P. v. McGuire

Filed 5/20/08 P. v. McGuire CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant David McGuire was convicted by a jury of assault with a semiautomatic firearm and possession of a firearm by a felon. In addition, the jury found as to the assault conviction that defendant personally used a weapon and inflicted great bodily injury on the victim. In a bifurcated court trial, the court found defendant guilty of carrying a loaded firearm in public while an active gang member and found true a gang enhancement relating to the count for being a felon in possession of a firearm, and found true that defendant had served several prior prison terms.

Defendant appeals, claiming the in-field show-ups were unduly suggestive and tainted the in-court identifications, the evidence was not sufficient to support the gang crime and enhancements, gang evidence was improperly admitted at the jury trial, the gang experts testimony was improperly admitted, and sentencing errors occurred. We agree that a gang enhancement was not sufficiently proven, but otherwise affirm.

FACTS

On July 30, 2005, many people were at Jefferson Park in Bakersfield. Amanda Lopez was at the park with Miguel Rosales and their son. Victor Payan was hosting a birthday party at the park for his daughter. Guests at the party included Gilbert Holguin, Richard Martinez, Iris Hernandez, and six-year-old Liliana R. In addition, another group was having a barbeque.

Lopez noticed two men at the barbeque arguing about who brought what to the barbeque. The man in the striped shirt shoved the other man. The other man returned a blow to the man in the striped shirt. The man in the striped shirt took out a gun. The other man ran. The man in the striped shirt followed the other man and shot at him several times. After the striped-shirted man stopped shooting, he put the gun in his pants and walked off. He got into a gray sport utility vehicle (SUV).

Lopez identified defendant in court as the shooter. She also identified defendant as the shooter at an in-field show-up shortly after the crime. In addition, she identified an SUV as the car she saw defendant enter, and identified a shirt as the shirt worn by defendant.

Rosales likewise testified that two males were arguing over who brought what to the barbeque. One was wearing a white button-up shirt and the other was wearing a burgundy jersey. A third man, wearing a light blue striped shirt, tried to calm down the two men. The man in the burgundy jersey walked away and the man in the white shirt pulled out a gun and shot at the man in the burgundy shirt several times.

Rosales could not identify the shooter in court. He did recognize a blue and white striped shirt (defendants exhibit A) as the shirt worn by one of the men at the park, not the shooter. He testified he was unable to identify the shooter at an in-field show-up after the crime. He said the police officers were not pleased that he could not identify the shooter at the show-up. He testified that he and the police do not really get along.

Rosaless trial testimony was different from what he told police the day of the shooting. Shortly after the shooting, Rosales was interviewed by Bakersfield police officer Uriel Pachecho. Pachecho testified that Rosales identified the shooter as wearing a light blue striped shirt. Pachecho took Rosales to the in-field show-up of defendant and as they approached the location Rosales said, Thats him, thats him.

Holquin was about 100 to 150 feet away from the barbeque attended mostly by males in football jerseys. Some people in the group were arguing. One individual stood out from the other males because he was wearing a striped dress shirt. The man in the striped shirt started shooting at another person and followed him toward the water park. After the shooting, two others grabbed the man in the striped shirt and got him to leave. Holquin thought the gun being used was a semiautomatic weapon.

Holquin identified the striped shirt as the shirt worn by the shooter. He identified defendant at an in-field show-up as the shooter and identified defendant in court.

Martinez testified there was at the park a group of several individuals wearing football jerseys. One individual in the group had a button-up shirt. Martinez heard the conversations coming from the group getting louder, then he heard gunshots. The individual with the button-up shirt was shooting at another. The shooter stopped firing and another individual came and got him. They casually walked away.

Martinez was not able to identify defendant in court. He did identify defendant at the in-field show-up. In addition, he identified the shirt worn by defendant at the time of his arrest as the shirt that was worn by the shooter.

Payan saw a group of males wearing football jerseys at the park. Payan heard gunshots and ran to where the children were playing. He saw the shooter with his hand out. The shooter was wearing a striped button-up shirt. People grabbed the shooter and took him toward a car.

Payan identified defendant in court as the shooter. In addition, Payan identified defendant at the in-field show-up as soon as he saw him, identified the striped shirt as the shirt worn by the shooter, and said the SUV in the picture looked similar to the vehicle the shooter left the area in.

