P. v. Castro

Filed 1/5/10 P. v. Castro CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael M. Johnson, Judge. Affirmed.

Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis, Joseph P. Lee and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

________________

A jury convicted Jessie Castro (appellant) of attempted murder (Pen. Code,  187, 664)[1] (count 1). The jury found that a principal discharged a firearm causing great bodily injury ( 12022.53, subds. (d)(e)) and that the crimes were committed to benefit a criminal street gang ( 186.22, subd. (b)(1)( C)). The trial court sentenced appellant to the midterm of seven years for the attempted murder and 25 years to life for the firearm-use enhancement, for a total sentence of 32 years to life.

Appellant appeals on the grounds that: (1) he was denied due process because there was insufficient evidence to support the jurys true finding on the gang enhancement; (2) the gang experts opinions regarding appellants gang membership and the gang-related nature of the crime should have been excluded because the witness was not a qualified expert, and his opinions lacked reliable foundation; (3) the gang experts opinions that the crime was committed for the benefit of and in association with the Mara Salvatrucha gang invaded the province of the jury, and their admission was prejudicial error; (4) admission of certain gang evidence was so prejudicial that appellant was denied due process of law; (5) defense counsels failure to object to the gang experts qualifications and to his testimony, and the failure to move to exclude his testimony, resulted in a denial of appellants Sixth Amendment right to effective assistance of counsel; and (6) the trial court abused its discretion by allowing appellant to be impeached with his 2004 juvenile adjudication of possession of a firearm.

FACTS

Prosecution Evidence

At approximately 1:30 p.m. on January 16, 2008, Kevin Duarte (Duarte) was in Hollywood on his way to an appointment when two men confronted him, one of whom was later identified as appellant. Appellant asked Duarte where he was from. Duarte knew he was being hit up, which meant he was challenged to name his gang. He answered, Nowhere. Appellant punched Duarte in the eye. Duarte turned and tried to get away, but he felt hands grabbing at his Raiders jacket. He finally pulled away and started running. He heard gunshots and then felt he had been hit. Duarte fell to the ground and looked back. He saw appellant and the other man run toward a blue apartment building. Appellant was holding a gun. Appellant went inside the blue building, and the other man got in a black car and drove away.

When police arrived at the scene, Duarte told them that the gunman was five feet eight inches tall and weighed 220 pounds. He had letters tattooed on his arm, possibly a D and an A, and he had a tattoo that looked like a line near his eye. Police spoke to Duarte again in the hospital and showed him a photographic lineup (six-pack). Duarte selected appellants picture. Duarte also identified appellant at the preliminary hearing and at trial as the man who confronted him on the street. Appellant was shown to have the letters L and A tattooed on his arm and a teardrop tattooed next to his eye.

Maria Sorto (Sorto) lived nearby and heard the gunshots. She looked outside and saw a man she later identified as appellant and another man running to the blue building. Sorto called 911. Sorto was shown a six-pack and selected appellants picture as that of the man she had seen running with the gun. Sorto later stated she was only 30 percent sure of her identification.

After speaking with Duarte, police officers obtained appellants telephone number and called him, telling him to come out of his house. Appellant came out of the blue building and was arrested. Police later found a handgun in the backyard of the building. Subsequent tests showed that the bullet found in Duartes body was fired from that gun. DNA found on the gun came from Argenis Hernandez (Hernandez). Hernandez was five feet seven inches tall and weighed 150 pounds. He is a member of the Mara Salvatrucha (MS) gang with the moniker of Flaco.

Officer Ciro Ochoa (Ochoa) of the Los Angeles Police Department (LAPD) testified as a gang expert at appellants trial. He stated that the primary activity of MS was committing violent crime. The MS territory included the area of Duartes shooting. Ochoa testified regarding two predicate crimes committed by MS members in 2006 and 2007. When the prosecutor posed a hypothetical question to Ochoa based on the facts of appellants case, Ochoa was of the opinion that the shooting was committed for the benefit of the MS gang. Ochoa testified that gang members often share guns with one another. The gun stays within the gang rather than with a particular individual.

Defense Evidence

Dr. Mitchell Eisen testified as an expert on eyewitness identifications. He stated that during moments of traumatic stress, individuals are not able to process information as well as they normally would. Also, if a witness makes an identification in a six-pack, he or she is likely to choose the same person as the perpetrator even if they were wrong the first time. A person tends to substitute the identified persons face for that of the actual perpetrator in his or her mind. There does not seem to be a relationship between how confident one is of an identification and its accuracy.

Officer Julia Peat (Peat) of the LAPD testified that appellant participated in a military-style training program that was designed to get kids turn[ed] around. After appellant completed the program, he spoke voluntarily to people about gang life. Peat did not know if appellant gave any of these speeches after October 2007.

