In re D.M.

Filed 12/30/08 In re D.M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Juvenile Court Commissioner.

Gregory L. Cannon, 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, Senior Assistant Attorney General, David A. Rhodes and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant D.M. (born 1991) was adjudged a ward of the court after the juvenile court found true the allegations that he committed count I, felony assault by means of force likely to produce great bodily injury (Pen. Code,^[1] 245, subd. (a)(1)) with a gang enhancement ( 186.22, subd. (b)(1)), and count III, misdemeanor battery ( 242). On appeal, he contends the testimony of the prosecutions gang expert lacked sufficient foundation because it was based on speculation and unreliable hearsay. He further asserts the gang enhancement is not supported by substantial evidence because the prosecution failed to prove appellants membership in a specific gang, and that the primary activities of such a gang were the criminal offenses enumerated by statute. Finally, he contends the gang enhancement must be stricken because of a pleading error in the juvenile petition. We will affirm.

FACTS

Count III--Misdemeanor Battery

On September 25, 2006, N.J. and F.H. were walking home from high school in Farmersville when they encountered appellant near N.J.s house. Appellant appeared to be waiting for them. F.H. realized that they had seen appellant the previous day, when he stared at N.J. and shouted things at him as they walked to the store.

As N.J. and F.H. continued walking, appellant stared at N.J. and accused him of doing things behind his back. N.J. tried to ignore appellant and kept walking. Appellant grabbed N.J. and turned him around. Appellant hit N.J. with a closed fist on the left side of his face near the eye, threw him to the ground, and kicked him several times.

F.H. said he was going to stop the fight, but a friend of appellants was there and held back F.H. as appellant continued to hit N.J. N.J. got up and put appellant in a headlock but appellant hit N.J. and broke free. N.J. tried to run away, but appellant caught him and threw him to the ground. A car appeared in the area and appellant and his friend ran away. N.J. suffered abrasions and scrapes on both arms and swelling and bruising around his eye.

N.J. contacted a police officer and identified appellant as the suspect. The officer later interviewed appellant, who admitted he knew N.J. but denied knowledge of the altercation. The officer noticed appellants knuckles were red and swollen, consistent with a recent fight.

Count I--Felony Assault and the Gang Enhancement

On the afternoon of April 9, 2007, R.N.1 (a female), R.N.2, and J.S. were walking home in Farmersville when they saw appellant, C.P. and another boy riding their bicycles. Appellant and his companions noticed J.S. and stopped their bicycles within a few feet of him. Appellant said youre so bad to J.S., and mentioned something about a past fight.

R.N.1 testified that appellant and C.P. asked if they were scrap[s]. R.N.1 replied that they did not gang bang. J.S. testified they wanted to fight him and kept saying things like this is Farmas and Norte, which J.S. knew meant a Norteno thing, and that appellant and C.P. were northerners. Appellant and C.P. also said, Didnt we tell you that you cant be walking down the street anymore?

J.S. did not respond to their taunts. Appellant and C.P. got off their bicycles and said something like whats up now[?] Appellant and C.P. threw their bicycles at J.S. J.S. put up his hands to block the bicycles, and one landed at his feet and the other hit his arm and chest.

J.S. said he did not want problems, and he kept walking and crossed the train tracks. Appellant and C.P. followed him. C.P. threw rocks pretty hard at J.S.s head, and hit his chest two or three times. Appellant found a stick or tree branch, about two feet long and two inches thick, and hit J.S. several times. J.S. fell on his back then got up, and appellant swung the stick back and forth as J.S. tried to dodge both the stick and the rocks.

R.N.2 testified that in the midst of the fight, appellant and/or C.P. said XIV, like, stay off my streets, and north side. R.N.2 knew the terms meant red. R.N.1 testified that appellant and C.P. kept yelling things at J.S., and she shouted at them to leave him alone and threatened to call the police. Appellant and C.P. yelled Norte and they left with their bicycles. R.N.1 believed that as they left, C.P. said, He shouldnt be walking the streets.

