P. v. Cervantes



P. v. Cervantes


Filed 9/10/08 P. v. Cervantes CA4/3


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE



THE PEOPLE,


Plaintiff and Respondent,


v.


PEDRO CERVANTES,


Defendant and Appellant.



G038889


(Super. Ct. No. 07NF0474)


O P I N I O N



Appeal from a judgment of the Superior Court of Orange County, Richard W. Luesebrink. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI.,  6 of the Cal. Const.) Affirmed.


Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.


Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Garrett Beaumont, and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.


* * *


Pedro Cervantes appeals from a judgment of conviction of possession of methamphetamine, a lesser included offense of possession of methamphetamine for sale, active participation in a criminal street gang, and resisting arrest. The information also alleged that Cervantes committed the crime of possession of methamphetamine for sale for the benefit of, at the direction of, or in association with [the Plas] criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. (See Pen. Code,  186.22, subd. (b).)[1] However, the jury found Cervantes not guilty of possession for sale and found not true the related enhancement allegation.


The trial court denied Cervantes motion for judgment notwithstanding the verdict on the street terrorism conviction and his alternate request for a reduction of the felony conviction to a misdemeanor under section 17, subdivision (b). The court struck two sentence enhancement allegations for sentencing purposes and imposed a total prison term of six years and four months.


Cervantes contends the trial court abused its discretion by denying his pretrial motion to exclude the prosecutions gang experts testimony without first conducting an Evidence Code section 402 hearing. Specifically, he contends the experts opinion testimony that one of the primary activities of the Plas criminal street gang is the commission of certain statutorily enumerated felonies, as required under section 186.22, subdivision (e), was admitted without adequate foundation. He also challenges the sufficiency of the evidence to support the street terrorism conviction.


We find both contentions meritless. Based on the Peoples theory of the case, gang expert testimony was relevant to the charges and the gang enhancement. The trial court reviewed the transcript from the preliminary hearing before ruling on Cervantes pretrial motion, and the experts preliminary hearing testimony amply established both his qualifications and laid an adequate foundation for presentation of gang-related evidence to the jury. Moreover, the experts trial testimony established that the Plas gang fits the statutory definition of a criminal street gang and also proved Cervantes active participation in that gang, irrespective of the jurys ultimate determination that he possessed methamphetamine for his personal use and not for sale. Consequently, we affirm the judgment.


I


FACTS


On February 3, 2007, at about 9:00 p.m., Placentia Police Officer Chris Anderson saw Cervantes walking along the 200 block of Santa Fe Avenue in Placentia. The officer recognized Cervantes from numerous prior contacts with him. When the two made eye contact, Cervantes turned around and ran away. The officer followed Cervantes in a marked patrol car and yelled at him to stop. Cervantes kept running and turned down an alley walkway. Anderson saw him pitch an object on the ground, then slow down to a walk and turn back toward Santa Fe Avenue. Cervantes did not stop walking until Anderson got out of his car and started after him. Andersons pat-down search of Cervantes person yielded $22.65 and a cell phone.


When backup officers arrived at the scene, Anderson returned to the alley where he had seen Cervantes drop something. He found a bag similar to a white plastic grocery bag rolled into a ball and lying to one side of the alley. Anderson opened the item and found four Ziploc baggies inside it. Each Ziploc baggie contained quantities of a substance Anderson recognized as methamphetamine. The individual baggies were later weighed: two baggies contained approximately 0.40 gram of methamphetamine, a third contained approximately 0.60 gram, and the fourth baggie contained approximately 0.70 gram of the drug. The two baggies containing approximately 0.40 gram of methamphetamine were made from a clear blue plastic. The other two baggies, the two containing 0.60 and 0.70 gram, respectively, were made from clear plastic. Cervantes was arrested for possession of methamphetamine and taken into custody.


On February 6, 2007, the Orange County District Attorneys Office filed a three-count felony complaint, charging Cervantes with possession of methamphetamine for sale (Health & Saf. Code,  11378), misdemeanor resisting arrest ( 148, subd. (a)(1)), and street terrorism ( 186.22, subd. (a)). An amended complaint added a prior prison term enhancement ( 667.5, subd. (b)), and an enhancement for a prior serious felony conviction under the Three Strikes law.