Appellant testified that he lived in an apartment in the blue house. He joined a tagging crew called Bad Habits when he was approximately 12 years old. He denied that any of the crew sprayed graffiti unlawfully. He said that they only spray-painted after obtaining permission from an owner. Appellant joined MS when he was 15. He said he had never seen an MS member with a gun. Gang members were like Robin Hood in the crimes they committed. When asked whether MS victimized people in their territory, he replied, I couldnt tell you. I mean it could and it couldnt.

Appellant testified that he was found in possession of a firearm when he was 15 and was given probation. After serving his term, he volunteered to speak to others about leaving the gang lifestyle. Appellant stopped associating with MS and underwent treatments to remove his tattoos. Appellant was attacked by MS members who were angry about his leaving the gang. Appellant left the state and stayed away for approximately eight months. He lived with his brother in Germany, and he also spent time in Georgia and Massachusetts. Appellant became homesick and returned to live in the blue house, the same place he had lived before his travels. At the time of the shooting, appellant was living with his girlfriend and their two children. His girlfriends brother was an MS member with the moniker Terror.

Approximately five weeks before the shooting, on December 10, 2007, appellant was found to be in the company of two MS gang members in Compton. Appellant said he went to visit them because one of them, Israel Flores (Flores), asked for advice on leaving the gang. Appellant acknowledged that he had previously told police he was with the two MS members because he went to a fair, took a bus to Compton, and just woke up there the next morning. Appellant said that someone applied the teardrop tattoo on his face as a prank while he was sleeping.

Appellant said that Hernandez and another man called Loco asked appellant to come out and talk to them on the day of Duartes shooting. Appellant refused, and the men left. Appellant went outside to smoke and heard gunshots. He was frightened for his life and ran inside to protect his children. Appellant did not call 911 because he did not trust the police. Appellant said he weighed 275 pounds one week after the shooting.

DISCUSSION

I. Evidence in Support of Gang Enhancement

A. Appellants Argument

Appellant concedes that there was evidence suggesting his involvement in the offense but contends there was insufficient evidence he was a current member of the MS gang with an intent to promote, further, or assist the gangs criminal conduct. Appellant asserts the evidence overwhelmingly reveals he had disassociated from the MS gang and was probably framed in retaliation.

B. Relevant Authority

Section 186.22, subdivision (b)(1) provides that any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: . . . .

The elements of a section 186.22 gang enhancement may be proved by a combination of documentary evidence, percipient witness testimony, and opinion testimony by an experienced investigator. (People v. Gardeley (1996) 14 Cal.4th 605, 626 (Gardeley).) We review a section 186.22 gang enhancement finding for substantial evidence. (People v. Williams (2009) 170 Cal.App.4th 587, 624.) [S]ubstantial evidence is evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Id. at p. 576.) We apply the same standard of review when a case relies in part on circumstantial evidence. (People v. Lee (1999) 20 Cal.4th 47, 58.)

Given this courts limited role on appeal, defendants bear an enormous burden in claiming there was insufficient evidence to sustain the finding. If it is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the matter ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Alcala (1984) 36 Cal.3d 604, 623.)

C. Evidence Regarding Gang Enhancement

As noted, Duarte testified that appellant asked Duarte about his gang affiliation when accosting him. In addition, Ochoa gave gang expert testimony in support of the allegation.

Ochoa was familiar with a gang called MS 13, which stood for Mara Salvatrucha 13. Based on his training and experience, he believed it was a criminal street gang. Ochoa testified regarding a 2007 robbery and a 2006 assault with a deadly weapon. Each crime was committed by a man whom Ochoa knew to be an MS gang member, based on police resources at his disposal. The gangs territory is contained within Hollywood and is bounded by Fountain Avenue to the north, Beverly Boulevard to the south, Normandie Avenue to the east, and Wilton Place to the west.

Ochoa was familiar with appellant and was of the opinion that he was, at the time of trial, a member of the MS gang. This opinion was based on appellants tattoos and his admission to Ochoa at the scene of Duartes shooting. Ochoa was one of the officers who responded to the scene, and he had contact there with appellant for the first time. Appellant said he had been a member of MS for two years and that he had been a member of Bad Habits for five years. Ochoas former partner, Officer Morales (Morales), and other officers also told Ochoa that appellant was an MS member.

Appellant has a tattoo that says Bad Habits just below his neck. Bad Habits was a junior varsity gang for MS, and members of Bad Habits typically join MS. Ochoa identified a tattoo of the letters L and A and a Dodgers symbol that appellant has on his right arm. Ochoa said that gang members identify themselves as being from Los Angeles to get more respect. Appellant wears a tattoo of three dots on his right wrist, each dot symbolizing one of the three words Mi Vida Loca. This is typically one of the first tattoos acquired by a gang member, and it means their crazy lifehow they live every day. Ochoa identified a teardrop tattoo under appellants right eye. A teardrop tattoo can mean losing someone special from their gang or spending a term in prison. Ochoa identified the tattoos of an M and an S on appellants chest.

