gang member were caught by the police in

the heart of their gang’s turf driving a stolen truck, which contained an unregistered hand

gun that did not belong to the truck’s owner. (Ramon, supra, 175 Cal.App.4th at pp. 846-

847.) The prosecution’s gang expert testified that the crimes of receiving a stolen vehicle

and possessing the gun were related to what he said were the primary activities of the

gang because having both would enable gang members to commit those crimes and then

get rid of the vehicle and the gun. (Id. at pp. 847-848.) He also said that both items

could be used to spread fear and intimidation. (Id. at p. 848.) The appellate court

observed, “[The prosecution’s gang expert’s] opinion was based on his belief that

because the gun and the stolen vehicle could be used to facilitate the commission of a

crime, and the [gang] commits crime[s], the two must have been acting on behalf of the

[gang]. [¶] . . . [¶] . . . There were no facts from which the expert could discern whether

41 As the People correctly point out, because none of defendant’s arguments refer
to the gang enhancements connected to the firearms possessions, he has waived his
argument that the evidence supporting them is insufficient.

35
[defendant and his fellow gang member] were acting on their own behalf . . . or were

acting on behalf of the [gang]. While it is possible the two were acting for the benefit of

the gang, a mere possibility is nothing more than speculation. Speculation is not

substantial evidence. . . . [¶] The . . . [facts that defendant] was with another gang

member, and . . . was in gang territory . . . standing alone, are not adequate to establish

that [defendant] committed the crime with the specific intent to promote, further, or assist

criminal conduct by gang members. . . . [T]here is nothing in the record that would

permit the People’s expert to reach th[e] conclusion . . . [that defendant was acting with

this specific intent.] [¶] . . . The facts on which [the prosecution’s gang expert] based his

testimony were insufficient to permit him to construct an opinion about [the defendant’s]

specific intent in this case. His opinion, therefore, cannot constitute substantial evidence

to support the jury’s finding on the gang enhancement. [¶] . . . [¶] The analysis might

be different if the expert’s opinion had included ‘possessing stolen vehicles’ as one of the

activities of the gang. . . . [¶] . . . [¶] The . . . cases we have reviewed . . . have not

revealed any situation where expert testimony about a possible reason for committing a

crime was sufficient, by itself, to establish the crime was committed with the specific

intent to promote, further, or assist in criminal conduct by gang members.” (Id. at pp.

849, 851-853, italics added.) Contrary to defendant’s assertion, Ramon does not stand for

the proposition that more than expert opinion testimony must support a substantive gang

conviction and gang enhancements. Ramon clearly questioned the substantiality of the

expert opinion offered there on the basis that it was not supported by the evidence

presented. Moreover, there was more than just the opinion of the prosecution’s gang

36
expert in this case to establish the requisites for the substantive gang offense and the

enhancement. Finally, the factual differences between Ramon and this case are obvious.

In In re Frank S., the juvenile was caught in possession of a dirk or dagger, which

he said was for self-protection. (In re Frank S., supra, 141 Cal.App.4th at pp. 1194-

1195.) The prosecution’s gang expert opined that a gang member would use the knife for

protection from rival gang members and to assault the same. (Id. at p. 1195.) The

appellate court that decided Ramon held, “[H]ere nothing besides weak inferences and

hypotheticals show the minor had a gang-related purpose for the knife. [¶] [T]he expert

simply informed the judge of her belief of the minor’s intent with possession of the knife,

an issue reserved to the trier of fact. . . . [T]he prosecution presented no evidence other

than the expert’s opinion regarding gangs in general and the expert’s improper opinion on

the ultimate issue to establish that possession of the weapon was ‘committed for the

benefit of, at the direction of, or in association with any criminal street gang . . . .’

[Citation.] The prosecution did not present any 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. (Id. at p. 1199, italics added.) For the same reasons Ramon does

not apply here, neither does In re Frank S.