Preliminary Hearing Testimony


Anderson testified at the preliminary hearing and recounted the circumstances of Cervantes arrest. He said that he recognized Cervantes and knew that he had recently been in prison. Anderson also described Cervantes myriad tattoos. According to Anderson, Cervantes has the word Placero tattooed on his chest, the word Cykos on his back, and Placentia on his neck. The letter O adorns his left arm, and he has the words Santa Fe Street, RIP, Happy, Cartoon, Pryo, and the letter C tattooed on his right arm with P13 tattooed on his right wrist.


Placentia Police Detective Angel testified as the Peoples narcotics expert. In Angels opinion, Cervantes possessed methamphetamine for sale. He based this opinion on the fact that Cervantes possessed methamphetamine in individual baggies of varying colors and weights. Angel considered the fact that Cervantes had the methamphetamine in colored baggies to be of particular importance. In his experience, drug dealers use a type of color-coding system wherein a certain color baggie corresponds to a certain weight of the drug. Moreover, Angel did not find the absence of certain other indicia of drug sales, namely scales, pay-owe sheets, or a large amount of cash, to be determinative of Cervantes intent. Although Angel admitted that a heavy user of methamphetamine could ingest as much as 5 grams a week, and that it would not be uncommon for a user to possess his or her stash in individual bags, he maintained that Cervantes possessed approximately 2.1 grams of methamphetamine for the purpose of sale.


Placentia Police Detective Adam Gloe testified as the Peoples gang expert. In February 2007, he was assigned to the Gang Unit of Placentias Special Enforcement Detail. As such, his duties included investigating gang-related crimes, identifying and contacting gang members and associates, maintaining gang intelligence records, identifying gang members. conducting probation and parole searches of persons and residences associated with gang activity, drafting search warrant affidavits in gang-related cases, and searching for indicia of gang activity. In 1988-1991 and 1997-1999, Gloe participated in the Explorer and Police Cadet programs at the Placentia Police Department. As a cadet, Gloe rode with on-duty officers on patrol. They told him about the different gangs in Placentia and where each gang congregated or claimed turf. Gloe attended the Fullerton College Reserve Academy in 1993 and the Rio Hondo Police Academy in 1998. In each academy, Gloe received eight hours of training on criminal street gangs, which included how to identify gang members, the interpretation of gang graffiti and slang, and an explanation of the gang subculture.


After graduation, Gloe was hired by the City of Placentia, and part of his field training included familiarization with Placentias gangs and gang members. In 2006, he attended a 24-hour seminar at the Orange County Sheriffs Academy, where he learned about the different types of gangs, identification and investigation techniques, and the various gang-related crimes and enhancement provisions included in the Penal Code. He also attended a separate eight-hour course on how to draft search warrant affidavits. Since that time, Gloe has attended various seminars, read several books and articles, and been involved in training other police officers on the subject of criminal street gangs. He is a member of both the California Gang Investigator Association and the Orange County Gang Investigative Association, and he attends regular meetings and seminars sponsored by both organizations. These groups also maintain websites dedicated to compiling information about criminal street gangs, which Gloe visits with some frequency. In addition, Gloe attended seminars sponsored by the California Narcotics Officers Association, which included information on how criminal street gangs are involved in the narcotics trade, and Gloe estimated that he had been involved in a total of approximately 75 gang-related investigations. These investigations covered all types of crimes, including vandalism, curfew violations, car jackings, assaults with deadly weapons, attempted murder, murder, grand theft, auto theft, burglary, in addition to possession of narcotics for sale.