Appellant had undergone a laser procedure to remove the letters from his chest, which is why they were lighter in color than the other tattoos. The fact that appellant was trying to remove the tattoos from his chest did not change Ochoas opinion that appellant was an MS member. Ochoa knew from gang members that they sometimes have their tattoos removed to avoid identification and prosecution for crimes. Ochoa also knew of gang members who have no tattoos and are very active. They avoid having tattoos so as not to be easily identified and also to be better able to obtain legitimate jobs, which they sometimes do in addition to committing crimes.

In preparing for his testimony, Ochoa reviewed documentation of an incident where police officers contacted appellant on December 10, 2007, while he was with Flores and John Garcia (Garcia), the latter of whom committed one of the predicate crimes about which Ochoa testified. The three men were at a residence in Compton. Ochoas former partner knew Flores as an MS member called Little Pelon. Flores was formerly in the Bad Habits gang with the moniker of Night Owl.

The prosecutor posed the following hypothetical to Ochoa, in pertinent part: Assume for the purposes of this hypothetical, January 16, 2008, Kevin Duarte is walking northbound on St. Andrews Place and then is going to go westbound on La Mirada Avenue. At the time hes wearing a Raiders jacket. As he goes through the intersection ofas he goes northbound and crosses La Mirada Avenue, he sees two individuals, one of them being the defendant in this case, and another unidentified person, run up to him. Assume that the defendant gets within arms range of Kevin Duarte, asks him, Where are you from? Kevin Duarte says, Im not from anywhere, or Im not from nowhere. Assume then that the defendant claims, Im from MS, and then punches Kevin Duarte in the eye. Assume then Kevin Duarte turns to leave and goes westbound on La Mirada and he feels a pair of hands pulling on his jacket. Assume further that Kevin Duarte is able to get away. As his back is turned towards the two individuals, he hears multiple gunshots. Assume further that Kevin Duarte is shot multiple times, . . . .  Assume then that Mr. Duarte lies on the street and is eventually treated by the police. The defendant then runs and goes towards the blue building that you previously identified. . . .  Assume further that the firearm that was used in the shooting was located in the backyard parking and trash area of the defendants apartment building, and that was the gun that was used. . . . The prosecutor then asked if Ochoa had an opinion as to whether the crimes of attempted murder and attempted robbery were committed for the benefit of, at the direction of, or in association with the MS street gang.

Ochoa replied that the crimes were committed for the benefit of the street gang, and he stated that the crimes would benefit the perpetrators gang because it would instill fear in the community. The people living in the area, knowing the perpetrator lived in that neighborhood, would be afraid to press charges against the individual or the gang. The crime would also elevate the status of the gang in the eyes of other gangs. Ochoa believed the crime was committed in association with the MS gang in particular, based on the information that the perpetrator said he was from MS and the fact that the crime was committed in MS territory.

D. Evidence Sufficient

We believe sufficient evidence, as recited ante, shows that appellant was a current gang member. Ochoa testified that appellant admitted his gang membership when Ochoa spoke to him at the shooting scene. Unlike appellant, we do not believe Ochoa changed his testimony. Ochoa at first stated appellant admitted his membership to Ochoa in the past, and then explained that the past occasion was the time of the instant shooting. We see no contradiction in these two statements. Appellant attempts to read ambiguity in Ochoas phrase, he admitted to me in the past that he was a member of MS. Ochoas use of the past tense in both verbs indicates that appellant was a member at the time he said he was a member. In addition, appellant was found in the company of two MS gang members approximately one month before the shooting.

The testimony that appellant cites to show that appellant was not a gang member was contradictory. It is true that Peat testified that appellant graduated from her boot camp intervention program in the spring of 2006. Enrollment in the program was not voluntary, however, and it was a consequence of appellants prior criminal conduct. After appellant graduated, Peat said, he volunteered to speak to parents and kids about gangs in approximately June 2006. Contrary to Peats testimony, appellant said he fled the country as soon as he finished the boot camp program. Peat also testified that she did not know if appellant was still volunteering in November and December of 2007, the two months preceding the Duarte shooting. Peat said that it was a given that program participants could not hang around with gang members. Yet appellant was found to be among a group of young males, at least two of whom were MS gang members on December 10, 2007. Appellant claimed that Flores and Garcia wanted to change, and that is why he met with them. Yet, according to appellant, it was dangerous to want to get out of a gang. Therefore, it is highly unlikely Flores and Garcia would have invited such a large audience to a discussion with appellant on leaving the gang. Appellant claimed at one point that, when he was in custody for possession of a firearm, he was already not participating in the gang and was beaten up for it. He also testified, however, that the only time he saw an MS gang member with a gun was when he himself possessed the gun.

If the issue of whether appellant was a current gang member is seen as a credibility contest between Ochoa and appellant, given the contradictions in appellants testimony on this subject and his incredible statements about the nature of gang behavior in general, we believe the jury had a sufficient basis on which to base its true finding. Moreover, it was not necessary for appellant to have been an MS gang member at the time of committing the offense for the gang enhancement to apply. Section 186.22, subdivision (b) requires only that: the accused be convicted of a felony; the felony must have been committed for the benefit or at the direction of or in association with a criminal street gang; and the felony must have been committed with the specific intent to promote, further, or assist in any criminal conduct by gang members.