J.S. suffered a large bump on the back of his head. He had a tire tread pattern and welts on his left forearm, and scratches and welts on his left wrist. There was swelling and redness to the upper right portion of his abdomen, and swelling and bleeding on his right forearm. An officer later contacted appellant and C.P. Appellant declined to make a statement and C.P. denied any involvement in the fight.

R.N.2 testified that J.S. did not claim gang membership but he associated with J.S.2, who was in the Sureno gang. J.S. testified he was not in a gang but admitted he associated with someone who was in the Sureno gang.

J.S. testified that he had two previous encounters with appellant. The first incident occurred about a month before the assault, when J.S. and appellant were with two separate groups of people at a park, and the two groups were throwing rocks at each other like a rumble. The second incident occurred just a few days before the assault, when appellant approached J.S. and asked if he gang bang[ed], and J.S. said no. Appellant then asked why he dressed a certain way, but J.S. was not wearing any gang colors. J.S. testified he was present during another incident where C.P. jumped one of his friends at school.

Testimony of Gang Expert

As to count I, appellant and C.P. were alleged to have committed felony assault by means of force likely to produce great bodily injury on J.S., with a gang enhancement. Officer Mathew Sanchez testified as the prosecutions gang expert.^[2] Officer Sanchez had been the gang officer for the Farmersville Police Department for four years and was a member of the Tulare County Gang Task Force.

Sanchez testified he was familiar with gang activities in Farmersville and all through Tulare County. Sanchez also relied upon the expertise of two other officers who served as gang experts in Farmersville. In addition, he relied upon school reports as to the gang activities of juveniles:

When I deal with the younger offenders, they have not had the opportunity to commit the number of crimes as the older offenders so what I do is I contact reliable sources, such as probation officer who works the school, who talks to the kids, who knows whats going on. Ill talk to the principals. Ill talk to the teachers and figure out what the student is doing. Ill pull their discipline records in regards to fights, why they were fighting, if theyve gone to gang awareness classes, whether the fight was gang related, have they been cited for wearing gang related attire, have they been served the gang school gang notice, and Ill talk to the teachers personally and see whats going on with the kids.

Sanchez testified the southern Hispanic gangs created the Mexican Mafia in the 1950s, to control illegal activities on the streets and in the prisons. In the 1960s, the northern Hispanic gangs created the Nuestra Familia as protection against the southern gangs. These gangs initially had their turfs in northern and southern California and in the prisons.

Sanchez explained that as prisoners were released to their communities, they formed street gangs which operated under the umbrellas of their original prison gangs, regardless of which geographic area they lived in. There were northern gangs in nearly every city in Tulare County. In Farmersville, the northern gang was known as VFC, the Barrio Farmas Catorce, and there were northern gang members living all over town. The Norteno or northern gang in Visalia was known as NSV. Sanchez testified that if a member of either VFC or NSV went to prison, that person would operate under the Nuestra Familia umbrella.

Sanchez testified there was a hierarchy within the Norteno gang, so that everyone answered to validated members of Nuestra Familia in prison. Theres ranks, theres captains ... you go up in the ranks in the Nuestra Familia. There are soldiers. Also, people who do hits, people who shoot people, things like that, who fight the war between northern and southern gangs in the prison system.

Sanchez testified there were thousands of Norteno gang members in Tulare County. He had spoken to over 200 Nortenos and investigated numerous Norteno-related crimes. He explained that most of the violent crimes in the area were gang-related, and the types of crimes committed by members of the Norteno gang were homicides, attempted homicides, batteries, property crimes, and thefts. The more violent crimes in Farmersville were committed by the up and coming gang members because they have to prove themselves or theyre trying to make a name for themselves, and the younger guys commit the shootings, assault with a deadly weapon, things like that. Theyll fight in school trying to make a name for themselves.

Sanchez testified the Nortenos, northern gangs, and Nuestra Familia all identified with the color red and the number 14, which represents N, the 14th letter of the alphabet. Norteno gang graffiti was a big problem all over Farmersville, displayed as X4, meaning 14, XIV, Norte, and Norteno gang members used hand signs to display the number four. Farmas was a term used by the Nortenos to describe their Farmersville turf.