Hernandez and her husband were at the park with their daughter, Liliana. Hernandez heard loud noises and Lilianas father ran to Liliana. He picked up Liliana and ran to the car. Liliana was bleeding, crying, scared, and hysterical. Liliana had been shot in the foot. At the time of trial Liliana had severe scarring to the foot and walked with a limp.

Evidence presented at the bifurcated court trial by a gang expert to prove the gang enhancement and the separate conviction of being an active gang member in possession of a loaded firearm will be summarized later in the discussion pertinent to those facts.

DISCUSSION

I. Suggestiveness of In-Field Show-Ups

Prior to trial, defendant made a motion to exclude the identifications based on the in-field show-ups. At the hearing on the motion, defendant argued the in-field show-ups were highly suggestive, particularly after a traumatic shooting. The court found nothing unduly suggestive about the show-ups and denied the motion to exclude the identifications.

Defendant contends the pretrial identification procedures tainted the witnesses in-court identification of him and violated his right to due process. While acknowledging that California courts have not found individual show-ups inherently unfair, defendant urges this court to join the number of jurisdictions choosing to abolish show-ups in light of psychological studies revealing their inherent unreliability. Even if we do not find that show-ups are inherently unfair, defendant argues that the show-ups conducted in his case were impermissibly suggestive. Defendant claims the show-ups lacked sufficient indicia of reliability.

Preliminarily, we reject defendants request to diverge from established California law that has held that individual show-ups are not inherently unfair. We are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant bore the burden of showing an unreliable identification procedure. [Citation.] The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witnesss degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.] In other words, [i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends. [Citation.] (People v. Ochoa (1998) 19 Cal.4th 353, 412.)

Defendant claims the show-ups were unduly suggestive because he was the only Black male present; he was handcuffed and surrounded by uniformed officers and patrol cars; and, according to Rosaless testimony, the officer told Rosales the shooter had been stopped and law enforcement wanted Rosales to identify him. In addition, defendant claims there were no exigent circumstances preventing police from constructing a live line-up.

We begin with the well-established law that [t]he single person showup is not inherently unfair. (People v. Floyd (1970) 1 Cal.3d 694, 714, overruled on another point by People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) While defendant was the only Black male present at the show-up, that was based on the fortuitous circumstance that none of the police officers were Black. All of the victims described the shooter as Black. Clearly the witnesses knew they were not there to identify a police officer. Thus, the fact that defendant was the only Black person at the show-up not differentiate the show-up from any other single person show-up.

Next, defendant argues that his being handcuffed and surrounded by uniformed officers and patrol cars was unduly suggestive. The witnesses were brought to the location to determine if the individual they were shown was the person who had just fired numerous shots in a park crowded with children and others. They were not brought to the location to view a suspect to see if he had taken a candy bar from the local store. The necessity of handcuffs and patrol cars was inherent in the type of crime that occurred and the possibility that the individual being detained was a suspect. [T]he mere presence of handcuffs on a detained suspect is not so unduly suggestive as to taint the identification. [Citation.] (In re Carlos M. (1990) 220 Cal.App.3d 372, 386.)

Defendants reliance on the testimony of Rosales to support a finding that the show-up was unduly suggestive is misplaced. Rosales testified that on the way to the show-up the officer told him they had gotten the person that had done the shooting; at the show-up, he was not sure if the person he was viewing was the shooter. The officer who took Rosales to the show-up testified that he told Rosales that officers had come in contact with a subject who may or may not be a party or involved and to keep in mind that just because he was being detained or he was being handcuffed, it didnt necessarily mean that this was the suspect. Also informed him that because of the time lapse, that the subject could have changed clothing and might look different than what he looked like at the park.

The other officers who took witnesses to view the defendant testified that they admonished the witnesses that the person they were about to view may or may not be the suspect. The remaining four witnesses who participated in the show-ups testified consistently with what the officers stated regarding the admonition, and all identified defendant as the shooter. The evidence does not demonstrate that the police strongly suggested that the police suspected defendant was the shooter.