Appellant also discounts the fact that the crime was committed in MS territory as a basis for establishing that the crime was committed for the benefit of, or in association with, a gang. The crime not only took place in the heart of MS territory, the evidence showed that the perpetrators accosted Duarte, someone who was often in the neighborhood, with the classic gang challenge of Where are you from? Even when relating his own version of events, appellant implied the perpetrators were two gang members. Appellant merely tried to convince the jury that neither of them was he. It is true that the prosecutor stated in the hypothetical that the perpetrator said he was from M.S., when Duarte did not mention this in his testimony. It is likely the parties did not realize Duarte did not say this, since Duarte testified at the preliminary hearing that the perpetrator said he was from MS before punching him. Ochoa was the gang expert at the preliminary hearing and heard Duartes testimony. Therefore, his trial testimony was not improperly influenced. In any event, no objection was made to the hypothetical.

Appellant further asserts that the sole motivation was not to benefit the gang but rather to commit a robbery followed by an attempt to punish the fleeing victim. We believe this type of crime, and the punishment of the victim who dares to resist, is just the sort of community intimidation that Ochoa described. It was not necessary for the MS members to announce they claimed responsibility for this crime, since the gang dominates the territory in which it was committed. We believe there was sufficient evidence the crime was committed for the benefit of the MS gang and in association with the gang.

Appellant also argues that there was no evidence to support the element of the allegation that appellant had the specific intent to promote, further, or assist other gang-related criminal activity. The specific intent element necessary for a gang enhancement does not require evidence of intent to promote criminal conduct other than the charged crime, and the intent to assist another gang member in perpetrating the charged crime will suffice to show the necessary specific intent. (People v. Romero (2006) 140 Cal.App.4th 15, 20 (Romero).) In this case, evidence of the required intent can be found in the fact that appellant intended to commit a shooting, intended to help his co-perpetrator (who was most likely Flaco) commit the shooting, and knew his co-perpetrator was a member of the MS gang. There is clearly some evidence the crime itself had some connection with the activities of a gang (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199), which allowed the jury to draw a legitimate inference of intent to promote criminal conduct by gang members.

In support of this latter argument, appellant cites Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), which held that a true finding on a gang enhancement was unsupported because there was no evidence that the defendant committed the crime (robbery) with the specific purpose of furthering other gang criminal activity and there was nothing inherent in the robbery that would indicate that it furthers some other crime. (Id. at p. 1103, italics added.) Garcia has been found to be contrary to California case law. (See People v. Villalobos (2006) 145 Cal.App.4th 310, 322; People v. Hill (2006) 142 Cal.App.4th 770, 774 (Hill); Romero, supra, 140 Cal.App.4th at p. 19.) Even appellants own criminal conduct is sufficient to satisfy the requirement that he promote, further or assist in criminal conduct by a gang member. (Hill, supra, at p. 774.)

Finally, the sufficiency of the evidence showing active participation is not altered by the existence of other evidence offered by [appellant] to show he was not an active participant in the gang. Resolution of conflicting evidence and credibility issues was for the jury to decide. [Citation.] It is clear from the verdict finding [appellant] guilty of street terrorism that the jury believed he was actively participating in the gang. Because substantial evidence supports this determination, that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] [Citation.] [Citations.] (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) Appellants arguments are without merit, and sufficient evidence supports the jurys true finding on the gang enhancement.

II. Officer Ochoas Qualifications as an Expert and Foundation of His Testimony

A. Appellants Argument

Appellant contends that Officer Ochoas knowledge and experience were inadequate to qualify him as an expert on the MS gang. In addition, because his job is to monitor and suppress the criminal activity of gangs, his testimony is biased and unreliable and does not meet the requirements of Evidence Code section 801. Appellant also argues that Ochoa based his opinion upon hearsay, which is inherently unreliable, and he contends that a confrontation clause violation occurs when the declarant is not produced at trial. Appellant also asserts that Ochoas opinion lacked a reliable foundation under the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 (Daubert) and Kumho Tire Co. v. Carmichael (1999) 526 U.S. 137 (Kumho Tire).

B. Gang Experts Qualifications

Ochoa testified that he had worked in the Hollywood gang enforcement detail for approximately one year. He had been a police officer for eight years. He had worked three months in the Rampart Division and a year and a half in a narcotics buy unit. He had been doing patrols in the Hollywood Division for approximately five years. During the years he patrolled Hollywood, Ochoa had at least one contact a day with gang members. Throughout his career, he had read police reports dealing with gang crimes and worked with experienced officers who taught him different aspects of gang crimes, as well as the gang hangouts and boundaries. Ochoa received basic training in gangs in the police academy and attended a three-day gang class held by the LAPD. He attended a one-day gang symposium and another class that lasted three or four days.

