In re Albert C.

Filed 6/25/08 In re Albert C. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A petition was filed, alleging that Albert C., a minor (16 years old at the time of the jurisdictional hearing), came within the provisions of Welfare and Institutions Code section 602. The petition alleged that on September 14, 2007,[1] the minor violated Penal Code section 245, subdivision (a)(1)[2] (assault with a deadly weapon), a felony, and section 186.22, subdivision (a) (street terrorism [hereafter,  186.22(a)]). The petition also contained the allegations that he committed the crime for the benefit of a criminal street gang ( 186.22, subd. (b)(1) [hereafter,  186.22(b)(1)); inflicted great bodily injury during the assault ( 12022.7, subd. (a)); and violated the terms of a prior court order (Welf. & Inst. Code,  777, subd. (a)(1)). After a contested jurisdictional hearing, the court sustained the petition and ordered that the minor be placed in a residential facility.

The minor contends on appeal that the street terrorism count and the gang enhancement cannot be sustained because there was insufficient evidence that one of the primary activities of the gang which allegedly benefited from the minors crimes was the commission of one or more specified felonies; such evidence was required to establish the existence of a criminal street gang under section 186.22, subdivision (f) (hereafter,  186.22(f)). We conclude that there was sufficient evidence supporting a finding of a criminal street gang under that statute. We therefore will affirm the judgment.

FACTS

I. Prosecution Evidence

At approximately 8:00 p.m. on September 14, Edmundo Rodriguez and Skip Prigge, police officers on patrol with the Watsonville Police Department, responded separately to an emergency radio call directing them to the area of Starlight School on Winchester Drive in Watsonville. The victim, Jesus Perez, was lying on the sidewalk, bleeding from the abdomen, elbow, and one of his ears. He had a puncture wound in the abdomen, a smaller puncture wound in his chest, and a deep puncture wound in his elbow. There was a black knife handle with the blade broken off located about five to six feet from the victim.

Officer Prigge responded to the scene about two minutes after receiving the radio call. Before arriving at the location where the victim lay on the sidewalk, Officer Prigge encountered the minor, Albert C., with two females about two blocks away. The officer stopped his patrol car in the middle of the street because he thought that the minor might have been involved in the incident. The two girls were fairly calm. They werent breathing rapidly. They werent sweating. . . . In contrast[, the minor] was nearly out of breath. He was breathing rapidly, he had sweat droplets dripping down his forehead and the sides of his face by his sideburns. Officer Prigge asked the minor if he had been involved in a fight at Winchester Drive. The minor said that he was not involved but he had seen . . . some guys fighting.

Perez testified that he was on his way home that evening from a party and was being driven by his brother. He was wearing a hat that had the initial P. He was dropped off near the school. As he was walking, he saw five or six Hispanic males in a truck. They got out of the truck and started yelling at Perez, who continued walking. He thought that they were members of the Norteo gang because they had their red clothing and it was clear that they were riding around like that. They just told [Perez] to stop. And they said scaredy cat, you girl . . . . Perez ignored them until he realizedbecause they were in front of him and two of them pulled out knivesthat they wanted to hit [him]. Then he ran. The males chased after Perez and caught him from behind. One of the males stabbed him. They said [W]ere going to kill the scrapa dog. Perez said that he thought that scrapa meant trash. He did not know any of his attackers. He was taken to a hospital in Watsonville and later airlifted to San Jose.

Stephen Edwards was sitting near an open window on the night of September 14 when he heard the sound of people running and one person shouting, [G]et that fool. He looked out the window and saw five guys chasing after one guy and basically shouting and yelling [G]et him. (Edwards was about 20 to 30 feet from the group.) They caught up with the one male and began punching him and knocked him to the ground. (The one male did not have a weapon.) Edwards heard one person say,  [S]tab that fool. At that point, Edwards called 911. After the five fled, Edwardss wife went outside to tend to the victim.