Through education, discussions with other law enforcement officers, and contact with gang members, Gloe has learned the culture of criminal street gangs, the reasons most people join gangs, where members of various gangs tend to congregate, and the importance of tattoos. In Gloes experience, gang members are very proud of their tattoos, and their tattoos serve as a form of communication, a means of intimidation, and a way to record an individuals crimes or life history. Gloe testified that he has seen the letters P-L-A-S, an abbreviation for Placentia, on numerous Plas gang members, although they quite often also have the entire word tattooed somewhere on their bodies. The letter P or P13 is another common tattoo with members of Hispanic street gangs in Southern California, as are Placero and PVL, which is an abbreviation for Plas Vacos Locos. Many gang members have the simple three-dot tattoo that signifies, My crazy life. The number 13 can also signify membership in one of Southern Californias Hispanic street gangs, and a tattoo of the letters OC usually refers to Orange County. The letters OC when accompanied by a star tattoo generally means the person has served time in the Orange County jail. Gloe was also aware of prison-related tattoos that would indicate where a particular gang member has been incarcerated. The letter M, or letters MA, or a tattooed black hand can represent a personal affiliation with the Mexican Mafia.


Gloe testified that Cervantes had numerous prior contacts with law enforcement officers. He testified to the various tattoos Cervantes had on his chest, neck, back, and arms. He explained that the R.I.P. tattoo on Cervantes arm is an homage to two Plas gang members that had been killed in gang shootings or some other gang-related crime. Further, Gloe stated that tattoos can be a sign of commitment to a particular gang.


Gloe defined a criminal street gang as any ongoing organization, group or association consisting of three or more members . . . formal or informal, whose members as one of their primary activities is to commit one of the crimes listed within [section] 186.22(e) . . . . He explained the concepts of claiming a gang, being down for a gang, being jumped in to a gang, and gang turf. He testified that false claims of gang membership result in the person being checked or assaulted. In his experience, no one falsely claims gang membership.


Respect is very important in gang culture, and violence erupts if a rival gang member or an individual in the community acts disrespectfully. The commission of violent crimes is the major way for individual gang members and gangs as a whole to gain respect, and gangs use violence as a form of intimidation. Gloe testified, There is no better way for a gang to gain respect from another gang and cause fear in a community than by killing somebody. Moreover, street gangs are involved in drug trafficking, which is a way for gang members to purchase more drugs, weapons, and alcohol. He also asserted that non-gang members who tried to sell drugs on a gangs turf would be dealt with.


Gloe testified that he is familiar with the Plas gang. He stated that the Plas gang claims a specific area of Placentia that includes Santa Fe Avenue and the location of the instant offense, although they also maintain a satellite turf area in the Garnet area of Fullerton. According to Gloe, the Plas gang formed in the 1920s, and as of February 3, 2007, this gang had approximately 150 members. Members of Plas have committed murder, attempted murder, robbery, grand theft, auto theft, assault with a deadly weapon, burglary, felony vandalism, and terrorist threats, and Gloe testified that one of the primary activities of the Plas gang is the commission of these crimes and others listed in section 186.22, subdivision (e).


Gloe testified that Victor Gonzalez, an active participant in the Plas gang, pled guilty to auto theft in 2004 and admitted the crime was gang related. He also testified that Cervantes had pled guilty to possession of a concealed firearm in 2003, which he admitted was committed for the benefit of the Plas gang. Cervantes has admitted being a member of the Plas gang to law enforcement officers, and he told one officer that he had been jumped in to the gang during the mid-1990s. During the past 12 years, Cervantes has had numerous contacts with law enforcement officers. Gloe reviewed approximately 30 field interview cards for Cervantes generated during this time period, and he had seen numerous photographs of Cervantes with other Plas gang members. He was registered as a gang member in 2002, and he has received a STEP notice. Although the most recent field interview card was dated April 8, 2003, Cervantes cell phone listed several known Plas gang members by their gang monikers.


Based on the facts of Cervantes prior court case and Gloes knowledge of his current case, Gloe opined that Cervantes was an active participant in the Plas gang on February 3, 2007. He also testified that Cervantes lived in San Bernardino and not in the area where he was arrested, but that it would not be unusual for a gang member to purposefully enter gang turf to commit a crime. Gloe also relied on Cervantes arrest record, manner of dress, shaved head haircut, tattoos, and numerous prior contacts with other Plas gang members to form his opinion. Gloe explained that selling narcotics could enhance Cervantes reputation in the gang, as would his decision to resist arrest. Gloe also opined that committing the current crime demonstrated Cervantes active gang participation, and that the current crime benefitted the Plas gang because gang members under the influence of controlled substances are more likely to commit crimes and have cash for the purchase of weapons.