Since his assignment to the gang enforcement detail, Ochoas primary function was to talk to community members about gangs and gang crimes. He and his fellow officers drive around Hollywood and talk to gang members, their families, other community residents, and other officers. The gang members tell them what they and their rival gang members are doing in the area.

Ochoa had had hundreds of contacts with gang members, families of gang members, and friends of gang members. Ochoa said that some of the best intelligence the police receive is from gang members. Ochoa named the more experienced officers he had worked with and stated that these officers trained him and imparted their knowledge to him.

C.Relevant Authority

Evidence Code section 720, subdivision (a) provides: A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. (See also CALJIC No. 2.80.) The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion [is] shown. (People v. Singh (1995) 37 Cal.App.4th 1343, 1377.) This court may find error only if the witness clearly lacks qualification as an expert. (Ibid.)

D. Expert Sufficiently Qualified

We believe Ochoas formal education by the LAPD in the subject matter of gangs and his eight years of experience in the Rampart and Hollywood Divisions, with the past year being spent in gang enforcement, provided sufficient specialized knowledge to enable him to provide an expert opinion on gangs in general and the MS 13 gang. Although gang culture is sufficiently arcane that it cannot be considered an area of common knowledge, it is not an area of expertise that requires a specialized degree either. Before becoming part of gang enforcement, Ochoa spent seven years as a patrol officer in gang-infested areas of Los Angelesnamely, the Rampart and Hollywood Divisions. A gang experts opinions may be based on experience with street gangs in general. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.)

Ochoas testimony demonstrated that he was knowledgeable about Los Angeles gangs and about appellants gang in particular. He stated that the MS gang had several cliques, two of which operated in Hollywood: the Hollywood Locos and the Harvard Criminals. Certain cliques also claimed the area between Normandie Avenue and Vermont Avenue, which is patrolled by the Rampart Division. Ochoa stated that the MS gang in Los Angeles has approximately 700 to 900 members at any given time, and the two Hollywood cliques generally have 25 to 35 members each. Ochoa described the common hand signs and the history of the gangs formation and evolution. He described their primary activities, common tattoos, and their use of the color blue from the Salvadoran flag.

Thus Ochoa demonstrated the special knowledge, skill, experience and training sufficient to qualify him as an expert. (See, e.g., Gardeley, supra, 14 Cal.4th at p. 620 [law enforcement gang expert may rely on his conversations with defendant and other members of gang, as well as information from colleagues and law enforcement agencies to form expert opinion]; People v. Martinez, supra, 158 Cal.App.4th at p. 1330 [witnesss eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports suffices to establish the foundation for his testimony regarding gangs primary activities].) Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility. (People v.Bolin (1998) 18 Cal.4th 297, 322.)

E.Foundation Sufficient

With respect to appellants complaint that Ochoas testimony was hearsay, it is clear that an experts testimony need not be based on matters personally known to the witness, as long as it is based on a type of matter that may reasonably be relied upon by an expert forming an opinion on the subject. (Evid. Code, 801.) As an expert witness, Ochoa could properly testify as to the information on which his opinion was based, even if the information was hearsay, provided it was reliable hearsay. (Evid. Code, 802; Gardeley, supra, 14 Cal.4th at pp. 618-619; People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9, citing People v. Sengpadychith (2001) 26 Cal.4th 316, 324; see also People v. Duran (2002) 97 Cal.App.4th 1448, 1463 (Duran) [gang expert may rely upon conversations with gang members, on his or her personal investigations of gang-related crimes and on information obtained from colleagues and other law enforcement agencies].) Information reported in writing by police officers and maintained for reference by the police department, such as field information cards from which the Cal Gangs database is generated, has been recognized as another permissible basis for another officer to rely on when forming an expert opinion. (Evid. Code, 801; People v. Ruiz (1998) 62 Cal.App.4th 234, 241-242 & fn. 3.) So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an experts opinion testimony. (Gardeley, supra, at p. 618; People v. Gamez (1991) 235 Cal.App.3d 957, 968 [We fail to see how the officers could proffer an opinion about gangs, and in particular about gangs in the area, without reference to conversations with gang members].) Appellants argument is without merit.

With respect to the confrontation clause violation to which appellant alludes amongst his other arguments, in People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 (Thomas), the court reiterated the rule that experts may base their opinions on inadmissible evidence and describe the basis of their opinions. The court extended this rule to allow gang experts to base their opinions on testimonial hearsay that would otherwise be barred by the confrontation clause and to recount such hearsay as a basis for their opinions. (Ibid.) The court held that because the statements were not offered to establish the truth of the matter asserted, but merely as one of the bases for an expert witnesss opinion, the confrontation clause, as interpreted in Crawford, does not apply. (Ibid.) We agree with the reasoning in Thomas. (See also People v. Cooper (2007) 148 Cal.App.4th 731, 746747.) Moreover, Ochoas testimony that appellant admitted to him that he was an MS gang member raised no confrontation clause issue. (People v. Alvarez (1968) 268 Cal.App.2d 297, 305.)