The police were not required to construct a live lineup as opposed to an in-field show-up. The show-up occurred shortly after the shooting. [S]ingle-person show-ups for purposes of in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witnesss mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended. [Citation.] (In re Carlos M., supra, 220 Cal.App.3d at p. 387.)

A defendant must show unfairness as a demonstrable reality, not just speculation. (In re Carlos M., supra, 220 Cal.App.3d at p. 386.) Defendant has failed to show that the in-field show-ups here were unduly suggestive and unnecessary. Having failed to meet the first criterion of demonstrating that the show-up was unduly suggestive or unnecessary, we need not discuss the factors utilized in determining whether the identification was nevertheless reliable.

II. Admission of Gang Experts Testimony

Defendant claims the trial court erred in admitting the gang experts testimony for several reasons. First, he argues the expert did not properly qualify as an expert because he lacked an adequate factual basis for rendering his opinion and the expert was nothing more than a conduit for hearsay. Next, he asserts the experts testimony was based on testimonial hearsay and was admitted in violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). His third contention is that the experts reliance on jail booking records violated defendants right against self-incrimination under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). His final argument challenging the gang evidence is that the experts testimony was based on inadmissible profile evidence.

A. Procedural Background

Defendant was charged with assault with a semiautomatic firearm (count 1), assault with a firearm (count 2), being a felon in possession of a firearm (count 3), and being an active gang member in possession of a loaded handgun in public (count 4). A gang enhancement was alleged in counts 1, 2 and 3.

The trial court granted the motion to strike the gang enhancements on counts 1 and 2. The court recited the following facts to support its finding that the shooting was not gang related: (1) the shooting occurred in neutral territory, (2) the defendant was arguing about money, and (3) defendant was struck in the mouth before he retrieved his handgun from his waistband.

Prior to trial defendant made a motion to sever counts 3 and 4 from counts 1 and 2. In addition, defendant sought to exclude all references to gang evidence during the trial on counts 1 and 2. The trial court bifurcated trial on the gang enhancement in count 3 and the gang crime in count 4 from the trial on the remaining charges. The court ruled that gang evidence could come in as proof of motive. After hearing most of the evidence, the trial court reversed itself and found that gang evidence was not admissible as proof of motive, finding that this case was one about eyewitness identification and the prejudice from the gang evidence would outweigh its probative value.

Defendant was found guilty in count 1 (assault with a semiautomatic rifle) with the additional allegations that he personally used a weapon and inflicted great bodily injury.^[1] He was also found guilty in count 3 of being a felon in possession of a firearm.

After the above verdicts were returned, defendant waived his right to a jury trial on the gang crime and enhancement and the matter proceeded to trial before the court.

The sole witness during the gang trial was gang expert police officer Jerry B. Whisenhunt. In addition, the court was able to consider all of the evidence from the trial on the previous counts tried before the jury.

B. Experts Opinion Based on Hearsay

Defendant claims that Whisenhunt did not properly qualify as an expert and did not have an adequate factual basis for rendering his opinion. The only information Whisenhunt had was based on hearsay provided by other officers; thus he was merely a conduit for hearsay.

Whisenhunt detailed his qualifications as a gang expert, including his experience on the job, which includes contact with gang members, numerous courses he has taken, numerous contacts with other gang agencies, numerous meetings he has attended, organizations he belongs to, and materials he has read regarding gangs.

Expert testimony may be founded on material that is not admitted into evidence and on evidence that is ordinarily inadmissible, such as hearsay, as long as the material is reliable and of a type reasonably relied upon by experts in the particular field in forming opinions. [Citation.] Thus, a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies. [Citations.] Likewise, an individuals membership in a criminal street gang is a proper subject for expert testimony. [Citations.] (People v. Duran (2002) 97 Cal.App.4th 1448, 1463-1464.)

Whisenhunt relied on his conversations with gang members, his personal investigations of gang-related crimes, and information obtained from colleagues in reaching his expert opinion. He was properly qualified to testify as an expert.

C. Application of Crawford to Expert Testimony

Defendant contends Whisenhunts reliance on conversations with gang members and other officers reports of conversations with gang members was error. He claims this evidence could not be utilized under Crawford as proof of the primary activities element, the pattern of criminal gang activity, and his membership in the gang.

In Crawford, the United States Supreme Court held that testimonial out-of-court statements are inadmissible unless the declarant is unavailable and the accused has had an opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at p. 59.)