After the police arrived and took Edwardss statement, they asked him to look at a person who might or might not have been involved in the incident. Edwards identified the minor to the policeand also made an in-court identification of the minoras having been one of the five who had been chasing the victim and then . . . [was one of the ones] punching and kicking him at various points [while the victim was] on the ground . . . trying to protect himself.[3]

Amanda R. (14 years old) testified that she was walking with a friend, Anna, at Ramsay Park in Watsonville on the night of September 14. The minor met up with the two girls and they walked down Pennsylvania Street towards Annas home. Amanda saw a blue car and heard someone yelling out the window, Caile guey scraps. There was a fight between the occupants of the blue car and the occupants of a red car. Approximately three males got back into the red car; one other male tried to get back in but fell and was left behind. The stranded male started running up the hill by Starlight School; he was being chased by the occupants of the blue car as well as by the minor (who had joined them as the fight had broken up). Amanda guess[ed] that the group caught up with the stranded male.[4] She saw the occupants of the blue car return down the hill and the minor rejoined the two girls at that point.

Detective Eric Taylor, a nine-year veteran on the Watsonville police force, was qualified as a gang expert by the court. He explained that his familiarity with the Hispanic criminal street gang, the Norteos, was based upon numerous gang contacts and work in the field. The Norteos are controlled by members of the California prison gang, Nuestra Familia. Norteo gang members are located throughout the northern part of California. Specifically, there are members of that gang who live throughout the city of Watsonville. Four particular Watsonville subsets of the Norteo gang are City Hall, Varrio Green Valley, North Side Chicos, and Watson Varrio Norte. The Norteo street gang associates itself with [t]he color red, the number 14, XIV, the number 4, [and] the [H]uelga bird. Its primary activities include weapons possession, armed robbery, assault with a deadly weapon, and murder.[5]

The chief rival of the Norteo street gang is the Hispanic street gang, the Sureos. The Mexican Mafia (another California prison gang) controls the Sureos, and they typically come from Southern California and Mexico. Although Norteos control most of Watsonville, the Sureos have dominance over the southwest portion of the city. Encounters between the two rival gangsparticularly where a member of one gang enters into the other gangs territory and is overt in demonstrating affiliation with the rival gangare typically violent. The term scrap (or scrapa) is a derogatory term used by Norteos to describe Sureos. When a Norteo calls a Sureo by that derogatory term, an assault will typically follow, even if the Sureo does not directly respond to the name-calling.

Detective Taylor opined that the attack on Perez was a gang-motivated crime. He based that opinion on a number of factors. He interviewed Perez, who told him that he thought he had been attacked because he had been perceived as having been a Sureo. Although the victim said that he was not a Sureo, Detective Taylor concluded that he was affiliated with that gang because he found photographs on Perezs cell phone that were indicative of the victim being a Sureo.[6] Detective Taylor testified that Perez was not cooperative during the interview; noncooperation by a gang member with the police was consistent with gang membership, even when the gang member was the victim of an assault by a rival gang. As another reason for his opinion that the attack was gang-related, Detective Taylor noted that Perez told him that he had been referred to as a scrapa or a scrap and that he also heard the suspect saying Were going to kill this scrap.  This was a direct statement as to the reason he was being attacked [was] because he was perceived as a Sureo.

Detective Taylor also opined that the minor was an active participant in a criminal street gang. He based this opinion not only on the attack on Perez and the minors admission that he was a gang member, but also on the minor [(1)] tagging Norteo gang slogans on the wall of Watsonville High School . . . [(2) having been] involved in the chase . . . of a Sureo gang member [and the vandalism of his home,] . . . [(3)] calling the witnesses and victim scrapas and [(4) having] told the officer Fuck the fucking scraps . . . .

II. Defense Evidence

James Hernandez, Ph.D., is a professor of criminal justice at California State University, Sacramento. Dr. Hernandez was qualified as an expert by the court on general issues related to gang activity.[7] He opined that the misconduct of the minor reported in the gang packet produced by Detective Taylor did not necessarily reflect gang activity: [T]he number of activities does not necessarily reflect on gang activity. It may reflect on youthful activity and sometimes there[ are] some real differences with that. So . . . youre putting gang labels on everything thats done, and that may not necessarily . . . reflect whats actually occurring. Dr. Hernandez testified that he was unable to conclude that the Perez assault was a gang-related activity. And he concluded that although there were certain characteristics . . . common with being a gang member, there was nothing definitive that the minor was a gang member.[8]

On the evening of September 14, Anna M. was with her friend, Amanda. At about 8:00 p.m., they met up with the minor (Annas boyfriend) on Pennsylvania Street. Anna observed a gray Mazda drive down the street; the occupants yelled scrap. (She thought that the comment had something to do with Sureos.) A second car that may have been a Honda pulled next to the Mazda in the middle of the street; the occupants got out and the two groups started fighting with each other. (The two girls and the minor stood where they were and didnt say anything.) The group from the Honda got back in their car and left; however, they stranded one of the occupants. The group from the Mazda had to have still been there, but Anna didnt see them.