Appellant also contends gang testimony of the kind given by Ochoa is inherently unreliable under Daubert and Kumho Tire. First, appellant did not raise these issues in the trial court, and consequently, the claims are not cognizable on appeal. (People v. Valdez (1997) 58 Cal.App.4th 494, 505.) In any event, we find this argument unmeritorious. In Daubert, the United States Supreme Court held that under Federal Rules of Evidence rule 702 the trial judge has a special obligation to ensure that scientific testimony is not only relevant but reliable. (Daubert, supra, 509 U.S. at pp. 589-590, 597.) In KumhoTire, the United States Supreme Court extended this gatekeeping obligation to all expert testimony, i.e., testimony based on technical and other specialized knowledge. (Kumho Tire, supra, 526 U.S. at pp. 147-148.) The latter case also stated that the threshold issue of admissibility depends on the experts qualifications being called sufficiently into question. (Id. at p. 149.) Ochoas qualifications were not called into question, with the result that the trial court did not fail to exercise its gatekeeping function. (People v. Gonzalez (2006) 38 Cal.4th 932, 948-949.)

In addition, appellant cites an article by Placido G. Gomez entitled It is Not So Simply Because an Expert Says It Is So: The Reliability of Gang Expert Testimony regarding Membership in Criminal Street Gangs: Pushing the Limits of Texas Rule of Evidence 702, 34 St. Marys L.J. 581, 601 (2003), for the proposition that a gang experts testimony is typically lacking in reliability, both methodological and foundational. The authors opinion of the reliability of a gang experts testimony is no substitute for long-established California authority on the legitimacy of the use of police officer testimony to prove a gang enhancement. We are obliged to follow the decisions discussed anteGardeley and its progeny. A gang experts overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable. (People v. Gonzalez, supra, 38 Cal.4th at p. 949.) We are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)

III. Invasion of Jurys Province

A. Appellants Argument

Citing People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), appellant argues that Ochoas opinion that the elements of the section 186.22 gang enhancement were satisfied was an improper comment upon the issue of guilt, which was solely within the province of the jury. According to appellant, it is reasonably probable that a result more favorable to appellant would have been reached had such opinion testimony not been presented.

B.Testimony Proper

A trial courts ruling admitting expert testimony is reviewed for abuse of discretion. (People v. Mayfield (1997) 14 Cal.4th 668, 766.) Expert testimony is not necessarily improper if it happens to embrace the ultimate issue in the case. (Killebrew, supra, 103 Cal.App.4th at p. 651.) Expert opinion regarding whether and how a crime would have been committed for the benefit of a gang has repeatedly been deemed admissible, despite its coincidence with an issue to be determined by the jury. (See, e.g., People v. Garcia (2007) 153 Cal.App.4th 1499, 1513-1514; Valdez, supra, 58 Cal.App.4th at p. 509.)

Although an expert may be prohibited from expressing an opinion as to the subjective knowledge or intent of the defendant himself, an expert witness may answer hypothetical questions based on other evidence the prosecution presented without running afoul of this rule. (People v. Gonzalez, supra, 38 Cal.4th at pp. 946-947.) The expert in Killebrew stated that, when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun. (Killebrew, supra, 103 Cal.App.4th at p. 652.) It is improper for an expert to opine on whether a specific individual had specific knowledge or possessed a specific intent. (Id. at p. 658.) Because the experts testimony provided the only evidence to establish the elements of the crime (id. at p. 659), it did nothing more than inform the jury how [the expert] believed the case should be decided. (Id. at p. 658; see also In re Frank S., supra, 141 Cal.App.4th 1192, 1197-1198 [Similar to Killebrew, the expert in this case testified to subjective knowledge and intent of the minor. [Citation.] Such testimony is much different from the expectations of gang members in general when confronted with a specific action].)

Ochoas testimony does not fit within the prohibited area established by Killebrew. In that case, the gang experts testimony was not the type of culture and habit testimony approved in Gardeley and subsequent cases (Killebrew, supra, 103 Cal.App.4th at p. 654), whereas the opinions offered by Ochoa substantially adhered to this distinction and were premised upon hypothetical facts about gang expectations properly rooted in the evidence presented at trial. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) Specificity and detail in a hypothetical question asked of an expert do not convert an otherwise proper answer into a prohibited opinion regarding a defendants subjective mental state. (People v. Ward (2005) 36 Cal.4th 186, 209-210.) The prosecutor did not pose any questions about appellants mental states, e.g., whether he had particular knowledge or intent, or what motivated him. Ochoa testified only that, if the facts stated in the hypothetical were true, as emphasized by the trial courts admonition, quoted infra, the crime would have been committed for the benefit of the gang by instilling fear in the community.