Defendant acknowledges that his argument has been rejected in People v. Thomas (2005) 130 Cal.App.4th 1202, but he asks this court to disagree with Thomas as wrongly decided. In Thomas, other gang members told the expert that the defendant was a member of a gang. The expert utilized this evidence in reaching his conclusion that the defendant was a gang member. The defendant claimed on appeal that the statements were hearsay and their introduction violated his Sixth Amendment rights as explained in Crawford. The Court of Appeal disagreed. Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the experts opinion. Crawforditself states that the confrontation clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. [Citations.] (Id. at p. 1210.)

Subsequent to the Thomas decision, the court in People v. Ramirez (2007) 153 Cal.App.4th 1422 followed Thomas and rejected the defendants argument that the court denied him his right to confront witnesses when it allowed hearsay testimony about the facts of the predicate crimes. (Id. at p. 1426.)

We find the Thomas and Ramirez cases to be well reasoned and we decline defendants request to disagree with them.

D. Application of Miranda to Jail Booking Records

Whisenhunt testified that he reviewed 15 booking records he found relevant to his determination as to whether defendant was an active gang member. The booking information began in May of 1996 and continued until July 30, 2005. In each of the bookings, defendant stated he was a member of the Crips or the East Side Crips (ESC). He stated he wanted to be kept away from Bloods, West Side Crips or both.

Defendant claims Whisenhunts reliance on jail booking records to conclude he was an active member of the ESC violated his Miranda rights. He argues that questioning during bookings regarding gang membership goes far beyond routine booking questions permitted by the Fifth Amendment. He contends that questions regarding an arrestees gang affiliation or membership are clearly designed to elicit an incriminating response and are therefore are admissible only if proper Miranda warnings have been given.^[2]

The requirements of Miranda are well established. To assure protection of the Fifth Amendment privilege against self-incrimination, a suspect may not be subjected to an interrogation while in custody unless he has previously been advised of and has knowingly and intelligently waived his rights to silence, to the presence of an attorney, and to appointed counsel if he is indigent. Statements made in violation of Miranda are inadmissible to establish guilt. (People v. Esqueda (1993) 17 Cal.App.4th 1450, 1480-1481.)

In Pennsylvania v. Muniz (1990) 496 U.S. 582 a four-justice plurality recognized a routine booking question exception which exempts from Mirandas coverage questions to secure the biographical data necessary to complete booking or pretrial services. (Id. at p. 601, plur. opn. of Brennan, J.) The court went on to note that a booking exception to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspects Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions. (Id. at p. 602, fn. 14.)

In People v. Morris (1987) 192 Cal.App.3d 380 (Morris) the booking officer asked the defendant, if we should anticipate any type of problem with his being there in jail. The defendant answered negatively and then the officer asked, Who are you accused of killing? The defendant responded that he had killed his sister-in-law. (Id. at 388.) We found the defendants statements inadmissible because it was obvious that this was the type of question that the police should know was reasonably likely to elicit an incriminating response. (Id. at p. 389.)

In Morris, we recognized that the incriminating response must relate to the offenses for which the suspect is in custody. The focus of our analysis is not what the police may lawfully ask a criminal suspect to ensure jail security. The police may ask whatever the needs of jail security dictate. However, when the police know or should know that such an inquiry is reasonably likely to elicit an incriminating response from the suspect, the suspects responses are not admissible against him in a subsequent criminal proceeding unless the initial inquiry has been preceded by Miranda admonishments. A police officers concerns for jail security, encompassing the safety of the suspect, can be triggered by a variety of factors, some of which would have nothing to do with the offense underlying the suspects incarceration and, as importantly, could only be explored by inquiring of the defendant himself. Thus a suspect who is booked into jail wearing tattoos or other indicia of gang affiliation might alert the booking officer to the possibility of gang-related violence; the quickest way for the officer to resolve such concern is to ask the suspect whether jail personnel should anticipate any trouble in this regard once the suspect becomes housed in the jail. So long as the offense for which the suspect is in custody is not itself gang-related, there is no reason the officer should foresee the question will elicit an incriminating response. In such a circumstance, an incriminating response is not the product of affirmative police conduct and would be admissible in the absence of Miranda warnings. (Morris, supra, 192 Cal.App.3d at pp. 389-390.)

