People v. Wilkerson CA4/2

Filed 7/16/15 P. v. Wilkerson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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, E060059

v. (Super.Ct.No. RIF1103080)

SCYLER LEE WILKERSON et al., OPINION

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge.

(Retired judge of the Riverside Super. Ct., assigned by the Chief Justice pursuant to art.

VI, § 6, of the Cal. Const.) Affirmed with directions.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and

Appellant Scyler Lee Wilkerson.

Michael Bacall, under appointment by the Court of Appeal, for Defendant and

Appellant Antoine Dwayne Dozier.

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 Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and

Respondent.

A jury convicted defendants and appellants Scyler Lee Wilkerson and Antoine

Dwayne Dozier (collectively, “defendants”) of two counts of robbery (Pen. Code,

§ 211),1 two counts of second-degree burglary (§ 459), and active participation in a

criminal street gang (§ 186.22, subd. (a)).2 The jury also found the following special

allegations true: (1) that Wilkerson personally used a firearm while committing each of

the robberies and burglaries (§§ 12022.5, subd. (a), 12022.53, subd. (c)); (2) that Dozier

participated in each of the robberies and burglaries as a principal with knowledge that

another principal was armed with a firearm (§ 12022, subd. (a)(1)); and (3) that

defendants committed all crimes but the count for participation in a criminal street gang

for the benefit of, at the direction of, or in association with a criminal street gang

(§ 186.22, subd. (b)).

1 Unless otherwise specified, all statutory references are to the Penal Code.

2 In addition, the jury found Wilkerson guilty of evading a police officer with
wanton disregard for safety (Veh. Code, § 2800.2) and being a felon in possession of a
firearm (former Pen. Code, § 12021, subd. (a).) These convictions are not at issue on
appeal.

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 Wilkerson admitted having a 2003 carjacking conviction that qualified as a serious

felony conviction, a strike, and a prior prison term conviction. (§§ 667, subds. (c) & (d),

667.5, subd. (b).) Dozier admitted he had both a 2001 carjacking conviction that counted

as a serious felony strike conviction3 and a 2004 conviction for petty theft with a prior

theft-related conviction (§§ 667, subds. (c) & (e)(1), 667.5, subd. (b), 1170.12, subd.

(c)(1)).

The trial court sentenced Wilkerson to an aggregate term of 35 years. The

sentence was chiefly comprised of five years on the first robbery count, doubled because

of the prior strike conviction (§§ 667, subd. (e)(1), 1170, subd. (c)(1)), with a 10-year

enhancement for using a firearm (§ 12022.5, subd. (b)) and another 10-year enhancement

because of the gang findings (§ 186.22, subd. (b)). The court added another five years for

the prior prison enhancement (§ 667, subd. (a)). The sentences on all counts other than

the first robbery count were stricken, stayed (§ 654), or ordered to run concurrently. In

particular, the court indicated it was imposing but striking a six-year term on the count

for active participation in a criminal street gang (§ 186.22, subd. (a)). Nonetheless,

Wilkerson’s abstract of judgment reflects the imposition of a six-year prison term on this

count.

3Dozier filed a petition for writ of habeas corpus on a separate issue related to the
use of this juvenile offense at sentencing (case No. E061336). We ordered the habeas
corpus petition considered with this appeal. We will resolve that petition by separate
order.

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 As for Dozier, the trial court imposed an aggregate term of 26 years. It reached

this sum by imposing the upper limit of five years on the first robbery count, doubled

under the three strikes law, with a one-year enhancement for firearm use (§ 12022, subd.

(a)) and a 10-year enhancement because the crime was committed to benefit a gang (§

186.22, subd. (b)). The court then added a five-year prison prior enhancement (§ 667,

subd. (a)(1)). As with Wilkerson, the sentences on the remaining counts were stayed

(§ 654), stricken, or ordered to run concurrently.

The court ordered identical fees, fines and assessments as to both defendants. As

relevant to this appeal, these included a restitution fine in the amount of $240 (§ 1202.4,

subd. (b)). In addition, the court ordered defendants not to own or possess any firearm,

deadly weapon, or ammunition for the rest of their lives. The minute order contains

language to this effect but also prohibits ownership or possession of “related

paraphernalia.”

Defendants each attack the sufficiency of the evidence supporting the findings

regarding gang participation. More specifically, Dozier asks us to reverse both his

conviction on the count for participation in a criminal street gang (§ 186.22, subd. (a))

and the gang-related enhancements (§ 186.22, subd. (b)) on the other counts. Wilkerson

only requests reversal of the gang-related enhancements (§ 186.22, subd. (b)). We affirm

the judgment because we find substantial evidence supports the jury’s findings regarding

gang involvement.