The trial court ensured the jury understood its role by stating at the beginning of the hypothetical question, Let me just point out for the benefit of the jury, the attorneys can ask a hypothetical question of an expert which asks the witness to assume a series of facts and to express an opinion about them. Its up to you whether the facts have been proven or not. So you should determine that in evaluating the value of the experts opinion. In permitting the attorneys to ask the hypothetical question, the assumptions, Im not ruling that the facts have been proved. Im just determining that its within the possible range of the evidence, something you could or you could not believe, but ultimately its up to you to determine what has or has not been proven. The jury was later instructed it was not bound by an expert opinion, it could disregard any opinion it found to be unreasonable, the weight to be given an opinion was for the jury to decide, the facts of any hypothetical question were not necessarily true, and the prosecution had the burden of proving defendants guilty beyond a reasonable doubt. (CALJIC Nos. 2.80, 2.81, 2.90.)

Under the circumstances, Ochoas opinion testimony did not infringe upon the function of the jury. Accordingly, the trial court did not abuse its discretion in admitting Ochoas expert testimony.

IV. Gang Evidence Not Unduly Prejudicial So As to Deny Due Process

A. Appellants Argument

Appellant contends certain portions of Ochoas testimony were unduly prejudicial. Specifically, he cites Ochoas mention of rape and mayhem among MSs primary activities; his statement that a teardrop tattoo can mean terms spent in prison, and his testimony that gang members sometimes remove tattoos to elude prosecution. Because the eyewitness evidence was not strong, appellant claims, it cannot be said that the admission of this prejudicial testimony did not affect the jurys verdict.

B. Evidence Properly Admitted

At the outset, the determination as to whether certain evidence is unduly prejudicial is left to the trial courts discretion (People v. Olguin, supra, 31 Cal.App.4th at p. 1369). Appellants failure to raise the objection at trial prevents him from raising it on appeal.

In any event, we conclude there was no basis on which the trial court was obliged to exercise its discretion to exclude the evidence. The evidence provided by Ochoa was clearly probative with respect to the gang allegation. [P]rejudice within the meaning of Penal Code section 352 refers to evidence that uniquely tends to evoke an emotional bias against the defendant without regard to its relevance on material issues. (Killebrew, supra, 103 Cal.App.4th at p. 650.) There was little or no such evidence in this case. Ochoas mention of the crimes committed by the MS gang was necessary to prove the element of primary activities in order to show that MS was a criminal street gang. Ochoas clumsy manner of phrasing his answer does not render the information he provided unduly prejudicial. Ochoas remark that a teardrop tattoo could mean a term spent in prison was one of two possible meanings he gave for such a tattoo. The other meaning is that a gang member had lost someone. Ochoas statement that gang members sometimes remove their tattoos in order to elude prosecution for crimes was proper opinion testimony based on Ochoas experience. Given that appellant used his attempted removal of his MS tattoo as evidence of his abandoning the gang lifestyle, Ochoas testimony was probative and only marginally prejudicial. Ochoa also said a gang member might remove a tattoo in order to get a legitimate job.

Appellant relies on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) for the proposition that, just as in Albarran, the experts evidence could be classified as overkill. (Id. at p. 228.) In that case, the issue on appeal was whether the trial court erred in finding the highly inflammatory gang evidence, which was admitted to prove subsequently dismissed gang allegations, did not unfairly prejudice the defendants trial on the underlying charges. Albarran effectively concluded that most of the gang evidence should never have been part of the trial, since the gang allegations were dismissed. (Id. at pp. 227-232.) In the instant case, however, we have concluded that the gang evidence was properly admitted and fully supported the gang allegation. There was no improper use of highly inflammatory evidence, and no undue or improper prejudice.

V. Ineffective Assistance of Counsel Allegation

A. Appellants Argument

Appellant claims trial counsel was ineffective for failing to object to Ochoas qualifications, to the reliability of the foundation of his opinions, or to Ochoas opinion on the ultimate issue of the case and his inflammatory statements.

B. Relevant Authority

To establish ineffective assistance, defendant bears the burden of showing, first, that counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsels error, it is reasonably probable that the verdict would have been more favorable to him. (In re Fields (1990) 51 Cal.3d 1063, 1069-1070.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694.) [A] court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . .  If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. (In re Fields, supra, at p. 1079, quoting Strickland v. Washington, supra, at p. 697.)

C. Counsel Not Ineffective

Inasmuch as we have concluded that appellants claims are without merit on the issues he specifies, he was not denied the effective assistance of counsel by the failure to object on these issues. Moreover, in light of the extensive authority cited ante, any global objection to the entirety of the expert testimony would have been futile. Effective assistance of counsel does not require counsel to make futile objections or motions. (People v. Memro (1995) 11 Cal.4th 786, 834.)

VI. Impeachment with Juvenile Adjudication

A. Appellants Argument

Appellant argues that the trial court abused its discretion in ruling that illegal possession of a firearm was a crime of moral turpitude with which appellant could be impeached. According to appellant, the crime was not one of moral turpitude, and it was not relevant except as propensity evidence. Moreover, it was far more prejudicial than probative of any issue in this case. Appellant submits that, absent evidence of this 2004 offense, it is reasonably probable the jury would not have found appellant guilty or the gang enhancement true.