In Tulare County and Farmersville, the southern gang affiliates were the primary rivals of the Norteno gangs. Sanchez explained that northern gangs had been predominant in Farmersville until a recent influx of southern gang members, known as the Southside Kings. Scraps was a derogatory term used by Nortenos for southern gang members.

Sanchez testified about crimes committed by northern gang members in Farmersville. On November 25, 2006, a northern gang affiliate was murdered in Farmersville, and on December 13, 2006, two members of the southern gang were shot. It goes back and forth as sort of a retaliation type deal. In 2007, Johnny Garcia, an admitted VFC Norteno member, was convicted of vandalism with a gang enhancement and sentenced to 20 years, after he vandalized a market in Farmerville and wrote X4 in huge letters on the store walls. Rolando Gutierrez, another Norteno gang member, saw southern gang members enter a market, retrieved his revolver, and waited for the subjects to leave the store. One person walked out who had blue shoelaces. Gutierrez demanded the persons shoes, the person laughed, and Gutierrez shot him in the neck, leaving him paralyzed. Sanchez introduced certified abstracts of judgment as to the Garcia and Gutierrez convictions.

Sanchez testified there was a definite problem with gangs in the Farmersville schools, as a result of the influx of southern gang members into the area. The schools were spray-painted with gang graffiti and monikers, and there were specific parts of the grounds where Norteno and Sureno members congregated. [I]ts a small town so its not hard to figure out whos doing what as far as gang activity, whos hanging out with who and people talk.

Sanchez reviewed appellants school disciplinary records, compiled by members of the school staff, spoke to the schools probation officer, and learned about appellants involvement in the following activities. There were notes from the school staff stating that on September 15, 2005, appellant got into a fight during a school break. Appellant was wearing red clothes, a Norteno color, and was told not to wear red clothes to school anymore.

On September 3, 2006, appellant was wearing red clothes at school, and a red ring on the fourth ringer of his left-hand, which signified the number 14. A member of the school staff completed a gang profile sheet about appellant, stating that he was a northern gang member. On September 14, 2006, appellant was found in possession of a red handkerchief, a northern gang identifier, which was confiscated by the schools probation officer. He was placed on a behavioral contract and again advised not to wear the color red at school. Sanchez testified that appellants display of the red handkerchief was like stating, Hey, Im flying my flag. Im a northerner.

Appellants school records showed that on September 26, 2006, he was in a physical altercation and punched and kicked the victim to the ground. A witness reported the fight was gang related and motivated. On October 10, 2006, school officials recommended appellants expulsion from school and placement at Tulare County Community School, and for him to receive anger management counseling and gang awareness classes.

Officer Sanchez arrested appellant at school based upon the instant juvenile petition. Appellants teacher stated that appellant was a known northern gang member and frequently talked about the color red and the number 14. His teacher heard appellant say that he has soldiers out in the streets, referring to fellow gang associates who fight with rival gang members.

Sanchez also reviewed C.P.s school records, which revealed that he regularly claimed affiliation with the Nortenos and VFC, and fought with students associated with the southern gang.

Sanchez testified that J.S., the victim in the felony assault in count I, associated with J.S.2, a known southerner who was a suspect in a drive-by shooting of a Norteno. Even though J.S. was not a member of a gang, he was affiliated with the southerners through his friendship with J.S.2, and he would have been considered an enemy to the rival northern gang.

Sanchez testified that based upon the activities and contacts of appellant and C.P., along with his own personal observations, they were both active members of the Norteno gang. Based upon a hypothetical similar to the assault upon J.S., Sanchez testified such an assault was gang-related, based upon the gang slurs and phrases used during the incident. It was intended to benefit the Nortenos by showing the gangs dominance and intimidation on the streets of people associated with the southern gang, and the perpetrators were trying to make names for themselves within the Nortenos as up-and-coming gang members challenging rivals.

On appeal, appellant contends Officer Sanchezs testimony should have been stricken as based upon unreliable hearsay and speculation, that there is insufficient evidence to support the gang enhancement, and the enhancement must be stricken because of a pleading error.