In the 20-plus years since the Morris decision, gangs have become much more prevalent. Questioning about possible gang affiliations for housing purposes is now a routine question that is asked at booking. The routine booking interview is an indispensable procedure in the efficient administration of justice. (People v. Quiroga (1993) 16 Cal.App.4th 961, 971.) Questioning about gang affiliations is a security question that must be asked to facilitate safe housing in the jails. The officer conducting the booking inquiry should not have to think ahead to when a question might, in the future, become a link to a crime a defendant might commit. As a result, the existence or nonexistence of Miranda advisements on a date not directly linked to the crime for which defendant has been arrested is immaterial to the current offense.

Disregarding the booking information relied on by Whisenhunt from July 30, 2005, the date of defendants arrest in the present case, we still have before us a record of defendants being booked into jail 14 previous times from which defendants booking statements were available to and reviewed by Whisenhunt. There is nothing in the record, including the probation officers report, suggesting that these other 14 instances involved gang behavior or gang crimes. Thus, Miranda advisements were not required for the gathering of this routine booking information and Whisenhunt could properly rely on this information, consisting of defendants own statements of gang membership, in reaching his expert opinion.

E. Profile Evidence

Defendant contends that Whisenhunts conclusions were inadmissible because they depended on improper profile evidence. In particular, defendant argues that Whisenhunt proclaimed there is a profile of a generic gang member, defendant acted in accordance with this profile, and thus he possessed the firearm to further the interests of the gang.

As shall be discussed in the following issue, the gang enhancement was not supported by substantial evidence and the street gang firearm possession conviction does not require the gang connection element. Thus error, if any, in admitting profile evidence was harmless. We do note that it is well established that experts can describe the culture and habits of criminal street gangs. (People v. Gardeley (1996) 14 Cal.4th 605, 617.)

III. Substantial Evidence to Prove Gang Crime and Enhancement

Defendant contends the evidence is insufficient to support a finding that he was an active gang member or that the offenses were committed for the benefit of, at the direction of, or in association with any criminal street gang or with the specific intent to promote, further, or assist in any criminal conduct by gang members.

In a bifurcated proceeding the trial court found true the gang enhancement (Pen. Code,  186.22, subd. (b)(1))^[3]attached to his conviction in count 3 of being a felon in possession of a firearm. In addition, the court found defendant guilty in count 4 of carrying a loaded firearm in public while an active participant in a criminal street gang. ( 12031, subd. (a)(2)(C).)

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Steele (2007) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. [Citation.] We may reverse for lack of substantial evidence only if upon no hypothesis whatever is there sufficient substantial evidence to support the conviction or the enhancement. [Citation.] (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508.)

A. Sufficiency of the Evidence for the Gang Enhancement

Section 186.22, subdivision (b)(1) contains the special allegation charged against defendant in count 3. It enhances an existing sentence and does not criminalize mere gang membership [citation]; rather, it imposes additional punishment for 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. [Citation.] (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S).)

We find our case of Frank S., supra, 141 Cal.App.4th 1192 to be strikingly similar to what occurred here and agree with defendant that the prosecution failed to prove that his possession of the gun was done with the requisite specific intent required by the gang enhancement.

In Frank S. a police officer initiated a traffic stop of the minor after he failed to stop at a red traffic light while riding a bicycle. The minor rode alone and gave a false name to the officer. The officer discovered the minor in possession of a concealed five-and-one-half-inch fixed blade knife, a small bindle of methamphetamine, and a red bandana. After the officer arrested the minor, the minor stated he had been attacked two days prior and needed the knife for protection against the Southerners because they feel he supports northern street gangs. The minor also stated he has several friends in the northern gangs. (Frank S., supra, 141 Cal.App.4that p. 1195.)

The prosecutions expert discussed specifics about the Northside Visalia gang (NSV). She then provided information about Frank S. [T]he minor listed himself as an affiliate of the Nortenos during intake at the juvenile detention facility. In her opinion, this admission alone sufficed to deem the minor a gang member. When the prosecutor asked if the minor is an active participant in NSV, the expert responded that she believes he is an active Norteno. She based this opinion on his possession of the red bandana, his admission of affiliation with the north when he entered the detention facility, and his stated need of the knife for protection since Southerners believed he supported Nortenos.