Wilkerson also challenges some of the other sentencing orders, including the

amount of the restitution fine, the lifetime ban on possessing weapons and related

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paraphernalia, and the mention of a sentence on the gang participation count in the

abstract of judgment. The People concede as to these matters. We will direct that the

judgment be modified in certain respects as described post.

FACTUAL BACKGROUND REGARDING THE CRIMES

On June 14, 2011, a store manager was working at a grocery store called El Toro

Market (El Toro). At approximately 8:54 p.m., a woman walked into the market,

“checked the store,” and left without purchasing anything or speaking to anyone. The

store manager had never seen her in El Toro.4

At approximately 9:07 p.m., two men entered the store. One wore a red baseball

hat and stood in an area near the door. The store manager later identified this man as

Dozier.

The other man was wearing a black baseball hat with the letter “T” on it. He

pointed a gun at the store manager and told him to open the register. At trial, the store

manager identified this person as Wilkerson. Although Wilkerson pointed the gun

directly at the store manager, he did it without extending his arm. Two witnesses

testified to seeing Wilkerson holding a gun close to his body. However, the gun was not

visible in the surveillance video the People played for the jury at trial.

Wilkerson then stepped behind the counter. He told the store manager not to

move and took all of the money inside the register. “A hundred dollars or more” were

4 The woman was later identified as Lannea White. The record contains no
indication that White was a party to the underlying prosecution; she is not a party to this
appeal.

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present in the register at the time. Defendants then left the store and ran across the

parking lot. Dozier told the store manager not to move as he left.

A store cashier immediately called 911. After law enforcement arrived, the

cashier identified defendants as the perpetrators during an infield identification.

At approximately 9:15 p.m. on the same night, defendants entered One Stop Food

and Water (One Stop). One Stop is only a “couple of blocks” from El Toro. Dozier

stood by the door.5 After grabbing a chocolate, Wilkerson came to the register. He was

wearing a “ball cap.” Wilkerson jumped the counter and told the cashier to open the

register; he had a gun. With the exception of some coins, Wilkerson took all the money,

which totaled $500 to $600, from the cash register.

A customer saw the crime in progress and ran to a nearby restaurant, where she

asked someone to call the police. A person who had been inside the restaurant went

inside the One Stop to check on the cashier, who was a friend of his. After he left One

Stop, he saw two men enter the front passenger and rear driver’s seats of a red Nissan.

The car “immediately started and took off.”

Using information received from a radio call, a police officer went to the area in

which the red Nissan was believed to be. He saw a red Nissan matching the description

that had been broadcast over the police radio. The officer made a u-turn and increased

5 The One Stop cashier was not able to identify defendants’ faces by the time of
trial and instead described which of them performed which actions based on their relative
heights. The record does not reflect which defendant was taller. We were therefore
forced to consult the probation reports for information that would have been readily
apparent to the jury but which is invisible to us.

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his speed to catch up with the red Nissan. A high-speed chase through residential

neighborhoods ensued. A helicopter assisted, and officers needed to use spike strips to

disable the red Nissan. Eventually, pursuing officers performed a felony stop after the

red Nissan came to rest at a gas station. A woman and two men exited the vehicle. At

trial, an officer identified the men as defendants.

After the felony stop, police officers asked the One Stop cashier to participate in

an infield identification. He identified Wilkerson as the gunman.

EVIDENCE OF GANG AFFILIATION

At trial, the People offered testimony from Richard Mendoza, an officer with the

Los Angeles Police Department. He had several years’ experience investigating gang

crimes and had testified as a gang expert at “well over” 70 preliminary hearings.

Regarding gangs generally, Officer Mendoza explained their primary purpose is to “rob

and . . . steal and kill people.” Gang members “thrive off of intimidation” because it

prevents witnesses from identifying suspects or testifying in prosecutions. Young gang

members build credibility on the street by “putting in work,” or committing crimes such

as robbery to benefit a particular gang. However, older gang members need to put in

work, too. After all, “You can’t be a member of [a] particular gang if you are not

committed to the lifestyle.”

One “easy way” for gang members to bring money into the gang is “to go out and

rob people, whether that be a strong-arm robbery, physically taking their chain or their

wallet, or going and robbing them at gunpoint in the street or in a store or market.” When

gang members take in money that way, it is often “shared amongst” the robbers. In such

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cases, “initially the benefits are usually monetary to get quick fast money.” Gang

members also use money brought into the gang to buy narcotics and weapons, which are

the “tools of the trade.” In this way, when a gang robbery occurs, “the individual [who

committed it] benefits monetarily and the gang benefits because that is how they are able

to get tools of the trade.”