DISCUSSION

I. Admissibility of the gang experts testimony.

Appellant contends the courts true finding on the gang enhancement must be reversed because there was insufficient foundation for Officer Sanchezs testimony as the prosecutions gang expert, and that Sanchez relied on unreliable and speculative hearsay in appellants school records as the basis for his opinion that appellant was a member of a gang.

To establish that a group is a criminal street gang within the meaning of section 186.22, subdivision (b)(1), the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the groups primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the groups members must engage in, or 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. ( 186.22, subd. (f); People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley); People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran).) The crimes necessary to establish a pattern, however, need not be gang-related. (Gardeley, supra, 14 Cal.4th at pp. 621-623.)

It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. (People v. Valdez (1997) 58 Cal.App.4th 494, 506 (Valdez); People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez); In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) [E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendants gang affiliation--including evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like--can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)

The subject matter of the culture and habits of criminal street gangs meets the criteria for the admission of expert testimony because such evidence is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Gardeley, supra, 14 Cal.4th at p. 617; Frank S., supra, 141 Cal.App.4th at p. 1196.) The expert testimony may address the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendants membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations]. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657, fns. omitted (Killebrew).)

Evidence Code section 802 provides, in pertinent part, that [a] witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter ... upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. Expert testimony may be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions and is reliable. (Gardeley, supra, 14 Cal.4th at p. 618.) If the threshold requirement of reliability is met, even matter that is ordinarily inadmissible can form the proper basis for an experts opinion testimony. (Ibid., italics omitted; see also Duran, supra, 97 Cal.App.4th at p. 1463.) Since Evidence Code section 802 permits an expert witness to state on direct examination the reasons for his opinion and the matter ... upon which it is based, an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. (Gardeley, supra, 14 Cal.4th at p. 618.)

Thus, an officer testifying as a gang expert, just like any other expert, may give testimony that is based on hearsay, including conversations with gang members as well as with the defendant. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith); Gardeley, supra, 14 Cal.4th at p. 620; People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9 (Vy).) A gang experts opinion may also be based upon the experts personal investigation of past crimes by gang members, and information about gangs learned from the experts colleagues or other law enforcement agencies. (Sengpadychith, supra, at p. 324; Gardeley, supra, p. 620; Vy, supra, at p. 1223, fn. 9.)

Appellant contends Officer Sanchezs expert testimony lacked foundation because it was based on inadmissible and speculative hearsay. Appellant points to Sanchezs reliance on appellants school records, and argues there was no evidence as to the reliability of the descriptions of incidents contained in those records, the reliability of the school staff members who made the various entries, and whether those staff members had any specialized training to recognize gang activity on campus. As set forth ante, however, Officer Sanchez testified at length as to the reasons he relied upon the school records of minors involved in gang activities, particularly as to minors who had not been arrested or faced juvenile petitions. Sanchez explained that the local schools had serious problems with students involved with gangs, particularly with Nortenos who were challenging the newly-arrived students who were affiliated with the southern gangs. Sanchez testified that school administrators, vice-principals, teachers, counselors, and other staff members were in unique positions to know about the gang activities on their campuses. As to appellants school records, Sanchez testified as to the notations for each entry and, as applicable, recited the school official who had written the entries. Each notation was dated and fairly specific as to appellants activities, and reflected his repeated conduct in claiming affiliation with the Norteno and northern gang, the color red, and the number 14, and his boasts of having soldiers in the street to fight rival gang members.

Given Officer Sanchezs extensive explanation as to the nature and circumstances of appellants school records, and the unique position of school counselors and staff members to observe and identify students who were affiliated with the northern and southern gangs, there was sufficient foundation for the trier of fact to rely upon Sanchezs expert opinion as to the existence and activities of the Norteno and northern gangs in Farmersville, and appellants extensive involvement with that gang. Therefore, Sanchezs reliance upon hearsay did not require the striking of his testimony.^[3]

II. Substantial evidence of the gang enhancement.

Appellant next contends the courts true finding on the gang enhancement must be reversed because there is insufficient evidence of the existence of a Norteno gang, and there was no evidence that the gangs primary activities were specific criminal acts as required by section 186.22, subdivision (b)(1).