When asked her opinion of the minors purpose for the knife, the expert stated the minor possessed the knife to protect himself. She also stated a gang member would use the knife for protection from rival gang members and to assault rival gangs. When asked how the minors possession of the knife benefited the Nortenos, she responded it helps provide them protection should they be assaulted. (Frank S., supra, 141 Cal.App.4th at pp 1195-1196.)

On appeal the minor argued that substantial evidence did not show he had a specific intent to promote, further, or assist in any criminal conduct by gang members. We agreed and published the case to emphasize that crimes may not be found to be gang-related based solely upon a perpetrators criminal history and gang affiliations. (Frank S., supra, 141 Cal.App.4th at p. 1195.)

In finding error we stated that the expert simply informed the judge of her belief of the minors intent with possession of the knife, an issue reserved to the trier of fact. She stated the knife benefits the Nortenos since it helps prove them protection should they be assaulted by rival gang members. However, unlike in other cases, the prosecution presented no evidence other than the experts opinion regarding gangs in general and the experts improper opinion on the ultimate issue to establish that possession of the weapon was committed for the benefit of, at the direction of, or in association with any criminal street gang. [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minors statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minors specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended. (Frank S., supra, 141 Cal.App.4th at p. 1199.)

Whisenhunt testified that the possession of firearms enhances the reputation of the gang, and gang members are encouraged to be armed or have a firearm close by to be able to protect themselves. Whisenhunt stated that gang members carry firearms within their traditional gang areas and are encouraged to carry them outside the gang area for the purpose of protecting themselves and to be used for defensive and offensive purposes.

Whisenhunt attempted to testify that, based on reports he had read, there were other ESC gang members present at the barbeque. Defendant objected based on hearsay and other grounds because Whisenhunt was not the officer investigating the barbeque incident, nor was the prosecution able to provide proper witnesses at the jury trial to prove the presence of other gang members. Consequently, Whisenhunt could not utilize this fact as part of his expert opinion because it had never been established by competent evidence. The trial court agreed and ruled under Evidence Code section 352 that evidence of the presence of other ESC gang members was not admissible.

The prosecution then sought to provide evidence, via Whisenhunt, that other gang members were present at the barbeque because defendant gave a statement where he said he was at the park with people from the East Side. Defendant referred to the others by monikers. Whisenhunt testified that the monikers were for individuals who were members of the ESC. Defendant again objected based on hearsay because Whisenhunt was not the officer who took defendants statement and no other proof had been admitted of the contents of defendants statement. After much discussion, the People agreed when the trial court stated it could not find that other ESC gang members were at the barbeque because the court could not rely on hearsay to prove that fact. The trial court agreed with defendant that the trier of fact should not consider the effect of an unproved fact in evaluating the answer to a hypothetical question asked of an expert witness.

The court in essence found that there was no competent proof that other ESC gang members were at the barbeque. We concern ourselves with the hypothetical question of whether the firearm was possessed for the benefit of, in furtherance of, or at the direction of a criminal street gang absent the evidence that other ESC gang members were present at the barbeque.

Whisenhunt testified in his expert opinion that the gun was possessed for the benefit of, in furtherance of, or at the direction of a criminal street gang because being that he is in a neutral area of town which is not controlled by any gang within the city of Bakersfield, he is carrying that firearm on his person to act in defensive and offensive persons for the East Side Crips criminal street gang and also to take action against rival gang members who happen to be at the park at the time as well.

Whisenhunt additionally testified that a recognizable member of a gang would carry a firearm for the purpose or the benefit of or in association with a gang because not only are you protecting your own safety, you are protecting the reputation of the East Side Crip criminal street gang.

On cross-examination, Whisenhunt was asked if it was his opinion that any time defendant might possess a firearm it would necessarily be for gang purposes. He replied yes. Defendants counsel asked, But if he is in, say East Side Crip territory, its [possession of the firearm] in order to enhance his status in the gang. In neutral territory, its potential self-defense. In rival territory, it is being aggressive. No matter where he is, its for purposes of a gang; is that right? Whisenhunt replied, No sir, that is not right. He could be standing in the middle of a field shooting at birds. I wouldnt consider that gang activity.