Officer Mendoza had particular experience with the Eight-Trey Gangster Crips

(ETG). He described this organization as an active, turf-based criminal street gang that

began on 83rd Street in Los Angeles. There are multiple cliques, including the St.

Andrews Park and New Orleans Saints cliques, within ETG. ETG tend to wear “different

sports apparel,” but they tend to prefer apparel displaying the letters “E,” “T,” or “G.”

Although the gang used to prefer wearing blue, members now identify themselves as

members by “the different types of tattoos they might have on their person or the sports

apparel they might wear.” ETG also have distinctive hand signs and graffiti, although

Officer Mendoza admitted there was no evidence that Wilkerson, at least, had used any of

these.

At the time of the crimes described above, law enforcement had documented 500

to 570 members of ETG. Officer Mendoza estimated he had personal knowledge of

approximately 300 of these individuals. He testified that police agencies maintain a

statewide database of information regarding known gang members. Information enters

the database after law enforcement officers complete field identification cards

documenting their interactions with gang members. These cards track information such

as gang affiliations, types of clothing worn, tattoos, and gang monikers. As Officer

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Mendoza noted, however, field identification cards are not completed for every contact

an officer has. He stated: “So if you know people or you worked a particular gang for a

period of time, you wouldn’t—I didn’t always fill out a field identification card.”

ETG remains based in a particular area of Los Angeles, “but they are not limited

to that area per se.” Signature crimes of ETG include “vandalism, carjackings, robbery,

assaults, both physical and with weapons, narcotic sales, various weapons violations,

witness intimidation, [and] murder.” Officer Mendoza explained that robberies show that

a gang “has a lot of power, and that’s how gangs thrive, and respect is everything.” He

explained: “The committing robbery, especially if it is in another area, your own gang

respects you, your rival gang respects you.” When respect is present, gangs are better

able to recruit “incorrigible youths to join their criminal enterprise.” This is because

“young incorrigible youths” only want to be part of a gang that has “a lot of power.”

Officer Mendoza also testified about defendants, specifically. He said he had had

well over a dozen contacts with Dozier. Dozier had even admitted to Officer Mendoza

that he was a member of ETG. Dozier has several gang-related tattoos, including: a hand

sign on his neck; an “8” on his left triceps and a “3” on his left, which is “very common”

among ETG; a “G” and a “C” for gangster crips and “St. Andrews,” which is an ETG

clique, on his back; and, on his torso, “G” for “gangster” surrounded by the names and

hand signs of all the ETG cliques but one of the newest. Dozier’s gang moniker was “Lil

Greedy.” In short, from personal contacts and from reviewing field identification cards

completed by other officers, Officer Mendoza “kn[ew Dozier] well.” He opined Dozier

was an active gang member at the time of the events described above.

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 In contrast to Dozier, Officer Mendoza did not know Wilkerson personally.

However, he noted Wilkerson had been “out of the area” for the previous nine years. For

the following reasons, Officer Mendoza opined Wilkerson was an active member of ETG

on the day of the robberies.

First, after he became aware of this prosecution, Officer Mendoza contacted other

police officers and talked to two “other members” to obtain information about

Wilkerson’s gang status. He used a photograph of Wilkerson to ensure accurate

identification. The other officers and the informants they used told Officer Mendoza that

Wilkerson used the moniker, “Saint.” Because the New Orleans Saints were a clique

within ETG, Officer Mendoza had arrested multiple other individuals who also used this

moniker.

Officer Mendoza also testified about the appearance and meaning of Wilkerson’s

tattoos. For example, Wilkerson had a tattoo of a symbol the New Orleans Saints

professional football team used on their helmets. The “Saints” were one of the

aforementioned cliques within ETG. Like Dozier, Wilkerson had an “8” tattooed on his

left triceps and a “3” on right. His right rear triceps also bore the image of a cartoon

character with “ETG” on its torso. “[T]he significance of that is the Eight-Trey

Gangsters.” On his torso, Wilkerson had a tattoo of the text, “St. Andrews Park Gangster

Crip,” which was yet another clique within ETG. The “G” had a star in the middle of it

and an “8” to the left and a “3” to the right. According to Officer Mendoza, one of the

ways gang members “glorify their gang membership” was by using “gang stars.”