The stranded male from the Honda approached the minor and the two girls with a knife. The minor pushed Anna out of the way and told the two girls to run. The two girls ran up the hill towards Starlight School. Anna saw the minor (who was unarmed) push the stranded male to the ground. The minor eventually caught up with the two girls.

Jack de la Torre, a mental health clients specialist with Santa Cruz County Childrens Mental Health, provided counseling to the minor for approximately one year. He testified that young members of gangs tag . . . [by] writ[ing] gang monikers or drawings or XIV or whatever . . . in their books, on their pages, on their wallets, or the inside of their hats, on their clothing, [or] on their shoes. He had never seen any instance of Albert tagging or wearing gang-related clothing.

PROCEDURAL BACKGROUND

On September 18, the Santa Cruz County District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a) with the juvenile court below, alleging that the minor, on or about September 14, committed a felony by assaulting Jesus Perez with a deadly weapon (a knife) in violation of section 245, subdivision (a)(1) (count 1). The minor was also charged with street terrorism, a felony ( 186.22, subd. (a); count 2). The petition also contained the allegations that the minor inflicted great bodily injury during the assault ( 12022.7, subd. (a)); committed the crime for the benefit of a criminal street gang ( 186.22(b)(1)); and violated the terms of a prior court order (Welf. & Inst. Code,  777, subd. (a)(1)).

After a three-day jurisdictional hearing, on October 12, the court sustained the petition as to counts 1 and 2 and also found true the gang allegation.[9] The court on November 2 continued the minor as a ward of the court and ordered that he be in 24-hour placement. The minor filed a timely notice of appeal.

DISCUSSION

I. Sufficiency of Evidence Supporting Count 2 and the Gang Enhancement

A. The Minors Contentions

The minor argues that there was insufficient evidence to support the conclusion by the prosecution expert, Detective Taylor, that the Norteos were a criminal street gang. Specifically, the minor challenges as being too conclusory the experts opinion that one of the primary activities of the Norteos was the commission of specified felonies as required to establish them as a criminal street gang. Relying principally on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), the minor urges that the evidence was not sufficient to show, as required under  186.22(f), that one of the Norteos primary activities was the commission of one or more of the felonies enumerated under section 186.22, subdivision (e) (hereafter,  186.22(e)). Accordingly, the minor contends that since it was not established that the Norteos were a gang, both the jurisdictional finding of street terrorism ( 186.22(a)) and the gang enhancement ( 186.22(b)(1)) cannot stand.[10]

B. Standard of Review

Our determination of whether substantial evidence supports the judgment is based upon whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; see also People v. Johnson (1980) 26 Cal.3d 557, 576.) In making this determination, the appellate court 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. [Citations.] . . . . [O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record . . . . Second, we must judge whether the evidence of each of the essential elements . . . is substantial . . . . [Citation.] (People v. Barnes (1986) 42 Cal.3d 284, 303; see also People v. Guerra (2006) 37 Cal.4th 1067, 1129.) Evidence, to be substantial must be of ponderable legal significance . . . reasonable in nature, credible, and of solid value. [Citations.] (People v. Johnson, supra, at p. 576.)

This sufficiency-of-the-evidence standard applicable in reviewing convictions applies to a challenge to a true finding on a gang enhancement. (See People v. Vy (2004) 122 Cal.App.4th 1209, 1224 (Vy); People v. Ortiz (1997) 57 Cal.App.4th 480, 484 [appellate courts role is limited].) Accordingly, we apply that same standard in evaluating the minors claim here.