B. Proceedings Below

When appellant announced his intent to testify, the prosecutor stated he wished to impeach appellant with the underlying conduct of his juvenile adjudication. Defense counsel argued that the offense occurred five years earlier when appellant was very young, and she was not sure that it was a crime of moral turpitude. The prosecutor responded that the crime was one of moral turpitude, since minors are not permitted to possess firearms. The trial court ruled the conduct involved moral turpitude, and it would allow questions about the underlying conduct.

At the beginning of appellants testimony, his trial counsel asked him if, as a minor, he had ever possessed a gun. Appellant replied he had. His attorney asked him his age at the time, and appellant stated he was 15 years old. The prosecutor did not ask about the conduct in his cross-examination.

C. Relevant Authority

A witness may not be impeached with the fact of a prior juvenile adjudication, even of a felony, because such an adjudication is not a conviction. However, the underlying conduct is admissible under People v. Wheeler (1992) 4 Cal.4th 284, 291-292, 295 (Wheeler), as long as the criminal conduct involved moral turpitude. (People v. Lee (1994) 28 Cal.App.4th 1724, 1739.) The established test for impeachment with felony convictions, where the least adjudicated elements of the conviction necessarily involve moral turpitude, (People v. Castro (1985) 38 Cal.3d 301, 317 (Castro)) does not apply to the admission of evidence of prior criminal conduct (People v. Lepolo (1997) 55 Cal.App.4th 85, 89-90 (Lepolo)). Rather, the critical consideration is that of the circumstances of the conduct. (Wheeler, supra, at p. 295; Lepolo, supra, at pp. 89-90.) The trial court properly followed these guidelines by allowing the prosecutor to ask about the circumstances of appellants prior conduct but not the juvenile court adjudication shown in appellants probation report.

With respect to whether appellants prior conduct involved moral turpitude, we note that Castro defines moral turpitude as a readiness to do evil. (Castro, supra, 38 Cal.3d at p. 314.) Section 12101, subdivision (a)(1) provides that minors shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person. Subsequent subdivisions provide for exceptions when the minor is accompanied by his or her parent or a responsible adult under certain circumstances, such as recreational sports. A violation of this section can be a felony or a misdemeanor. ( 12101, subd. (c)(1).) In an analogous case, People v. Littrel (1986) 185 Cal.App.3d 699 (Littrel), the court considered whether the crime of possession of a concealable firearm by a convicted felon ( 12021) was a crime of moral turpitude for the purpose of impeachment. It concluded that, [b]y enacting Penal Code section 12021, the State of California has decreed that it recognizes no legitimate use of a concealable firearm by a convicted felon. The statute is based on the theory that a convicted felon has, by his prior conduct, demonstrated that if he comes into possession of a concealable firearm, he will use it to do evil. Therefore, we conclude that possession of a firearm by a felon is a crime involving moral turpitude. (Littrel, supra,at pp. 702-703, fn. omitted.)

Littrels reasoning applies to the instant statute. Apart from the statutory exceptions, there is no legitimate reason for a minor to possess a concealable firearm, which indicates that such possession reveals a readiness to do evil. The California Street Terrorism Enforcement and Prevention (STEP) Act buttresses this conclusion. The STEP Act is designed to combat violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. ( 186.20, 186.21.) It defines a pattern of criminal gang activity as the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of a list of offenses including: [p]ossession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of Section 12101. ( 186.22, subd. (e)(23), italics added.) Clearly, the Legislature believes that possession of a concealable firearm by a minor demonstrates a readiness to do evil.

Appellant also contends that, even if the conduct involved moral turpitude, the trial court abused its discretion by refusing to exclude it under Evidence Code section 352. (Wheeler, supra, 4 Cal.4th at p. 296 [admission is subject to Evid. Code, 352].) Although the record contains no explicit analysis weighing the probative value against the prejudicial effect of the evidence by the trial court, the fact that the trial court considered defense counsels objections and subsequently allowed the impeachment evidence indicates such analysis was performed. We presume the courts official duty has been regularly performed. (Evid. Code, 664.) Furthermore, the trial court gave a limiting instruction with regard to the impeachment of witnesses with prior criminal conduct.[2] We find no abuse of discretion, since evidence relating to a witnesss credibility is always highly relevant, probative, and the conduct described was not inflammatory. (Evid. Code, 210.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

DOI TODD

We concur:

____________________________, P. J.

BOREN

____________________________, J.

ASHMANN-GERST

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[1] All further references to statutes are to the Penal Code unless indicated otherwise.

[2] Duarte, the victim, was also impeached with past criminal conduct while a minor. The trial court explained, Evidence has been introduced for the purpose of showing that witnesses engaged in past criminal conduct. This may be considered by you only for the purpose of determining the believability of that witness. The fact that a witness engaged in past criminal conduct, if it is established, does not necessarily destroy or impair a witnesss believability. It is one of the circumstances that you may consider in weighing the testimony of the witness. (CALJIC No. 2.23.1.)