Wilkerson’s torso also bore a tattoo of a hand with money. Officer Mendoza explained

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this means, “He has money.” Finally, Wilkerson’s lower torso had, “ETG for Eight-Trey

Gangsters.”

Officer Mendoza further testified that Lannea White is “definitely” an associate of

ETG. He lacked reliable information showing she was a full member of the gang, but he

had “talked to her many times associating with members of [ETG].”

After establishing that Officer Mendoza had reviewed the reports regarding the

crimes charged in this case, the prosecutor proposed a hypothetical example in which

Officer Mendoza assumed defendants had committed the crimes as alleged. Officer

Mendoza responded that, in his opinion, the crimes would have been committed for the

benefit of ETG. Again speaking hypothetically, he explained a robbery committed in

Riverside County could still benefit a Los Angeles-based turf gang. To thrive and grow

by recruiting new members, a gang needs money, power and respect. “The easiest way to

do that quickly is through robberies.” Robberies create “quick fast money,” which

initially benefits the individual gang member. Sometimes gangs used money to buy

narcotics or weapons to commit more crimes. Robberies outside a gang’s claimed

territory also yield “instant power,” because the gang’s members “could go to the other

counties and commit crimes without fear of . . . other gang members, because it is a

powerful gang.” In addition, the individual member committing the robbery “gains

respect because [the crime] shows he’s committed to the gang lifestyle.” The whole gang

then benefits, since “young kid[s]” only want to be part of gangs that are powerful.

“Even if it doesn’t mean they bring any money to the gang, you can throw all of that out,

but without committing crimes and without showing that they’re powerful and a force to

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be reckoned with, the gangs would die because you could not recruit younger incorrigible

youths.” When asked if he could assume word of crimes outside a gang’s territory would

“get back to people that matter,” Officer Mendoza responded, “Of course.”

Officer Mendoza additionally stated using a gun in a crime outside of a gang’s

territory demonstrated how powerful that gang was. Gang members used guns “to rob

people or . . . to kill people.” Therefore, a gun gives a gang member “ultimate power.”

In Officer Mendoza’s opinion, leading police on an extended chase involving

multiple traffic violations will also benefit a gang. “[I]t is well-known that [gang

members] don’t fear the law.” Running from the police “is an obvious sign” of this lack

of fear. Therefore, this activity, “[o]f course,” enhances a gang’s reputation.

Officer Mendoza acknowledged that not every crime committed by a gang

member is a crime committed for the benefit of the gang. He similarly agreed that not

everyone who associated with gang members was also a gang member. Officer Mendoza

also admitted that Dozier and Wilkerson did not mention ETG during the El Toro and

One Stop crimes or demonstrate their gang membership by showing their tattoos,

displaying hand signs, or using graffiti. However, he emphasized his opinions about

gang affiliation were based on the totality of the circumstances, meaning there are “a lot

of different pieces of this puzzle.” In particular, “Tattoos are important.” For example, a

person with gang tattoos who associates with known gang members is highly likely to be

an active gang member. In addition, the combination of gang tattoos and a baseball hat

with a “T” on it is significant because members of ETG signify their gang membership

by wearing athletic apparel with the letters “E,” “T,” or “G.”

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 Although it was possible to leave a gang, Officer Mendoza testified this was not

common. In his experience, many people claim to have left their gangs but then continue

to associate with gang members. Officer Mendoza explained people who have actually

severed ties to a gang “completely disassociate themselves with the gang, they don’t hang

around with other gang members, and especially they don’t commit crimes with other

gang members of their particular gang.”

At the close of evidence, the People read into the record a stipulation they had

reached with defense counsel. As relevant to this appeal, the stipulation established that

officers found $211 in the pocket of Lannea White’s grey sweatshirt, $86 in Dozier’s

sock, and $582 in a black jacket in the back seat of the red Nissan. They also found a red

baseball hat with a white “W” on it in the rear passenger area of the car, and a black

baseball cap with a white “T” on it in the front passenger area.

Defense closing arguments focused on the theory that, even if defendants had gang

ties when they got their tattoos, no evidence proved they were still active members of the

gang when they committed the El Toro and One Stop crimes. The prosecutor’s rebuttal

noted there was no evidence either defendant had withdrawn from ETG. At one point,

the prosecutor asked, “When have they ever renounced the gang in their actions?”

Wilkerson interrupted with: “I will renounce the gang. My bad. Right now I will

renounce the gang. In the name of Jesus I will renounce. Right now in Jesus’ name.”