Finally, in Ferraez, the defendant, a self-admitted gang member, was caught with

rock cocaine. (Ferraez, supra, 112 Cal.App.4th at pp. 925, 928.) He denied selling it for

the gang in whose territory he was, but he said he had this gang’s permission to sell it

there. (Ibid.) The prosecution’s gang expert testified that gang members sell drugs

because it involves less risk than other crimes and the profits can be used to buy guns or

37
more drugs to increase the volume of their business and a member possessing a drug for

sale enhances a gang’s reputation. (Ibid.) Given a hypothetical that incorporated the

facts of this case, the expert opined that the drugs were intended to be sold to benefit or in

association with a gang, the proceeds could be used to benefit the gang in purchasing

guns or more drugs or bailing a member out of jail and the sale of drugs promotes

criminal conduct by the gang. (Ibid.) The Ferraez court observed, “[T]he expert’s

testimony alone would not have been sufficient to find the drug offense was gang related.

But here it was coupled with other evidence from which a jury could reasonably infer the

crime was gang related. Defendant planned to sell the drugs in [the] . . . territory [of

another gang]. His statements . . . that he received permission from that gang to sell the

drugs . . . and his . . . admissions . . . that he was a member of . . . a gang [that was] on

friendly terms with [the former gang], also constitute circumstantial evidence of his

intent.” (Id. at p. 931.) In this case, like in Ferraez, there was evidence aside from the

prosecution’s gang expert’s opinion, as stated above, from which the jury could

reasonably infer that the attempted murder was gang related, therefore, the gang

allegation attached to the actual murder was true and he was guilty of the substantive

gang charge.

Defendant suggests that there is insufficient evidence because he did not invoke

his gang’s name during the attempted murder. However, the prosecution’s gang expert

testified that it was not common for gang members to call out the name of their gang

during crimes due to the penalties that are imposed for gang enhancements. The jury was

free to credit this testimony. Defendant asserts that the absence of an announcement by

38
defendant suggests that the shooting was done for personal reasons. However, as already

stated, the victim testified that he had no personal beef with defendant and there was no

evidence to the contrary.

Defendant also asserts that the prosecution’s expert’s opinion was “based on

‘incompetent hearsay under the guise of stating reasons for an opinion’ and therefore

[was] entitled to no evidentiary weight at all.” Defendant, however, is not specific about

which parts of the expert’s testimony was based on what he deems incompetent hearsay.

Moreover, our summary of the evidence supporting the substantive offense and the

enhancement on the attempted murder belies this.

c. Possession of Firearms/Ammunition/Destructive Device

Defendant contends that there was insufficient evidence to support his convictions

for the possession offenses because there was no evidence he had access to the Hill Street

residence or those items. We disagree. Defendant certainly had access to the residence

on December 17, 2010, and thus, to the items in it. According to a neighbor and even his

own girlfriend’s testimony, he had access to it on other days as well. Despite his later

back peddling, his friend admitted to police and testified at trial that defendant lived there

and the friend’s back peddling was undermined by the latter’s testimony that defendant

was never at his parents’ house, where his friend claimed he was living, when the police

frequently looked for him there. Defendant’s girlfriend and the neighbor likewise told

the police that defendant lived there. The presence in the home of photographs, Steelers

merchandise (which defendant’s girlfriend told the police was defendant’s) and

Christmas gifts bearing defendant’s name and the fact that defendant could not be

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eliminated as a contributor of the DNA found on the firearms provided further

circumstantial evidence of defendant’s access to the home and those items, which was

neither speculative nor conjectural, as defendant asserts. The girlfriend’s denials to the

police of any knowledge of the contraband items conflicted with her trial testimony,

which was further undermined by her professed ignorance of firearms and how they are

used. Unlike defendant, there was no evidence that defendant’s girlfriend’s son (age

unknown), defendant’s friend and the friend’s brother and his girlfriend, both truck

drivers, who frequented the residence, were gang members who would find firearms,

ammunition and an incendiary device useful.

DISPOSITION

The trial court is directed to amend the minutes of September 28, 2012 to strike

the reference to defendant committing a third strike. On defendant’s indeterminate

abstract of judgment, number 6c should be changed to “45 years to life on Count 1” and

the first box on number 8 should be checked. On defendant’s determinate abstract of

judgment, the first and second boxes on number 4 should be checked. In all other

respects the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.

We concur:

HOLLENHORST
J.
KING
J.

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