C. Applicable Law

One of the components of the California Street Terrorism Enforcement and Prevention Act ( 186.20 et seq. (STEP Act)) at issue here is section 186.22(b)(1), which provides for a sentence enhancement where the felony was committed for the benefit of, at the direction of, or in association with any criminal street gang, with a specific intent to promote, further, or assist in any criminal conduct by gang members.[11] There are therefore three main aspects of this gang enhancement, namely, that the crime was (1) committed for the benefit of, at the direction of, or in association with (2) any criminal street gang, as defined by the statute, and (3) the defendant committed the crime with the specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22(b)(1); see also People v.Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley).)

The other STEP Act provision relevant here, section 186.22(a), makes street terrorism, i.e., the active participation in felonious conduct by a street gang, a separate criminal offense. (In re Jose P. (2003) 106 Cal.App.4th 458, 466.)[12] The elements of the offense of participation in a criminal street gang are: (1) the existence of a criminal street gang; (2) defendants active participation in that gang; (3) defendants knowledge that its members engage in or have engaged in a pattern of criminal gang activity; and (4) defendants willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. (In re Lincoln J. (1990) 223 Cal.App.3d 322, 327, quoting  186.22(a).) [A] person actively participates in any criminal street gang, within the meaning of section 186.22(a), by involvement with a criminal street gang that is more than nominal or passive. [Citation.] (People v. Castaneda (2000) 23 Cal.4th 743, 752.) Thus, the street terrorism offense ( 186.22(a)) and the gang enhancement ( 186.22(b)(1)) share the common element of proof of a criminal street gang as defined under the STEP Act. (In re Jose P., supra, at p. 466.)

The term criminal street gang is defined under section 186.22(f).[13] The prosecution must show that the [criminal street] gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a pattern of criminal gang activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called predicate offenses) during the statutorily defined period. (Gardeley, supra, 14 Cal.4th at p. 617.) Our Supreme Court has held that [t]he phrase primary activities, as used in the gang statute, implies that the commission of one or more of the [28 crimes enumerated in section 186.22, subdivision (e)[14]] is one of the groups chief or principal occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the groups members. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) In determining the primary activities element, the factfinder may consider evidence of past and present conduct of gang members consisting of any of the enumerated offenses. (Ibid.; see also People v. Galvan (1998) 68 Cal.App.4th 1135, 1140.)

Without questionand as the Supreme Court has recently reiteratedthe prosecution may utilize expert testimony concerning criminal street gangs to establish the elements of a gang enhancement. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) Matters beyond the common experience of jurors, such as the culture and habits of criminal street gangs, are properly the subject of expert testimony. (Gardeley, supra, 14 Cal.4th at p. 617; see also People v. Valdez (1997) 58 Cal.App.4th 494, 506.) For example, the Supreme Court held recently that [w]hether members of a street gang would intimidate persons who testify against a member of that or a rival gang is sufficiently beyond common experience that a court could reasonably believe expert opinion would assist the jury. (People v. Gonzalez (2006) 38 Cal.4th 932, 945; see also People v. Duran (2002) 97 Cal.App.4th 1448, 1464 (Duran) [expert testimony concerning individuals gang membership proper].) And as the Gardeley court noted, those matters are of particular relevance (Gardeley, supra, at p. 617) where there is an allegation that the crime was committed for the benefit of, at the direction of, or in association with any criminal street gang. ( 186.22(b)(1).)

D. Sufficiency of Evidence of Gangs Existence

The minor argues that the jurisdictional findings that he committed street terrorism and that the aggravated assault was carried out for the benefit of a criminal street gang must be reversed. He asserts that the evidence was insufficient to support the conclusion essential for both findings, namely, that the Norteos were a criminal street gang by reason of one of their primary activities being the commission of a crime or crimes enumerated in section 186.22(e). We reject that claim of error.

In support of our conclusion, we rely on several decisions in which proof of the existence of a criminal street gang was established, as was the case here, through expert testimony. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324 [expert testimony may serve as sufficient evidence for primary activities finding].) For example, in Gardeley, supra, 14 Cal.4th at page 612, a police detective with 23 years of experience in investigating criminal street gangs testified that one of the primary activities of the Family Crip gang was narcotics sales and other violent acts in furtherance of those drug sales. He based that expert opinion upon hundreds of gang-related offenses he had investigated, conversations with gang members, and information collected from other officers. (Ibid.)  The Supreme Court concluded that there had been sufficient proof of the primary activities element of section 186.22(f). (Gardeley, supra, at p. 620.)