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 ANALYSIS

Defendants’ contentions about the sufficiency of the evidence at trial fail. For

reasons we provide in the first section post, substantial evidence supports Dozier’s

conviction for active participation in a criminal street gang, and the gang enhancements

as to both defendants. In the second section, we explain in what ways the judgment must

be modified with respect to certain sentencing terms other than the length of

imprisonment.

1. Sufficiency of the evidence: Standard of review

“In considering a challenge to the sufficiency of the evidence to support an

enhancement, 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.]” (People v.

Albillar (2010) 51 Cal.4th 47, 59-60; see also People v. Ochoa (2009) 179 Cal.App.4th

650, 657 [Fourth Dist., Div. Two] [same standard applies to conviction and

enhancement].)

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 To meet their burden of proof both that a defendant is an active member of a gang

and that a crime was committed for the benefit of a gang, the People may rely on

testimony from a gang expert. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048

[benefit to gang]; People v. Garcia (2007) 153 Cal.App.4th 1499, 1509-1510 [active

participation].) Gang experts may answer hypothetical questions based on the evidence

adduced at trial, even if these questions very closely track the events of the crimes

charged. (People v. Xue Vang (2011) 52 Cal.4th 1038, 1045.) A conviction for active

participation in a criminal street gang or a gang-based sentencing enhancement may not

rest solely on testimony from a gang expert. (People v. Ferraez (2003) 112 Cal.App.4th

925, 930-931 [conviction]; People v. Ochoa, supra, 179 Cal.App.4th at p. 657

[enhancement].) However, expert opinion that is properly supported by other evidence

may support a jury’s finding that a crime was gang-related. (Ferraez, at p. 931; cf.

People v. Ramon (2009) 175 Cal.App.4th 843, 850-852 [expert opinion not based on

extrinsic evidence too speculative and unreliable to support a judgment].)

a. Substantial evidence supports the finding that Dozier was an active

gang member

Section 186.22, subdivision (a), creates a substantive offense applicable to, “Any

person who actively participates in any criminal street gang with knowledge that its

members engage in or have engaged in a pattern of criminal gang activity, and who

willfully promotes, furthers, or assists in any felonious criminal conduct by members of

that gang.” To qualify as “active,” participation in a criminal street gang must be “more

than nominal or passive.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130; see also

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People v. Castenada (2000) 23 Cal.4th 743, 752.) Examples of factors indicating a

defendant is an active member of a gang include, without limitation: having extensive

knowledge of gang activities, admitting gang membership to police officers or others,

wearing gang colors or gang tattoos, and being in the company of gang members.

(People v. Garcia, supra, 153 Cal.App.4th at pp. 1510-1511 [listing cases].)

Ample evidence supports the finding that Dozier was an active gang member at

the time of the robberies and burglaries. During his more than one dozen contacts with

Officer Mendoza, Dozier had admitted being a member of ETG. Dozier had multiple

tattoos associated with ETG, and he had a gang moniker, “Lil Greedy.” In addition,

Dozier acted in conjunction with Lannea White, a known gang associate. He was also in

the company of Wilkerson, whom the jury found to have been acting for the benefit of

ETG in conjunction with the El Toro and One Stop crimes. Finally, Dozier committed

robberies and burglaries, which are among ETG’s signature crimes. Based on these items

of evidence, a reasonable jury could have concluded that Dozier’s participation in ETG

was “more than nominal or passive.” (People v. Rodriguez, supra, 55 Cal.4th at p. 1130.)

In attacking the evidence supporting his conviction for active participation in a

criminal street gang (§ 186.22, subd. (a)), Dozier argues, “Not being identified as a gang

member since 2007 is overwhelming evidence that Dozier was not an active gang

member when he committed the robberies” in 2011. However, he presents no authority

showing that recent entries in the law enforcement database are necessary to prove active

gang membership. Moreover, Dozier fails to account for Officer Mendoza’s testimony

that law enforcement cannot and does not purport to document every contact with a gang

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member. Contacts are less likely to appear in the database if the officer knows the gang

or the gang member well. Officer Mendoza had experienced many contacts with Dozier

and possessed particular expertise about ETG. Therefore, the jury could reasonably have

assigned little to no weight to the fact that the most recent entry documenting Dozier as a

gang member occurred years before the El Toro and One Stop robberies.

Dozier also accuses the People of requiring him to prove he had left ETG even

though a criminal defendant bears no burden of proof at trial. This is because in closing

arguments the prosecutor emphasized the absence of evidence that either Dozier or

Wilkerson had actually severed all ties to the gang. While we agree defendant did not

need to affirmatively prove anything essential to the People’s case in chief, we disagree

that is what the People were asking him to do.