Gloe summarized four ways an individual could be initiated into a criminal street gang: A person can be (1) walked in, which occurs when the individual has family members already in the gang or has grown up in the area the gang claims as its turf and is trusted by current gang members, (2) jumped in, which means enduring a beating by several gang members to prove ones dedication and commitment, (3) crimed in, which is the commission of a crime at the gangs direction and for the gangs benefit, and (4) sexed in, which is a term used for female initiates who attain membership by allowing several gang members to have sexual intercourse with them. Gloe explained that gang members can disassociate from a gang by being jumped out, the reverse of being jumped in, or by moving out of the gangs turf. Nothing Gloe was aware of indicated that Cervantes had extricated himself from the Plas gang.


On cross-examination, Gloe admitted that Plas gang members probably spend a lot of their time doing ordinary activities, probably more time on ordinary activities than they do committing various types of crimes. Further, he agreed that gang members may commit crimes for their own benefit.


The magistrate denied defense counsels motion to strike Gloes preliminary hearing testimony. The court further concluded that the People presented sufficient evidence on all counts to proceed to trial. In March 2007, the Orange County District Attorneys Office filed a three-count felony complaint, charging Cervantes with possession of methamphetamine for sale (Health & Saf. Code,  11378, count 1), street terrorism ( 186.22, subd. (a), count 2), and misdemeanor resisting arrest ( 148, subd. (a)(1), count 3). The information further alleged Cervantes committed count 1 for the benefit of, at the direction of, and in association with the Plas criminal street gang ( 186.22, subd. (b)(1)), and that he had a prior serious felony conviction ( 667, subd. (a)(1), a strike prior pursuant to the Three Strikes law ( 667, subds. (b)-(i)), and had served a prior prison term ( 667.5, subd. (b)).


Cervantes did not file a section 995 motion to set aside the information. However, he did file a pretrial motion to exclude Gloes expert testimony. Citing Gloes preliminary hearing testimony, Cervantes contended there was an inadequate foundation for Gloes opinion that he possessed methamphetamine for sale, or that his possession of methamphetamine was for the benefit of the Plas gang. Cervantes requested an Evidence Code section 402 hearing with live testimony from Detective Gloe for the court to determine the admissibility of his opinions before they are presented to the jury. Counsel also moved to bifurcate the street terrorism count from the other charges. The court denied both motions. Defense counsel then made a secondary request that evidence of the gangs primary activities be sanitized. Counsel stated, Rather than murder, and rapes, and carjacks coming in, perhaps we could leave that as crimes enumerated under [section] 186.22(e). The court declined to rule on this request, stating that the issue would be discussed the following day.


The next day, defense counsel again moved to exclude the entirety of Gloes testimony, relying on Evidence Code section 352 and People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran).[2] The court acknowledged counsels argument and stated that it had read the preliminary hearing transcript, the defense motion, and the authorities on which counsel relied. Consistent with the Albarran opinion, the court ruled inadmissible any references to gang-related threats against police, the Mexican Mafia, or descriptions of other crimes committed by other gang members beyond the minimum required by section 186.22, subdivision (e). The court also excluded evidence of Cervantes prior serious felony conviction for carrying a concealed weapon.


The court concluded that Gloe was qualified to testify as a gang expert. When defense counsel continued to argue that Gloes preliminary examination testimony was insufficient to prove that Cervantes crimes were gang motivated, the court responded, Objection noted and overruled. Counsel repeated his request for an evidentiary hearing, and the court responded, That request will be denied. He testified extensively at the preliminary hearing, and I think that Judge Rogue had properly perceived his testimony, and [the] same will happen here.


Trial Testimony


At trial, Gloe again established his expertise on the subject of criminal street gangs in Placentia. After defining the term criminal street gang for the jury by reciting section 186.22, subdivision (e), Gloe testified that there were three gangs within the city of Placentia, including the Plas gang. He explained that the Plas gang originated in the early 1920s, evolving from a group of disaffected members of the Hispanic community into an organization whose primary activity is the commission of various crimes, anywhere from vandalism up to murder. He explained that Plas is a typical Hispanic street gang in that it has identifying colors (blue and black), uses common symbols (such as the letter P and P13), and claims a specific area of Placentia as its turf.