Similarly, in Duran, supra, 97 Cal.App.4th at page 1455, a 10-year veteran of the police force opined that the charged crimes (two armed robberies) had been committed for the benefit of a criminal street gang, the Florencia 13. The appellate court, citing, inter alia, Gardeley, supra, 14 Cal.4th 605, held that expert testimony in support of a gang allegation was proper and that a gang expert could properly 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.] (Duran, supra, at pp. 1463-1464.) The appellate court therefore held that the prosecution had established the primary activities element through expert testimony that consisted of reliance on the experts field experience gathering gang intelligence, contacts with gang members, investigations of gang crimes, and gang information obtained from colleagues. (Id. at p. 1465.) In so holding, the court rejected the defendants argument that the expert had not established the primary activities element because he had testified that putting fear into the community (id. at p. 1464)which was not a crime enumerated under section 186.22(e)was the gangs primary activity; the court rejected this narrow reading of the experts testimony and concluded that the evidence showed that the gang instilled fear in the community by committing crimes of robberies, assaults with deadly weapons, and narcotics sales, crimes that were specified in the gang statute. (Duran, supra, at p. 1465.)

And in Vy, supra, 122 Cal.App.4th 1209, we reviewed the defendants sufficiency-of-the-evidence challenge to the gang enhancement finding. We acknowledged that there had been no evidence that the Vietnamese gang, Young Asians, had committed any predicate crimes enumerated under section 186.22(e) for the first two years of its existence. (Vy, supra, at p. 1224.) We nonetheless concludedbased upon testimony from a gang expert (id. at p. 1226)that evidence that Young Asians gang members had committed three serious, violent crimes (including the charged attempted murder) over less than three months was sufficient to satisfy the primary activities element of the gang enhancement. (Id. at p. 1225.)

In this case, evidence in support of the primary activities element was offered through the testimony of Detective Taylor, who had been with the Watsonville Police Department for approximately nine years. Detective Taylor had held at least two assignments with the department in which his emphasis was gang crime. As of the time of trial, his responsibilities were to follow up on all gang cases, including conducting interviews, contacting gang members, and reviewing gang reports and field interview cards. Detective Taylor served also as a field training officer in which he provided instruction to new officers in the area of gang crimes. During his career, he had had contact with over 550 gang members, investigated over 150 gang crimes, and acted as lead investigator in over 75 gang crimes. He spoke Spanish, grew up in Watsonville, and could recognize by sight an estimated one hundred gang members living in Watsonville.

Detective Taylor testified that he was familiar with the Norteos through his gang contacts in Watsonville, and through training through the department. It was his opinion that the Norteos are a criminal street gang within the meaning of section 186.22(f), and that they are located throughout Watsonville. Detective Taylor testified that one of the primary activities of the Norteos was the commission of the enumerated felonies under [section] 186.22(f), up to and including weapons possession, armed robbery, assault with a deadly weapon, [and] murder. At least the last three of those offenses are among those specified in section 186.22(e) for purposes of establishing the primary activities prong. (See fn. 14, ante.)[15]

In further support of his opinion that the Norteos are a criminal street gang, Detective Taylor offered evidence of two past gang crimes occurring in Watsonville. (See, e.g., Gardeley, supra, 14 Cal.4th at p. 613 [testimony regarding past gang crimes offered in support of gang experts opinions]; Vy, supra, 122 Cal.App.4th at p. 1225 [same].) He testified, based upon reference to the gang packet he produced at trial and to the criminal conviction introduced into evidence, that on March 30, Francisco Vasquez attempted to rob someone; Vasquezs announcement during the act, Puro Norte, Puro City Hall, was an obvious reference to the offenders affiliations with the Norteo gang and with City Hall, the Watsonville Norteo subset. Vasquez was convicted of attempted robbery, street terrorism, and a gang enhancement. Detective Taylor also described a robbery committed earlier in 2007 by Richard Martinez; a number of Norteo writings as well as some weapons were recovered by the police in a traffic stop that occurred just after the robbery. Martineza member of the Northside Chicos, a Norteo subsetwas convicted of assault with a deadly weapon, robbery, and street terrorism; a certified copy of that criminal conviction was introduced into evidence.