Officer Mendoza admitted gang members may disassociate themselves from a

gang but indicated this was “not very common.” In his experience, members who had

actually left the gang “completely disassociate themselves with the gang, they don’t hang

around with other gang members, and especially they don’t commit crimes with other

gang members of their particular gang.” Dozier’s committing crimes with another

member of ETG is evidence he had not left the gang. In addition, Officer Mendoza’s

testimony about the way law enforcement documents contacts with gang members shows

that officers tend to stop documenting occurrences that are routine, such as contacts with

a familiar gang member. From this, the jury could reasonably infer that an occurrence as

uncommon as a complete disassociation with a gang would be documented. By pointing

to a lack of evidence of disassociation, then, the People were offering affirmative

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evidence of their own instead of demanding that Dozier produce anything to prove his

innocence.

The same reasoning defeats Dozier’s complaint that the People argued he “had not

disassociated himself from the gang because he had not removed his tattoos.” Setting

aside that we see no such argument in what the prosecutor said to the jury, we cannot

ignore that Dozier chose to get gang tattoos at some point before the El Toro and One

Stop crimes. According to Officer Mendoza, “Tattoos are important.” In this case,

Dozier’s tattoos substantiate his admission to Officer Mendoza that he was a member of

ETG as of 2007. As we just explained, the absence of evidence of Dozier’s

disassociation from the gang is evidence that he was still an active gang member when he

committed crimes with Wilkerson.

Finally, because one of the reasons Officer Mendoza opined that Dozier was an

active member of the gang is that he committed crimes with another active member,

Dozier attacks the evidence purportedly showing that Wilkerson was a member of ETG.

However, all he argues with specificity is that Officer Mendoza lacked foundation to

offer an opinion about Wilkerson’s status as a gang member and that the officer relied on

unreliable hearsay. At trial, Dozier did not object to Officer Mendoza’s testimony on

these grounds. He therefore forfeited any claim that Officer Mendoza’s testimony was

inadmissible because it lacked foundation or relied on hearsay. (Evid. Code, § 353, subd.

(a).)

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 If what Dozier argues is that Officer Mendoza’s opinion about Wilkerson’s active

membership in ETG was admissible but too unreliable to count as substantial evidence

supporting the verdict, we reject his assertion on the merits. First, Wilkerson’s

renunciation of the gang in open court informed the jury he was, in fact, an active gang

member, since otherwise he would have nothing to renounce. Second, Officer Mendoza

was adamant that his opinion about Wilkerson’s status in the gang was based on the

totality of the circumstances, which included more than just the information the officer

learned from others. Moreover, Dozier attacks Officer Mendoza’s reliance on statements

made by another police officer about what gang contacts told him, but he ignores

testimony that Officer Mendoza also personally asked two other gang members about

Wilkerson. Even if it was somehow problematic for Officer Mendoza to rely on multiple

layers of hearsay, Dozier does not explain why an expert on ETG could not rely on

information he received directly from members of the gang. (See, e.g., People v.

Gardeley (1996) 14 Cal.4th 605, 618 [experts may rely on inadmissible material in

forming opinions, “so long as it is material of a type that is reasonably relied upon by

experts in the particular field in forming their opinions”].)

In any event, even if Officer Mendoza’s opinion that Wilkerson was an active

gang member was somehow unreliable, Dozier offers no reason why his testimony about

Lannea White’s connection to ETG was similarly flawed. He does not explain why the

jury could not have found Dozier was an active gang member because he had gang

tattoos and committed a signature crime of ETG after a known associate of that gang

entered El Toro and left without speaking to anyone or buying anything.

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 For these reasons, substantial evidence supports the finding that Dozier was an

active member of ETG at the time of the El Toro and One Stop crimes. Dozier makes no

other contentions regarding his conviction for active participation in a criminal street

gang (§ 186.22, subd. (a)), so we affirm that portion of the judgment.

b. Substantial evidence supports the findings that Dozier and

Wilkerson committed crimes for the benefit of ETG with the

specific intent to promote criminal conduct by gang members

Unlike subdivision (a) of section 186.22, which creates a substantive offense,

subdivision (b) of the same statute creates a sentencing enhancement. “This portion of

section 186.22 requires proof of only two elements: (1) that the defendant committed a

felony for the benefit of, at the direction of, or in association with any criminal street

gang; and (2) that he did so with the intent to promote, further, or assist in criminal

conduct by gang members.” (People v. Mejia (2012) 211 Cal.App.4th 586, 613.) The

People need not also prove the defendant specifically intended to promote, further, or

assist a gang. (Ibid.) Although “[n]ot every crime committed by gang members is

related to a gang” (People v. Albillar, supra, 51 Cal.4th at p. 60), “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 defendant had the specific intent to

promote, further, or assist criminal conduct by those gang members.” (Id. at p. 68.)