Gloe testified that street gangs generally commit certain types of crimes on their own turf, like selling narcotics, while other types of crimes, namely drive-by shootings, most often occur on turf belonging to other, rival gangs. He stated that narcotics trafficking is the biggest fundraiser for Hispanic street gangs in Southern California, and that an individual gangs control over their own turf allows them the exclusive right to sell narcotics within their gang neighborhoods. And if somebody that is not part of a gang attempts to sell drugs in their neighborhood, they will be dealt with.


Gloe stated that as of February 3, 2007, Plas had approximately 150 active members. He testified that the primary activity of the gang is the commission of crimes, including vandalism, or more specifically graffiti, and assault and battery, attempted murder, and narcotics possession and sales. He also explained that the Plas gang considers Santa Fe Street to be part of its turf, which includes the 200 block of Santa Fe Street where Cervantes was arrested. As required by statute, Gloe testified that Plas gang member Victor Gonzalez pled guilty to auto theft and admitted the crime was committed for the benefit of the Plas gang in April 2007.


Gloe stated that he was familiar with Cervantes through his work in Placentias gang unit and that Cervantes name is one of the names that I have heard quite frequently . . . . In preparation for trial, Gloe reviewed Cervantes booking photograph, field interview cards, and various police reports that had been generated as a result of Cervantes contacts with law enforcement. He explained the nature and purpose of field interview cards, and testified that Cervantes had 30 of these cards on file. Gloe further described Cervantes numerous tattoos, explaining that one of them, the word Cykos, referred to Los Cykos, which is a clique within the Plas gang. He also explained that two of Cervantes tattoos, the words Happy and Cartoon, were references to two murdered Plas gang members.


In Gloes opinion, Cervantes was an active participant in the Plas gang. He based his opinion on Cervantes numerous contacts with law enforcement, generally while he was in the company of other Plas gang members, his manner of dress, hairstyle, and tattoos, and on the fact that Cervantes had claimed to be a Plas gang member on several occasions. The prosecutor then asked the following hypothetical question: We have an individual who has gang tattoos throughout his body. Hes got repeated contacts with other known gang members. Hes in a specific gang territory. On that occasion hes possessing four separate baggies of methamphetamine, two of the baggies weighing 0.40 grams, one of the baggies weighing 0.60 grams, and one of the baggies weighing 0.70 grams. Based on well, and taking into account that those bags are possessed for the purposes of sales, based on those facts, do you have an opinion as to whether or not the defendant possessed them for the benefit of the gang? Gloe responded, Yes. It is my opinion, based on that hypothetical, that the person possessed the drugs for the benefit of the street gang.


Gloe explained that he based his opinion on the fact that in the prosecutors hypothetical an active gang member possessed individually packaged narcotics within his own gangs turf, and because street gangs commonly sell narcotics to fund other activities such as purchasing weapons. Gloe further testified, Gangs are in business to commit crimes. They have a turf that they feel is theirs and nobody elses. They have an area that they feel that they control, and a way to maintain control over that neighborhood is to intimidate the community. [] You intimidate the community by committing crimes. The more violent, the better. By being menacing, walking around in groups, essentially patrolling the neighborhood, and when the community members feel intimidated by the group . . . it makes them afraid to report the activities of the gang to the police. It makes them frightened. He also testified that only a gang member can sell drugs within that gangs territory . . . and hes also enhancing his own reputation by selling drugs thus committing a felony for the benefit of the gang.


On cross-examination, Gloe admitted he had no evidence that other members of the Plas gang were aware of Cervantes activities, or that proceeds from his activities were distributed to other gang members. He further admitted that Cervantes many tattoos were covered by his clothing at the time of his arrest, and that this clothing did not specifically promote the Plas gang. Gloe also conceded the possibility that individual gang members may commit crimes for personal reasons and not for their gangs benefit.