Consonant with the above cited cases (see Gardeley, supra, 14 Cal.4th 605; Vy, supra, 122 Cal.App.4th 1209; Duran, supra, 97 Cal.App.4th 1448), the above plainly constituted sufficient evidence in support of the courts finding that the primary activities element necessary for both the street terrorism charge and the gang enhancement had been satisfied. Detective Taylor was eminently qualified to testify as a gang expert. He had over nine years of experience; held at least two assignments emphasizing gang crime; been personally involved in gang investigation training of other officers; and investigated over 150 gang crimes. Indeed, the minors counsel did not object to Detective Taylors qualifications as a gang expert. (See Duran, supra, 97 Cal.App.4th at p. 1463 [noting that the defendant did not challenge gang experts qualifications].) The expert here opined that one of the primary activities of the Norteos was the commission of three crimes enumerated under section 186.22(e)armed robbery, assault with a deadly weapon, and murder. He offered further support for that opinion by describing two specific crimes committed in Watsonville by Norteos prior to the commission of the charged offense. In addition to these two prior gang crimes, the charged assault with a deadly weaponwhich Detective Taylor, based upon substantial evidence, opined was a gang-related attack by Norteos against a rival Sureocould also have been considered in finding that one of the primary activities of the Norteos was the commission of one or more of the offenses enumerated in section 186.22(e). (People v. Sengpadychith, supra, 26 Cal.4th at p. 323.)

The minors reliance on Alexander L., supra, 149 Cal.App.4th 605 is misplaced. In that case, the gang enhancement was based upon testimony of a gang expert whose qualificationsat least as reported in the caseconsisted of nothing more than being a peace officer working in the gang enforcement unit for an unspecified period of time. (Id. at p. 609.) This was in sharp contrast to the qualifications of the gang expert established here. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [noting extensive training and experience of gang expert there in distinguishing case from Alexander L.].) The expert in Alexander L. opined that Varrio Viejo was an active street gang but offered no specifics as to the basis for that opinion. (Alexander L., supra, at p. 611.) And when questioned about the primary activities of Varrio Viejo, the expert did not directly state an opinion that those primary activities included the commission of one or more of the crimes enumerated in section 186.22(e). Rather, he statedwithout identifying the basis for his knowledge or providing the details of any particular crimesthat I know theyve committed quite a few assaults with a deadly weapon, several assaults. I know theyve been involved in murders. [] I know theyve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations. (Alexander L., supra, at p. 611.) Because the expert provided no specifics of any crimes, failed to state the source of any information, and never directly testified that the commission of statutorily enumerated crimes constituted one of Varrio Viejos primary activities, the appellate court concluded that there was insufficient evidence that the primary activities prong essential to proving the existence of a criminal street gang had been established. (Alexander L., supra, 149 Cal.App.4th at pp. 611-612.)

Here, Detective Taylors testimony was unequivocal that one of the Norteos primary activities was the commission of one or more of the offenses enumerated in section 186.22(e). That testimony was supported both by evidence establishing the officers expertise in the investigation of gang crimes and evidence of three specific gang crimes. The circumstances are dissimilar to those presented in Alexander L., and we conclude that that case, which was decided on its individual facts, does not suggest that the evidence here was insufficient to support the street terrorism charge or the gang enhancement. (See People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 [distinguishing Alexander L. and concluding that gang experts testimony was specific enough and had adequate foundation to serve as basis for gang enhancement].)

After our review of the entire record, we conclude that there was substantial evidence that the Norteos were a criminal street gang within the meaning of section 186.22. Accordingly, we reject the minors sufficiency-of-the-evidence challenge to the courts jurisdictional findings of street terrorism and that the minor committed the offense for the benefit of a criminal street gang.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Rushing, P.J.

McAdams, J.

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[1] All further date references are to the year 2007 unless otherwise specified.

[2] All further statutory references are to the Penal Code unless otherwise noted.

[3] In his opening brief, the minors counsel stated that [Edwards] identified [the minor] as one of the attackers, but was certain [the minor] was not the individual he saw stabbing [Perez]. Neither the portions of the reporters transcript cited by the minors counsel nor the rest of the transcript support the categorical statement that Edwards stated that the minor was not the one who stabbed the victim.