In this case, the jury received ample evidence connecting the El Toro and One

Stop crimes to ETG. First, and as already discussed, substantial evidence supports the

conclusion that defendants were both active gang members when the El Toro and One

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Stop crimes took place. Although neither Wilkerson nor Dozier said the name of ETG,

showed their tattoos, or used the gang’s hand signs while they committed the El Toro and

One Stop crimes, Wilkerson wore a baseball cap with a “T” on it during both sets of

offenses. According to Officer Mendoza, this clothing choice connoted an association

with ETG, which prefers athletic apparel bearing the letters, “E,” “T,” or “G.” To a

person in the know, the commission of one of ETG’s signature crimes by someone

wearing athletic apparel marked with a “T” would have amply communicated an

association with the gang.

Second, robbery is one of the signature crimes of ETG. In addition to potentially

giving the gang money to spend on drugs and guns, the commission of an extra-territorial

robbery increased the gang’s power and respect. That a gang member used a gun further

increased the gang’s power and respect, which in turn furthers the extent to which

“incorrigible youths” looking for a gang to join would find ETG an attractive option.

Even the high-speed chase that followed the El Toro and One Stop crimes helps

support the jury’s gang findings. As Officer Mendoza explained, “it is well-known that

[gang members] don’t fear the law.” The high-speed chase, which required the use of

stop sticks and a police helicopter, demonstrates fearlessness. Dozier’s act of calmly

telling the El Toro cashier not to move as he left the store demonstrates the same thing.

Engaging in actions that communicate a lack of fear of the police helps enhance a gang’s

reputation, which then helps a gang recruit new members.

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 Finally, the apparent distribution of the proceeds from the El Toro and One Stop

crimes is highly significant. Officer Mendoza gave specific ways in which robberies

benefit both individual gang members and the gang as a whole. As he explained, money

from a robbery instantly benefits the individual gang members who committed the crime,

but it also may be used to buy a gang’s “tools of the trade,” which are narcotics and

weapons. Here, defendants were each in possession of cash when the arrests occurred.

This is unsurprising, as gang members often share the proceeds of robberies with each

other. What is particularly significant in this case is that White, who did not personally

commit any of the crimes, nevertheless had $211 in the pocket of her sweatshirt. This

amount is more than double the $86 found in Dozier’s sock. The jury could reasonably

have concluded that the money White possessed was earmarked for use by the gang,

since there was no reason for her to receive funds as a reward for crimes she did not

commit.

In each of these ways, substantial evidence supports the finding that defendants

committed the El Toro and One Stop crimes for the benefit of ETG. As we have

illustrated, specific facts support Officer Mendoza’s opinion that the crimes were gang-

related. (Cf. In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [gang expert must rely on

facts and may not “simply inform[]” the trier of fact of his or her belief about the

presence or absence of essential elements of a gang enhancement].)

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 Defendants argue no evidence ties the El Toro and One Stop crimes to ETG

because their tattoos were covered when the crimes occurred. Also, they note the People

presented no evidence that either Dozier or Wilkerson flashed gang hand signs or marked

anything with gang graffiti. What defendants do not do is offer authority requiring any of

these behaviors to be present before a crime can be deemed gang-related. As we have

already explained, other evidence linking the El Toro and One Stop crimes to ETG is

sufficient to support the judgment.

Moreover, even if the People were required to produce evidence that defendants

gave visual clues linking their actions to ETG while the crimes were occurring, they

successfully did so. As we have already indicated, Wilkerson’s black hat, which bore a

white “T,” implied an association with ETG.

Defendants also attempt to make much of the fact that ETG is based in Los

Angeles, but the El Toro and One Stop crimes occurred in Riverside County. They assert

the People failed to prove how word of the crimes could have reached interested parties

on the gang’s home turf. However, reputation is not the only benefit ETG could have

received from the robberies and burglaries. As we previously discussed, White’s

possession of money that appears to have come from the El Toro and One Stop crimes

also provides a benefit to the gang. Even if White’s money did not benefit ETG in this

case, the focus on the location of the crimes is misplaced. “Here defendant[s], . . .

admitted gang member[s] sporting gang tattoos, actually committed the robber[ies] with a

gang confederate. That [they were] not in [their] gang’s territory, by itself, does not

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necessarily overcome the other supporting evidence.” (People v. Martinez (2008) 158

Cal.App.4th 1324, 1333.)