Detective Angel testified as the prosecutions drug expert at trial. In his opinion, again based on a hypothetical question, a gang member in his gangs territory with multiple baggies of methamphetamine would possess that drug for the purpose of sales. He based his opinion just on the fact that the drugs [were] separated in four different bags and two different weights with different colored baggies, and the fact [that the] persons a gang member in his gang neighborhood . . . . Angel acknowledged that Cervantes had been arrested without other common indicia of drug sales, for instance a scale, large amounts of cash, and packaging materials, but he did not find the absence of these items to be determinative in forming his opinion. As he stated, a gang member in his gangs neighborhood would probably have easy access to scales at a number of different residences in the area. Further, he noted that Cervantes did not possess any drug paraphernalia at the time of his arrest and therefore he had no means of ingesting the drug himself. In Detective Angels opinion, Cervantes possessed approximately $120 worth of methamphetamine, and that the amount possessed was more than a typical user would ingest in one day.


Steven Strong, a licensed private investigator and former Los Angeles Police Officer, testified as Cervantes expert witness on narcotics and street gangs. He testified that the average methamphetamine user could easily go through two or more grams a day, depending on their habit. In Strongs opinion, Cervantes possessed methamphetamine for personal use, and he based his opinion on the absence of any observed sales activity, large amounts of cash, pay-owe sheets, extra packaging materials, or scales, and the relatively small amount of drugs possessed. He disputed Gloes statement that gang members sell drugs to benefit the gang. Strong testified, I have yet to come across a gang member that sells drugs for the gang. They all tend to sell it for their own personal gain, whether its to make cell phone payments, pay rent, buy food, support kids. Its an avenue of making money that they use. Its easy. They make a lot of money at one time, they dont tend to share it. [] Ive never found any evidence of them going back and turning it over to one person and it being distributed. He also disputed the notion that drug use was encouraged by street gangs, stating that someone being hooked on drugs or selling drugs to a gang member doesnt really benefit the gang.


On rebuttal, Detective Gloe disputed Strongs opinion that gangs discourage drug use, and he asserted that beyond the financial benefits of drug sales, gangs benefitted by using drug sales to control their turf. He further testified that he had personally arrested several gang members in Plas for possession of drugs, being under the influence of drugs, possession of drug paraphernalia . . . . Drug use is rampant within the Plas street gang. However, he again conceded that the only evidence of possession for the purpose of sale was his opinion based on my training and experience.


After deliberating for approximately three hours, the jury found Cervantes not guilty of possession of methamphetamine for sale and found not true the related gang enhancement. Cervantes was convicted of the lesser included offense of possession of methamphetamine, street terrorism, and resisting arrest.


II


DISCUSSION


Foundation for Gang Expert Testimony


Cervantes contends the trial court abused its discretion by denying his pretrial motion to exclude Gloes testimony. Pointing to the jurys not true finding on the gang enhancement, he argues the court incorrectly found Gloes preliminary hearing testimony established a sufficient foundation for admission of his expert testimony at trial, and that his testimony failed to demonstrate that one of the primary activities of the Plas gang is the commission of certain statutorily enumerated crimes. We disagree with both contentions.


The qualification of expert witnesses, including foundational requirements, rests in the sound discretion of the trial court. [Citations.] That discretion is necessarily broad: The competency of an expert is in every case a relative one, i.e. relative to the topic about which the person is asked to make his statement. [Citation.] Absent a manifest abuse, the courts determination will not be disturbed on appeal. [Citations.] (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) We find no abuse of discretion here.


Section 186.22, subdivision (f) provides, As used in this chapter, criminal street gang means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. Subdivision (e) of section 186.22 lists 33 crimes, including murder, attempted murder, assault with a deadly weapon, various crimes involving guns, burglary, robbery, rape, money laundering, mayhem, torture, vandalism, and carjacking.


At the preliminary hearing, Gloe testified that the members of the Plas gang had committed murder, attempted murder, grand theft, auto theft, assault with a deadly weapon, burglary, felony vandalism, [and] terrorist threats . . . . This testimony was based on Gloes experience in his departments special gang enforcement detail, which included his personal involvement in the investigation of approximately 75 gang-related crimes, multiple contacts with gang members, constant review of field interview cards, frequent execution of search warrants and warrantless probation searches, and his discussions with other police officers working in his gang unit. Moreover, Gloe identified two specific crimes committed by Plas gang members, an auto theft and Cervantes own prior conviction for possession of a concealed weapon, and both of these crimes had sustained gang enhancements associated with them.