In assessing whether there is substantial evidence to support a judgment sustaining a juvenile petition that alleges criminal conduct, we apply the same standard of review used in adult criminal appeals. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) We similarly apply the same deferential standard of review in determining whether a true finding on a gang enhancement is supported by substantial evidence. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322 (Villalobos).) The trier of fact may rely upon expert testimony about gang culture and habits to reach a finding on the gang allegation. (Ferraez, supra, 112 Cal.App.4th at pp. 930-931; Frank S., supra, 141 Cal.App.4th at p. 1196.)

A gang enhancement does not apply unless the crime was 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 .... ( 186.22, subd. (b)(1).) (Villalobos, supra, 145 Cal.App.4th at p. 322.) As to the second prong of the enhancement, all that is required is a specific intent to promote, further, or assist in any criminal conduct by gang members. [Citation.] Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. [Citation.] (Ibid.)

In People v. Morales (2003) 112 Cal.App.4th 1176, the defendant and two fellow gang members committed a robbery. On appeal, defendant argued that he lacked the requisite specific intent for the gang enhancement, because the evidence showed only that the three men belonged to the same gang. The court rejected his claim and held there was sufficient evidence that defendant intended to commit the robbery in association with other gang members and that it was therefore fairly inferable that he intended to assist criminal conduct by his fellow gang members. (Id. at p. 1198.)

In the instant case, there is overwhelming evidence that both appellant and C.P. committed the assault upon J.S. with the specific intent to promote, further, or assist in the criminal conduct of the Nortenos. Both minors regularly claimed allegiance to the Nortenos, the color red, the number 14, and bragged about their violent actions in support of the Nortenos. As in Morales, appellant and C.P. jointly assaulted J.S. while shouting Norteno phrases and southern slurs.

A. Existence of the Norteno Gang

Appellant contends there is insufficient evidence that he was a member of the Nortenos or any criminal street gang, or that there is a gang known as the Nortenos which operates under the umbrella of the Nuestra Familia. However, evidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to a larger organization. (See, e.g., People v. Hawthorne (1992) 4 Cal.4th 43, 53; People v. Ortega (2006) 145 Cal.App.4th 1344, 1355-1357 (Ortega); In re Jose P. (2003) 106 Cal.App.4th 458, 467-468 (Jose P.); In re Elodio O. (1997) 56 Cal.App.4th 1175, 1178, 1180, disapproved on other grounds in Sengpadychith, supra, 26 Cal.4th at p. 323.)

Appellant argues there is insufficient evidence that he was a member of a criminal street gang or that a gang known as the Nortenos exists in Farmersville. Appellants argument ignores Officer Sanchezs detailed testimony about the derivation of the Norteno or northern gangs from the Nuestra Familia prison gang, that there were thousands of Nortenos in Tulare County, including Farmersville, he had contacted approximately 200 Nortenos in the course of his work, that individuals in Farmersville claimed allegiance to the northern or Norteno gang based on their display of the color red and use of the number 14 in various forms, that such individuals referred to their turf as Farmas, and the southern gang was the chief rival of the Nortenos and the members described as scraps. Sanchez further testified the types of crimes committed by members of the Norteno gang included homicides, attempted homicides, batteries, property crimes, and thefts, and the more violent crimes in Farmersville were committed by the up and coming gang members because they have to prove themselves or theyre trying to make a name for themselves, and the younger guys commit the shootings, assault with a deadly weapon, things like that. Theyll fight in school trying to make a name for themselves. Sanchezs expert testimony thus established the existence of the Norteno gang, that it was active in Farmersville, and appellants obvious and apparent affiliation with that gang.^[4]

B. Primary Activities

Appellant next contends there is insufficient evidence that the primary activities of the Norteno gang consisted of any of the criminal offenses enumerated in the STEP Act. The STEP Acts definition of a criminal street gang includes the requirement that one of the gangs primary activities is the commission of one or more of the criminal acts enumerated in section 186.22, subdivision (e). ( 186.22, subd. (f).) To trigger the gang statutes sentence-enhancement provision [citation], the trier of fact must find that one of the alleged criminal street gangs primary activities is the commission of one or more of certain crimes listed in the gang statute. (Sengpadychith, supra, 26 Cal.4th at p. 322.) Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the groups primary activities. Both past and present offenses have some tendency in reason to show the groups primary activity [citation] and therefore fall within the general rule of admissibility [citation]. (Id. at p. 323.)