[4] Detective Taylor testified that during an interview conducted sometime after the incident, Amanda told him that she, in fact, saw a second fight break out at the top of the hill.

[5] This particular opinion of Detective Taylor is the subject of the instant appeal and will be discussed more fully, post.

[6] One photo showed Perez wearing a hat with a P on itsignifying a Sureo subset in Watsonville, Poorside Watsonvilleand also making a sign with his left hand consistent with flashing a gang sign. Another photo depicted a bluethe traditional Sureo colorbackground with the word Sur. A third photo depicted Perez with a blue bandana around his neck.

[7] Dr. Hernandez did not claim expertise concerning Hispanic gangs in Santa Cruz County and was therefore not qualified as an expert concerning local gangs.

[8] Dr. Hernandez testified on cross-examination that, although it was not definitive that the minor was a gang member or associate, the Perez attackcoupled with two prior incidents involving the minor spraying Norteo gang slogans at school and chasing a Sureo and vandalizing his homewas consistent with gang activity, but not only gang members stab and chase.

[9] On the prosecutions motion, the court struck the great bodily injury allegation ( 12022.7, subd. (a)) at the jurisdictional hearing. The court apparently did not make a finding concerning the allegation that the minor had violated the terms of a court order (Welf. & Inst. Code,  777, subd. (a)(1)).

[10] For the first time in his reply brief, the minor argues that Detective Taylors testimony did not establish the existence of a criminal street gang because he only offered testimony generally concerning the enormous Hispanic umbrella gang organization called Norteo, described two predicate offenses committed by members of two different subset gangs located in Watsonville, and never established precisely what subset Norteo gang to which the minor belonged. We need not address this new argument. Normally, a contention may not be raised for the first time in a reply brief. [Citation.] (People v. Peevy (1998) 17 Cal.4th 1184, 1206.) We note in passing, however, that to the extent that the minors claim of error is based upon any failure of the prosecution to establish the precise subset of the Norteos to which he belonged, that argument is without merit; no such proof is required. (People v. Ortega (2006) 145 Cal.App.4th 1344, 1356-1357.)

[11] [A]ny 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 a 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: [] (A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the courts discretion. [] (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years. [] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years. ( 186.22(b)(1).)

[12] Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. ( 186.22(a).)

[13] As used in this chapter, criminal street gang means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. ( 186.22(f).)

[14] The 28 crimes that may serve as the basis for the primary activities finding necessary to conclude under section 186.22(f) that a criminal street gang exists are listed in section 186.22(e): (1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245. [] (2) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1. [] (3) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1. [] (4) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code. [] (5) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246. [] (6) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034. [] (7) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13. [] (8) The intimidation of witnesses and victims, as defined in Section 136.1. [] (9) Grand theft, as defined in subdivision (a) or (c) of Section 487. [] (10) Grand theft of any firearm, vehicle, trailer, or vessel. [] (11) Burglary, as defined in Section 459. [] (12) Rape, as defined in Section 261. [] (13) Looting, as defined in Section 463. [] (14) Money laundering, as defined in Section 186.10. [] (15) Kidnapping, as defined in Section 207. [] (16) Mayhem, as defined in Section 203. [] (17) Aggravated mayhem, as defined in Section 205. [] (18) Torture, as defined in Section 206. [] (19) Felony extortion, as defined in Sections 518 and 520. [] (20) Felony vandalism, as defined in paragraph (1) of subdivision (b) of Section 594. [] (21) Carjacking, as defined in Section 215. [] (22) The sale, delivery, or transfer of a firearm, as defined in Section 12072. [] (23) Possession 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. [] (24) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422. [] (25) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code. [] . . . [] (31) Prohibited possession of a firearm in violation of Section 12021. [] (32) Carrying a concealed firearm in violation of Section 12025. [] (33) Carrying a loaded firearm in violation of Section 12031.

[15] Although Detective Taylors reference to weapons possession is too nonspecific to make a correlation with any of the enumerated crimes, firearms possession under certain circumstances may serve as a predicate crime to establish the primary activities element. (See  186.22(e)(23), (31), (32), (33).)