Cervantes complains that Gloe seemed to confuse the definition of primary activities with the predicate acts required to prove 186.22, subdivision (e)s pattern of criminal gang activity. Although the record somewhat supports this assertion, section 186.22, subdivisions (e) and (f) are inextricably intertwined. The People must first prove the existence of a criminal street gang, as the statute defines that term, and that requires reference to both subdivisions. We find Gloes somewhat muddled reference to these related terms insignificant in light of his training and experience.


Cervantes also contends Gloes testimony was nothing more than a series of unsupported conclusions. He suggests that Gloes recitation of various crime statistics was meaningless without testimony relating to specific crimes committed by Plas gang members. However, there is no requirement that gang experts provide exhaustive detail when establishing the various elements under section 186.22 in general, or when proving the primary activities element of section 186.22, subdivision (f) in particular. (See People v. Gardeley (1996) 14 Cal.4th 605, 619-620; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1370-1371.)


Furthermore, it could be argued that the evidence Cervantes demands on appeal is the very type of evidence trial counsel generally seeks to exclude as unduly prejudicial. As the Albarran court observed, expert testimony detailing multiple gang-related crimes involving gang members other than the defendant could be highly inflammatory and cause undue prejudice. (Albarran, supra, 149 Cal.App.4th at pp. 227-228 [expert testified at length about the identities of 13 other gang members, described a specific threat the gang had made against police officers, and made references to the Mexican Mafia].)


Gloe testified from both his personal experience with the Plas gang and from information he had received from other Placentia police officers, Plas gang members, and individuals living in the area Plas claims as its turf. He did not simply rely on otherwise inadmissible hearsay and matters of a type that may be reasonably relied upon. (Evid. Code,  801.) That testimony is sufficient to establish relevance and to support Gloes opinion that Cervantes possessed methamphetamine for the benefit of the gang, notwithstanding the jurys verdict. Consequently, the court did not abuse its discretion by admitting gang evidence at trial.[3]


Sufficiency of the Evidence to Support Street Terrorism Conviction


Cervantes also challenges the sufficiency of the evidence to support the street terrorism conviction, relying on the jurys not guilty verdict on the charge of possession of methamphetamine for sale and its rejection of the prosecutions argument that this crime was committed for the benefit of the Plas gang. Generally, [w]hen the challenge is to the sufficiency of the evidence, [t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] We view the evidence in the entire record in the light most favorable to the respondent and we presume the existence of every fact in support of the judgment that the trier could reasonably deduce from the evidence. [Citation.] To be substantial, the evidence must be of ponderable legal significance . . . reasonable in nature, credible, and of solid value. [Citation.] (In re Jose P. (2003) 106 Cal.App.4th 458, 465-466.)


Section 186.22, subdivision (a) provides, 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, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. Pursuant to this statute, the court instructed the jury that a conviction of active participation in a criminal street gang required the prosecution to prove, (1) Cervantes actively participated in a criminal street gang on or about February 3, 2007, (2) that during his active participation, Cervantes knew that the members of the gang engaged in or have engaged in a pattern of criminal activity, and (3) that he willfully promoted, furthered or assisted the commission of a felony. [4]


The prosecutor relied on evidence of Gonzalez 2007 auto theft conviction and the instant crime to prove the elements of both the gang enhancement and the substantive offense of active participation in a criminal street gang. The jury instructions specifically referenced both crimes. Cervantes contends the prosecution failed to prove the primary activities element of the statute or to establish the requisite pattern of criminal activity, which means, according to Cervantes, that the evidence was also insufficient to prove his active participation in a gang. He points to the jurys not guilty verdict to the charge of possession for sale and not true finding on the related gang enhancement.