The phrase primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups chief or principal occupations, as opposed to the occasional commission of those crimes by [one or more of] the groups members. (Sengpadychith, supra, 26 Cal.4th at p. 323.) Sufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute, and may be accomplished through expert testimony. (Id. at p. 324, italics in original; Gardeley, supra, 14 Cal.4th at p. 617.) The enumerated criminal acts which consist of the primary activities include unlawful homicide, manslaughter, assault with a deadly weapon or by means of force likely to produce great bodily injury, burglary, robbery, narcotics offenses, shooting at an inhabited dwelling or motor vehicle, discharging a firearm from a motor vehicle, felony vandalism, and grand theft. ( 186.22, subd. (e).)

In Gardeley, the defendant admitted he had been a member of the Family Crip gang for nine years. A police detective testified as the gang expert, and expressed his opinion that the primary activity of the Family Crip gang was the sale of narcotics and that the gang also engaged in witness intimidation. (Gardeley, supra, 14 Cal.4th at p. 620.) The expert based his opinion on conversations with the defendants and with other Family Crip members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies. (Ibid.) Gardeley held the gang experts testimony was sufficient proof of the Family Crip gangs primary activity to support a gang enhancement. (Ibid.)

In the instant case, as in Gardeley, Officer Sanchezs expert testimony established that the primary activities of the Norteno gang in Farmersville were the commission of criminal offenses enumerated in the STEP Act. Sanchez testified the types of crimes committed by members of the Norteno gang included homicides, attempted homicides, batteries, property crimes, felony vandalism, thefts, shootings, assault with a deadly weapon, things like that, and assaults and batteries committed by the younger Nortenos in school.

Appellant relies on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.) and argues Officer Sanchezs testimony was insufficient and conclusory as to the gangs primary activities.^[5] In Alexander L., the court held the gang experts testimony lacked foundation and was insufficient to support the primary activities element. The officer testified only to general offenses committed by the gang, and to a predicate offense in which the alleged gang member was actually acquitted of the gang allegation. (Id. at pp. 611-612.) A second predicate offense involved a gang member involved in an assault, but no direct link was made as to how the offense was connected to the gang. (Id. at pp. 612-613.) More importantly, the officers testimony concerning the predicate offenses did not have an adequate foundation. The officer did not explain how he knew about the offenses. (Id. at p. 612.) On cross-examination, the officer conceded that the vast majority of cases relating to the gang involved graffiti, but failed to specify whether the incidents involved misdemeanor or felony vandalism. (Ibid.)

As explained in People v. Martinez (2008) 158 Cal.App.4th 1324 (Martinez), the gang expert in Alexander L. never specifically testified about the primary activities of the gang. He merely stated he kn[e]w that the gang had been involved in certain crimes.... He did not directly testify that criminal activities constituted [the gangs] primary activities. [Citation.] (Martinez, supra, 158 Cal.App.4th at p. 1330.) In contrast to Alexander L.,Martinez rejected the defendants contention that the testimony of the gang expert lacked foundation: Here, on the other hand, [the gang expert] had both training and experience as a gang expert. He specifically testified as to [the gangs] primary activity. His 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. [Citation.] (Martinez, supra, 158 Cal.App.4th at p. 1330; see also People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 [gang experts personal familiarity with predicate crimes provided sufficient foundation for his testimony].)