Dozier’s final contention is that the splitting of money between himself, Wilkerson

and White proves the crimes were committed for personal gain rather than in an effort to

benefit ETG. We view the same fact differently. A discussed ante, the way in which

Dozier, White and Wilkerson distributed funds between them helps show some of the

money was intended to benefit the gang.

2 Corrections are needed with respect to the imposition of fines and other

terms of sentencing not pertaining to imprisonment

Wilkerson argues the restitution fine must be reduced from $240 to $200 because

the trial court indicated an intention to impose the lesser amount but erroneously thought

it only had discretion to impose the latter. In addition, Wilkerson asserts the lifetime ban

on ownership or possession of deadly weapons and “related paraphernalia” is

unauthorized for reasons we discuss post. His final request is that we modify the abstract

of judgment to reflect the striking of the prison term imposed in conjunction with

Wilkerson’s conviction for active participation in a criminal street gang (§ 486.22, subd.

(a).)

The People concede the trial court erred in the latter three respects. They also

agree Dozier’s restitution fine should be reduced from $240 to $200 even though he made

no such argument in his opening brief. We accept these concessions and find merit in

Wilkerson’s arguments about the restitution fine, lifetime ban on possession or ownership

of deadly weapons or related paraphernalia, and inclusion of a six-year sentence on the

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active participation count (§ 186.22, subd. (a)). As we explain post, we will therefore

direct the judgment modified in these respects.

a. Defendants’ restitution fines must be reduced to $200

Section 1202.4, subdivision (b), requires the trial court to impose a restitution fine

on every defendant who is convicted. Although the amount of the fine rests in the court’s

discretion, the minimum fine available as of January 1, 2012, was $240. (§ 1202.4, subd.

(b)(1).) At the time of the 2011 El Toro and One Stop crimes, however, the minimum

fine was $200. (Former § 1202.4, subd. (b)(1), as amended by Stats. 2010, ch. 351, § 9

[effective Sept. 27, 2010].) The trial court stated it intended to impose the “minimum”

but erroneously thought that figure was $240. The People concede the increased amount

that became effective in 2012 cannot be applied retroactively due to ex post facto

principles. (See People v. Hanson (2000) 23 Cal.4th 355, 360-362 [restitution fine is

punitive]; Tapia v. Super. Ct. (1991) 53 Cal.3d 282, 298 [punitive measures may not be

applied retrospectively].)

We will direct the trial court to reduce Wilkerson’s restitution fine from $200 to

match the trial court’s intention to impose only the minimum restitution fine. Because

the People concede Dozier’s restitution fine is also erroneously high, we will direct it be

reduced from $240 to $200, as well.

b. The ban on possession of deadly weapons or paraphernalia was

unauthorized

The minute order from Wilkerson’s sentencing hearing prohibits him from

possessing, for life, “any firearm, deadly weapon, ammunition or related paraphernalia.”

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As supporting authority, the minute order cites section 12021, which has been replaced

by section 29800, subdivision (a). (See People v. Correa (2012) 54 Cal.4th 331, 334, fn.

1.) The People concede subdivision (a) of section 29800 only prohibits a felon from

possessing “any firearm,” such that prohibiting possession of any “deadly weapon” or

“related paraphernalia” is beyond the scope of the court’s authority. We therefore will

direct the trial court to delete the prohibition on these two items from Wilkerson’s

sentence, and to issue a new minute order reflecting the change.

c. Wilkerson’s abstract of judgment erroneously imposes a term of

imprisonment that was stricken

As indicated ante, the trial court imposed a six-year term of imprisonment in

conjunction with Wilkerson’s conviction for active participation in a criminal street gang

(§ 186.22, subd. (a); count 7). However, it then explicitly struck that term. Nevertheless,

Wilkerson’s abstract of judgment shows a six-year sentence was imposed. We will direct

the trial court to correct the abstract of judgment to reflect the striking of this sentence.

DISPOSITION

The trial court is directed to reduce the restitution fines of both defendants from

$240 to $200, to strike terms related to possession of deadly weapons and related

paraphernalia from Wilkerson’s sentence, to issue a minute order reflecting the striking

of these items, and to modify Wilkerson’s abstract of judgment to remove the term of

imprisonment that was imposed but stricken on count 7 for active participation in a

criminal street gang. The trial court is also directed to forward a modified abstract of

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judgment to the Department of Corrections and Rehabilitation. In all other respects, the

judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.

We concur:

McKINSTER
J.

MILLER
J.

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