As the Attorney General points out, we determine the sufficiency of the evidence to support the jurys verdict with respect to Cervantes active participation in Plas without regard to its resolution of other counts. Section 954 states, An acquittal of one or more counts shall not be deemed an acquittal of any other count. As stated in People v. Pahl (1991) 226 Cal.App.3d 1651, this statute requires each count [to] stand on its own, and a verdict on one has no bearing on any other. (Id. at p. 1657.) Since 1927 our courts have followed the general rule and viewed an inconsistent acquittal as the product of confusion or an act of mercy on the part of the jury, of which an appellant is not permitted to take further advantage. [Citations.] Thus California has codified and established the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons. [Citations.] [Citation.] (Ibid.) As a result, Sufficiency-of-the evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt. [Citations.] This review should be independent of the jurys determination that the evidence on another count was insufficient. (People v. Palmer (2001) 24 Cal.4th 856, 863, italics added.)


In this instance, we find ample evidence to support the jurys guilty verdict with respect to Cervantes active participation in a criminal street gang. Gloes testimony provided sufficient evidence that the Plas gang met the statutory definition of a criminal street gang. Cervantes does not dispute the Gonzalez predicate offense, and both prosecution experts testified that Cervantes possessed methamphetamine for the purpose of sales. The determinative facts were packaging Cervantes had four separate, color-coded baggies of varying weights and the absence of any means to personally ingest the drug, and neither found the absence of a scale, large amounts of cash, or other packaging materials to be determinative. While the jury concluded Cervantes was not guilty of possession of methamphetamine for sale, a rational jury could have come to the opposite conclusion based on the facts adduced at trial.


Having found sufficient evidence to support a finding that the Plas gang fits the statutory definition of a criminal street gang, we likewise conclude that the prosecution proved the remaining elements of the substantive crime. Gloe testified that Cervantes was a veteran Plas gang member whose ongoing involvement in the gang is more than nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 752.) In support of his opinion, Gloe cited Cervantes numerous contacts with law enforcement, usually while he was in the company of other Plas gang members, his gang-related tattoos, and his prior admission of gang membership. Having two tattoos that memorialize the death of other Plas gang members strongly suggests Cervantes is a willing and active participant in an ongoing organization. Gloe further testified that selling narcotics is the biggest fundraiser for Hispanic street gangs in Southern California, an activity which helps support the gangs ongoing criminal enterprise, and there was evidence Cervantes left San Bernardino and came to Placentia, specifically to Plas turf, to commit the instant offenses. When viewed in the light most favorable to the judgment, substantial evidence supports the jurys verdict on count two, active participation in a criminal street gang.


III


DISPOSITION


The judgment is affirmed.


SILLS, P. J.


WE CONCUR:


_


MOORE, J.


IKOLA, J.


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[1] All further undesignated statutory references are to the Penal Code.


[2] This case involved a prosecution for attempted murder, shooting at an inhabited dwelling, attempted kidnapping for carjacking, and attempted carjacking with allegations the crimes were committed for the benefit of the 13 Kings criminal street gang. On appeal from the judgment and the trial courts denial of Albarrans motion for a new trial, a majority of the appellate court determined that certain portions of the gang experts testimony were irrelevant to the underlying charges and extremely prejudicial, and that the admission of this extremely inflammatory and irrelevant evidence deprived Albarran of due process and a fair trial. (Id. at p. 231, fn. 17.)


[3] We also note that the court instructed the jury as to the proper use of Gloes expert testimony, and that evidence of Cervantes prior conviction was excluded to avoid undue prejudice from cumulative evidence.


[4] Pursuant to CALCRIM No. 1400, a criminal street gang was defined as any ongoing organization, association, or group of three or more persons, whether formal or informal: [] 1. That has a common name or common identifying sign or symbol; [] 2. That has, as one or more of its primary activities, the auto theft, in violation of Vehicle Code section 10851, and the Possession for Sales of a Controlled Substance, in violation of Health and Safety Code section 11378; [] AND [] 3. Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity. A pattern of criminal activity was defined as follows: The commission of, or attempted commission of, or conviction of Unlawful Vehicle Taking in violation of Vehicle Code section 10851 and Possession for Sales of a Controlled Substance in violation of Health and Safety Code section 11378; [] 2. At least one of those crimes were committed after September 26, 1988; [] 3. The most recent crimes occurred within three years of the earlier crimes; [] AND [] 4. The crimes were committed on separate occasions or were personally committed by two or more persons.



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