As we have already discussed, there was sufficient foundation for Officer Sanchezs expert testimony. Moreover, as in Martinez and in contrast to Alexander L., Officer Sanchezs testimony provided substantial evidence about the primary activities of the Norteno gang. Sanchez specifically testified about his extensive knowledge of the activities of the Norteno gang in Tulare County and Farmersville, his experience as Farmersvilles gang officer and his participation in the Tulare County Gang Enforcement Agency, explained the nature of his contacts with hundreds of gang members and his investigation of gang-related crimes, his understanding of the conduct of young Nortenos to gain prestige within the gang, and offered specific examples of offenses committed by Norteno gang members. The courts finding on the gang enhancement is supported by substantial evidence.

III. The gang enhancement alleged in the petition.

Appellant next contends the gang enhancement must be stricken because the juvenile petition alleged the wrong statute, there was no evidence to support a true finding on that particular statute, and his due process rights were violated because he lacked notice of the charged enhancement. Our review of the record reflects that any error is necessarily harmless.

Appellants argument is based on the following scenario. As set forth ante, section 186.22, subdivision (b)(1) 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 . The succeeding subdivision defines the addition punishment which shall be imposed upon proof of that enhancement as two, three, or four years. ( 186.22, subd. (b)(1)(A).) However, if the underlying offense is a serious felony as defined in section 1192.7, subdivision (c), then the additional term is five years ( 186.22, subd. (b)(1)(B)), and if the underlying offense is a violent felony as defined in section 667.5, subdivision (c), the additional term is 10 years ( 186.22, subd. (b)(1)(C)).

[A]ssault merely by means likely to produce [great bodily injury], without the additional element of personal infliction, is not included in the list of serious felonies. Hence ... a conviction under the deadly weapon prong of section 245 (a)(1) is a serious felony, but a conviction under the GBI prong is not. (People v. Delgado (2008) 43 Cal.4th 1059, 1065, italics in original.) A conviction under the great bodily injury prong of section 245, subdivision (a)(1) is not a violent felony unless great bodily injury is actually inflicted and certain pleading requirements are met. (See  667.5, subd. (c)(8).)

In the instant case, the juvenile petition alleged appellant committed count I, assault by means of force likely to produce great bodily injury against J.S. ( 245, subd. (a)(1)), with a special allegation entitled: street terrorismviolent felony [underscoring omitted], that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members, pursuant to section 186.22(b)(1)(C). (Italics added.)

As the parties herein acknowledge, the underlying felony violation in count I of section 245, subdivision (a)(1) was neither a serious nor a violent felony, and the juvenile petition erroneously alleged the gang enhancement was applicable to a violent felony pursuant to section 186.22, subdivision (b)(1)(C). Instead, the additional term for the gang enhancement should have been defined by section 186.22, subdivision (b)(1)(A), as either two, three, or four years.

The court found true count I and the gang enhancement pursuant to section 186.22(b)(1)(C). It also found true the misdemeanor battery allegation ( 242) in count III.^[6] While the probation report erroneously referred to the gang enhancement as a violation of section 186.22(b)(1)([C]), it correctly stated the terms for both count I and the gang enhancement were two, three, or four years, and recommended terms of four years for both the offense and enhancement, with two months for misdemeanor battery, for a maximum term of eight years two months.

At the disposition hearing, the court adjudged appellant a ward of the court, designated count I and the section 186.22(b)(1)([C]) gang enhancement as felonies, followed the probation reports recommendation for the maximum period of confinement of eight years two months, and placed appellant under the supervision of the probation department. The court ordered appellant to complete a short term program with a period of confinement ranging from 45 to 180 days, and to register as a gang member.

Appellant now contends that his due process rights were violated and the gang enhancement must be stricken because the petition erroneously alleged a violation of section 186.22, subdivision (b)(1)(C), the court found that allegation true, that subdivision only applies to violent felonies, and there is no evidence to support a finding that count I was a violent felony as defined by section 667.5, subdivision (c).

Juveniles in delinquency proceedings must be provided various procedural due process protections, including notice of the charges. (In re Gault (1967) 387 U.S. 1, 33, 36-37, 41, 55, 57.) [T]he gravamen of a wardship petition [is] proving that a minor had committed a criminal offense, and not necessarily the offense alleged in the petition. [Citation.] ... [I]n order to provide the minor with the notice required by due process, the findings adequate to sustain a petition were limited to proof that the minor committed an offense included within that charged in the petition. [Citation.] (In re Robert G. (1982) 31 Cal.3d 437, 443, italics in original.)