Here, as in Frank S., [t]he prosecution did not present any evidence that the minor [defendant] was in gang territory, had gang members with him, or had any reason to expect to use the knife [gun] in a gang-related offense. (Frank S., supra, 141 Cal.App.4th at p. 1199.) In addition, at the time of the offense defendant was not dressed in gang attire or in possession of any gang paraphernalia.

The gang enhancement was found to be gang related based solely upon defendants gang affiliations. This is precisely what we found to be erroneous in Frank S. The enhancement to count 3 was not supported by sufficient evidence and must be reversed.

B. Evidence of Possession of a Loaded Firearm by an Active Gang Member

Defendant contends the evidence is insufficient to prove he was an active member of a criminal street gang and is insufficient to show that his possession of a loaded gun in public was for gang purposes. ( 12031, subd.(a)(2)(C).)

Defendant was found guilty in count 4 of possession of a loaded firearm in public by an active participant in a criminal street gang for purposes of section 12031, subdivision (a)(2)(C). The definition of an active participant in a criminal street gang is that set forth in section 186.22, subdivision (a).

In People v. Schoppe-Rico (2006) 140 Cal.App.4th 1370 the court found that section 12031, subdivision (a)(2)(C), the street gang firearms statute, does not include a gang connection element. In other words, the firearm possession need not be committed with the specific intent to promote, further, or assist in any criminal conduct by the gang. [T]he Legislature intended the street gang firearms statutes to make it possible to convict active gang members of a felony whenever they are found in possession of a loaded or concealed firearm, even when the prosecution cannot establish any temporal or causal connection between the firearm possession and gang activity. (People v. Schoppe-Rico, supra, at p. 1381.)

We agree with the analysis in Schoppe-Rico and thus need only determine if substantial evidence supports the finding that defendant is an active participant in a criminal street gang.

In the context of the California Street Terrorism Enforcement and Prevention (STEP) Act ( 186.20 et seq.), active participation is involvement with a criminal street gang that is more than nominal or passive. [Citation.] It is not enough that a defendant has actively participated in a criminal street gang at any point in time, however. A defendants active participation must be shown at or reasonably near the time of the crime. Section 186.22, subdivision (a) uses the present tense--actively participates--as did the Supreme Court in People v. Castenada [People v. Castenada (2000) 23 Cal.4th 743, 747.]--involvement that is more than nominal or passive. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509, italics in original.)

Whisenhunt testified that he was familiar with defendant, having contacted him out in the street and having read reports of incidents he had been involved in. Whisenhunt relied on three field interview cards, all from 2000, when the defendant was in ESC territory and in the company of ESC gang members.

Whisenhunt also relied on 15 booking records, dating from 1996 to the date of the current offense. The final five booking records were dated December of 2000, April of 2001, October of 2002, March of 2003, and the current offense in July of 2005. These booking records indicated that defendant associated with Crips and wanted to be housed separately from Bloods. We note that defendant was committed to prison on May 7, 2001 and paroled on September 5, 2002. His parole was revoked in October of 2002 and he was again paroled in January of 2003. In March of 2003 he was committed to prison and was paroled April 14, 2005.

Whisenhunt relied on several police reports. In a report dated November 18, 2000, defendant was placed under arrest for being drunk in public. He was outside his residence in ESC territory. Earlier that day two rival gang members were struck by bullets from a nine-millimeter weapon in a drive-by shooting. The residence where defendant was arrested was searched, and officers found a nine-millimeter loaded firearm in a couch cushion in the house. The officers also located gang-related items in the house.

The next report relied on by Whisenhunt was dated October 20, 2000. Officers responded to an area known as a hang out for ESC gang members. Upon arrival they found firearms and rock cocaine for sale. Defendant was inside the residence with three documented members of the ESC.

On March 8, 2003, officers responded to a wedding reception. It was reported that defendant was unknown to anyone at the reception and was not invited. He was inside of the house where the reception was held and when asked to leave he brandished a firearm.

Whisenhunt testified that defendant had a street moniker of Super Dave. Whisenhunt had spoken to fewer than 10 ESC gang members who identified defendant by his moniker. In October of 2000, Whisenhunt responded to an area and defendant was there. He was wearing a gold chain with a Superman emblem on a pendant.

