People v. Willis CA4/2 ( 2014 )

Filed 1/10/14 P. v. Willis CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057518
v. (Super.Ct.No. RIF1202867)
JOSHUA JERBAR WILLIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas D. Glasser,
Judge. Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant Joshua Jerbar Willis guilty on three counts of second
degree burglary (Pen. Code,1 § 459, counts 1-3), and on one count of actively
participating in a criminal street gang in violation of the Street Terrorism Enforcement
and Prevention Act (STEP Act) (§ 186.22, subd. (a), count 4). The jury also found true
allegations that defendant committed the three burglaries for the benefit of, at the
direction of, or in association with a criminal street gang. (§ 186.22, subd. (b).) After
finding true allegations that defendant suffered a prior strike conviction for purposes of
section 667, subdivisions (c) and (e)(1), and finding true allegations that defendant
suffered three prison priors for purposes of section 667.5, subdivision (b), the trial court
sentenced defendant to 16 years eight months in state prison.
On appeal, defendant admits that he committed the three burglaries but contends
the record does not contain substantial evidence to support his conviction for active
participation in a criminal street gang or to support the jury’s true findings that he
committed the burglaries for the benefit of a criminal street gang for purposes of the gang
enhancements. We conclude the record does contain substantial evidence to support the
jury’s verdict and findings, and we affirm the judgment.
1 All additional undesignated statutory references are to the Penal Code.
2
FACTS
A. The Underlying Crimes
Over a week and a half in May 2012, defendant, along with his cousin Rohann
Scott and his brother Donald Ray Willis, stole video game systems and video games
worth almost $3,000 from Target stores in San Dimas, City of Industry, and Eastvale.
A Target employee called the Riverside County Sheriff’s Department when the three men
were seen together entering the Eastvale store a second time. Sheriff’s deputies
responded and arrested the three men. The next day, officers searched one of the
suspect’s impounded vehicles and discovered backpacks filled with video games.
B. Gang Expert Testimony
An officer assigned to the San Bernardino Police Department’s Gang Investigation
Unit testified that defendant was an active member of the Pimp Player Hustler Gangster
Crips gang, a homegrown gang located on the eastside of the City of San Bernardino.
The officer became acquainted with the gang when he was a patrol officer, and he came
into contact with 20 to 25 of its members during arrests or consensual encounters. The
officer testified the gang goes by the names PPHG or PPHGC and uses the color blue and
the symbols “P” or “4.” The gang had between 80 and 85 documented members at the
time of defendant’s arrest and had as its primary activity the commission of crimes listed
in section 186.22, subdivision (e). The officer testified to three predicate crimes
committed by admitted PPHG members Anthony Gilmore, Edward Gilmore, and
3
Sidikiba Greenwood, Jr., in order to establish that the PPHG was engaged in a course of
criminal activity.2 Based on those and other crimes of which he was familiar, the officer
opined that the PPHG was engaged in a pattern of criminal conduct for purposes of
section 186.22.
The officer testified that he became familiar with defendant and his two
confederates in the burglaries by reviewing police reports, gang field investigation cards,
and photographs of defendant, and by reviewing the security footage of the Target store
burglaries. According to the officer, the PPHG members were “real close” and have
many family members in the gang. The officer testified that one factor behind his
opinion that defendant was an active member of the PPHG is that defendant’s
confederates were close family members and active members of the gang. The officer
based his opinion about Donald Willis’s active gang membership on his review of gang
field investigation cards and based on three of Willis’s tattoos: (1) “PPHGC,” (2) “G”
and “C,” which stands for “Gangster Crip,” and (3) “Sticc Up Kid,” which the officer
testified was significant because Crips gangs never spell words with “ck” because it
stands for “Crip Killer.” The officer opined that Rohann Scott was also an active
member of the PPHGC based on the “PPHGC” tattoo on his back and the letters “ES”
tattooed on his right shoulder, which is short for “Eastside” and refers to the Eastside of
San Bernardino where the gang is located.