In the instant case, appellant was clearly on notice that he was alleged to have committed count I, assault by means of force likely to produce great bodily injury, with the special allegation that he committed the offense for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. Indeed, the primary dispute at the contested hearing was whether Officer Sanchezs expert testimony provided evidence from which the court could find the gang enhancement true. While the court mistakenly cited the petitions allegations as to section 186.22, subdivision (b)(1)(C) throughout the proceedings, that error only addressed the additional term which could be imposed for the gang enhancement and not the nature of the underlying allegation. The court thus found true the exact enhancement alleged in the petition--that appellant committed the assault for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. In addition, the court correctly relied upon section 186.22, subdivision (b)(1)(A) when it calculated the maximum period of confinement as four years for the gang enhancement.

We find that appellant was on notice as to the nature and definition of the felony offense and enhancement alleged against him, the allegations in the petition clearly set forth the elements of the gang enhancement, and there is substantial evidence that he committed count I for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. However, the disposition order must be corrected to reflect the court found the gang enhancement true pursuant to section 186.22, subdivision (b)(1)(A).)^[7]

DISPOSITION

The juvenile courts disposition order of September 4, 2007, line 6(b), is hereby amended to state the gang enhancement was found true pursuant to Penal Code section 186.22, subdivision (b)(1)(A). In all other respects, the judgment is affirmed.

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Levy, Acting P.J.

WE CONCUR:

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Dawson, J.

_______________________________

Hill, J.

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^[1] All further statutory citations are to the Penal Code unless otherwise indicated.

^[2] As we will explain in parts I and II, post, we have addressed Officer Sanchezs testimony in detail because of appellants arguments that his expert opinion lacked foundation, and is insufficient to support the existence of the Norteno gang and other elements of the gang enhancement.

^[3] Given our resolution of this issue, we need not address appellants alternative argument that defense counsel was prejudicially ineffective for failing to object to Officer Sanchezs testimony.

^[4]Appellants claim that there is no such thing as the Norteno gang is similar to an argument raised in Valdez, supra, 58 Cal.App.4th 494, where the court stated that Norteno and Sureno are not the names of gangs. (Id. at p. 508.) In Valdez, however, the prosecutions gang expert offered that testimony based on the unique facts of that case. (Ibid.) Valdezs holding has since been clarified: Valdez does not hold that there is no criminal street gang called Norteo. (Jose P., supra, 106 Cal.App.4th at p. 467.) In Ortega, supra, 145 Cal.App.4th 1344, the court rejected the defendants reliance upon Valdez to dispute the experts testimony about the existence of the Norteno gang in that case, since the testimony of the prosecutions gang expert establish[ed] every element of the existence of the Norteos as a criminal street gang. Unlike Valdez, there was no expert testimony in this case that Norteo is not the name of a gang, and, as the Sixth District Court of Appeal recognized in a later case, the expert testimony in Valdez was evidence in that case, not this one. [Citation.] [] We reject defendants assertion that the prosecution had to prove precisely which subset was involved in the present case. No evidence indicated the goals and activities of a particular subset were not shared by the others. There was sufficient evidence that Norteo was a criminal street gang, that the murder was related to activity of that gang, and defendant actively participated in that gang. There is no further requirement that the prosecution prove which particular subset was involved here. (Ortega, supra, 145 Cal.App.4th at pp. 1356-1357.)

^[5] Appellant erroneously states this court decided Alexander L.Alexander L. was decided by the Fourth District, Division 3. (Alexander L., supra, 149 Cal.App.4th 605.)

^[6] Appellant was also charged with a separate misdemeanor battery allegation in count II, but the court dismissed that allegation for lack of evidence.

^[7] The disposition order states the gang enhancement was found true pursuant to section 186.22, subdivision (e)(1), but that subdivision merely defines the offenses which may constitute the pattern of criminal gang activity to include assault by means of force likely to produce great bodily injury ( 186.22, subd. (e)(1)) rather than the additional term imposed if the enhancement is found true.