Whisenhunt testified that he had seen defendants tattoos, which stated, Thug 4 life, rest in peace with monikers of other gang members, livin legend, and Death before dishonor. Whisenhunt testified these were all gang-related tattoos.

It was Whisenhunts opinion that defendant was an active gang member on July 30, 2005. The basis for his opinion was everything Ive reviewed, which would include field interview cards, jail bookings, tattoos which are on Mr. McGuires person, along with past cases I have reviewed, including the most current.

Although there are gaps in the evidence of defendants gang activities, this can be explained because at those times he was in prison. Based on the above evidence (and excluding the field identification card of July 30, 2005, which we previously found inadmissible), sufficient evidence supported the trial courts finding that defendant was an active gang member.

IV. Mention of Gangs During Voir Dire and Opening Statements

As previously set forth, the gang enhancements for counts 1 and 2 were dismissed prior to trial. Also the gang enhancement for count 3 and the gang crime in count 4 were bifurcated from the other charges. The trial court initially ruled that the People could present gang evidence during the initial jury trial on the question of motive. It later reversed itself during trial after the People had presented most of its evidence. Although no gang evidence was admitted during the first phase of the trial, defense counsel said during his opening statement that an officer thought that defendant was a gang banger. Defense counsel also said that there were individuals at the party associated with street gangs. In addition, the potential jurors were asked questions during voir dire regarding gangs.

Defendant claims that although gang evidence was not admitted during the first phase of his trial, he was prejudiced because there was a strong implication that defendant was a gang member. He contends that, given the prejudicial and inflammatory nature of the implications of gang membership, the trial courts failure to exclude the evidence from the beginning deprived him of his rights to due process and to a fair trial.

We disagree. As stated by the trial court at the motion for new trial, based on the same argument presented here on appeal, the prospective jurors had to be asked questions regarding their attitudes toward gangs because this was a bifurcated proceeding and the second stage involving the gang allegations was going to be heard by the very jurors being voir dired. (At that time defendant had not waived his right to a jury trial as to the gang allegations.)

There was absolutely no evidence linking defendant to a gang that was presented to the jury. The jury was instructed that statements of counsel are not evidence. In addition, the evidence against defendant was strong, including that defendant was positively identified by four witnesses. Defendant was not prejudiced by the trial courts rulings allowing and then disallowing gang evidence.

V. Sentencing Issues

The trial court sentenced defendant to the upper term of nine years in count 1. That term was enhanced by the aggravated term of 10 years for the gun use enhancement. An additional three years was added for the personal infliction of great bodily injury. Four consecutive one-year terms were added for the prior prison terms. The court imposed a consecutive term of eight months (one-third the mid term) for being a felon in possession of a firearm in count 3, with an additional one-year term for the gang enhancement. The sentence for possession of a firearm in public by an active gang member in count 4 was stayed. Defendants total prison sentence was 27 years, eight months.

Defendant contends the trial court erred in imposing the upper term in count 1, erred in imposing the upper term for the firearm enhancement, erred in imposing a consecutive sentence, and erroneously relied on the same factor to aggravate the assault charge and the firearm enhancement.

Because we have found the gang enhancement is not supported by sufficient evidence, the matter must be remanded to the trial court for further proceedings. Because the trial court must resentence defendant, the remand moots the sentencing questions now raised.

DISPOSITION

The criminal street gang enhancement in count 3 is reversed and the matter is remanded for further proceedings. In all other respects, the judgment is affirmed.

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VARTABEDIAN, Acting P. J.

WE CONCUR:

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WISEMAN, J.

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HILL, J.

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^[1]Count 2 was an alternate crime to count 1; based on the guilty verdict in count 1, defendant was found not guilty in count 2.

^[2]Defendant also claims that to the extent the jail booking records were filled out by jail personnel based on past records and not based on affirmative statements from defendant at the time of his booking the records are irrelevant and insufficient to establish a basis for the experts opinion. Defendant makes this assertion without any further discussion or citation to any authority. We need not address issues raised that do not contain an adequate discussion with citations to pertinent legal authorities.

^[3]All further code references are to the Penal Code unless otherwise noted.