2 Defendant does not challenge the sufficiency of the evidence to establish the
existence of these predicate crimes.
4
Moreover, the officer testified that when defendant was booked into the county
jail, he identified himself as a member of the PPHG during his classification interview.
The officer also reviewed gang field investigation cards and spoke to officers who had
made prior contacts with defendant in 2003, 2004, 2009, 2010, and 2011, during which
defendant admitted he was a gang member. The officer testified the most important fact
for him, from the standpoint of a gang investigator, was defendant’s tattoos. Defendant
had a tattoo of the letters “PPHG” and of his gang moniker “JMac” on his right forearm.
The tattoos were important, according to the officer, because they showed defendant’s
loyalty to the gang. The officer testified that, in order to get a PPHG tattoo, a member
had to earn it by being “jumped” into the gang, by putting in work for the gang by
committing a crime as initiation, or by being grandfathered or “walk[ed] in” to the gang
based on a familial connection with the gang. According to the officer, if a gang member
wished to get out of the gang, but could not afford laser removal, he would have a black
line tattooed over the gang’s tattoo.
The officer testified that part of gang culture is putting in work or committing a
crime for the gang, most often by selling illegal narcotics, committing assaults against
members of rival gangs, or committing residential or commercial burglaries. The
proceeds from the sale of illegal narcotics and burglaries, according to the officer, are
used by the gang to purchase guns and to purchase more narcotics for sale, or to purchase
status symbols such as expensive clothing and tennis shoes that are worn for recruitment
purposes. The officer testified that the fact defendant stole from three Target stores in a
5
week-and-a-half period, accompanied by two active members of PPHG, demonstrated he
was an active member of the gang.
Another factor on which the officer relied in forming his opinion about defendant
was defendant’s presence at the March 2012 funeral of Anthony Gilmore, who was killed
by police during a traffic stop. According to the officer, inactive members of a gang or
members who were not in good standing, were not permitted to attend the funeral of an
active member, so defendant’s presence at the funeral “shows me that he’s still active
because he’s allowed to come to that gang funeral.” The officer described to the jury
photographs taken at the funeral depicting defendant with his confederates Donald Willis
and Rohann Scott, and with “Spicy Low,” one of the founding members of the PPHG.
Moreover, the officer testified that the way Anthony Gilmore died at the hands of the
police made the funeral and defendant’s presence there especially important.
Finally, the officer testified he based his opinion that defendant was an active
member of the PPHG gang on the crimes defendant had committed. In October 2004,
defendant was convicted of being a felon in possession of a firearm, which is a primary
activity of the gang. Moreover, the officer opined the Target store burglaries constituted
defendant “putting in work” for the gang, which would help elevate his status in the gang
because the proceeds obtained by selling the stolen merchandise could be used by the
gang to buy guns to commit other crimes or to buy illegal narcotics for resale.
On cross-examination, the officer testified that, during a January 2011 encounter
with another officer, defendant said he wanted to get out of the gang and have no further
contact with gangs. With respect to defendant’s self-identification as a member of a gang
6
during his jail classification interview, the officer testified that a former gang member,
who no longer associates with a gang, would likely ask to be placed in protective custody
to avoid being assaulted by current members of his old gang and rivals alike.
On redirect, the officer testified the Target store burglaries were not necessarily
committed for the benefit of the PPHG, but were committed in association with the
PPHG members, so it did not matter if the proceeds from the stolen merchandise were
actually used to buy guns or drugs for the gang. The officer testified that if defendant had
in fact left the gang, the repercussions for showing up at the funeral of Anthony Gilmore
would be that he would be assaulted as soon as he got there. The gang is like “a
brotherhood,” according to the officer, so if defendant walked out of the gang, he would
not have been a member in good standing and would not have been welcome at any of
the gang’s events, especially at the funeral. That defendant continued to spend time with
his brother and cousin outside of family settings and committed the burglaries with them
showed defendant was still an active member of the gang. The officer opined that jail
classification interviews are reliable in determining if someone is a member of a gang
because if a gang member is housed in the general population, instead of with members
of his gang, he may face some serious repercussions.
Finally, on further cross-examination, the officer testified that one way to leave a
gang is to simply move away from the gang’s territory. Although at some point
defendant moved from San Bernardino to Victorville, the officer testified that members
of the PPHG scattered from San Bernardino to neighboring cities and into Los Angeles
7
County when the accidental murder of an 11-year old girl by a PPHG member led to
increased police suppression of the gang.
C. Defense Evidence
Roeshella Rockmore, defendant’s first cousin, testified that she and defendant
were close, and that she lived with defendant from 2006 to 2008 and again from 2010
until just before his arrest. Although she was aware of defendant’s gang tattoo,
Rockmore testified that she never saw defendant dress like a “gang banger,” hang out
with gang members, “see him doing gang signs,” or do anything else to indicate he was a
gang member. Rockmore testified that defendant spent time with his family, including
with Rohann Scott and Donald Willis, although she denied the latter two were gang
members. Rockmore testified that no gang members ever attended the family gatherings
that she and defendant attended. On cross-examination, Rockmore testified she did not
believe that Rohann Scott and Donald Willis were gang members and that she never saw
them or defendant engage in gang activity.
Tonya Corbett, another of defendant’s first cousins, testified that she and
defendant have been close all his life, and she helped raise him. Corbett testified that
defendant got a gang tattoo, and that he was a gang member when he was young. Corbett
testified that in recent years, she would see defendant as much as four times a week but
never saw him in the company of gang members. Corbett testified that she saw defendant
in the company of Rohann Scott and Donald Willis, but testified that to her knowledge
those two were not active gang members. Corbett saw defendant wear blue clothing, but
she never saw defendant flash gang signs. According to Corbett, defendant mostly spent
8
time with family members. Corbett testified that she never saw defendant with drugs,
and that the only time she saw defendant with a gun was when he was a teenager. On
cross-examination, Corbett testified she did not believe defendant was an active gang
member because he was not around gangs. Corbett’s opinion would not be different even
if she believed that on several occasions defendant admitted to police that he was a gang
member.
Defendant testified that at the time of his arrest, he lived in Hesperia with the
mother of his children. He affiliated with the gang when he was about eight years old,
joined the gang when he was about 13 years old, and got his gang tattoo when he was
14 or 15 years old. Defendant testified he was never “jumped” into the gang, but
interacted with the gang’s members and eventually joined through relatives in the gang.
He joined the gang to fit in, and he drank beer and “smoked weed” with fellow members.
In 2004 or 2005, defendant decided to leave the gang life. Although defendant
had been in trouble with the law since his decision to leave the gang, he testified it had
nothing to do with gangs. When defendant decided to leave the gang, he moved to
Victorville with his aunt to get away from the gang. Defendant testified he never got
“jumped out” of the gang or made a formal declaration that he was quitting the gang—he
simply moved to try and distance himself from the gang. He testified that he did not hang
around gang members after moving to Victorville. Defendant disputed the gang expert’s
testimony that gang members could not simply walk out of a gang or move away.
Defendant testified he attended the funeral of Anthony Gilmore to pay his
respects, and that he wore black instead of blue because he was not a gang member
9
anymore. Defendant disputed the gang expert’s testimony that defendant would have
been harmed and not allowed to attend the funeral if he had left the gang. Defendant
testified it would not have made a difference, and he would have been allowed to attend
the funeral even if he formally left the gang and got “jumped out.” Defendant admitted
that on several occasions during encounters with the police, he told the officers he was in
a gang, but he also testified that he told one officer that he wanted to leave the gang.
With respect to his jail classification interview, defendant testified that he told the
deputies he was involved with gangs and, for his safety, he told them he used to be a
member of the PPHG. Defendant did not ask to be placed in protective custody, instead
of being housed with members of his former gang, because he did not want to be housed
with child molesters, rapists, or snitches. He testified that if he was seen wearing a blue
wristband, which signifies protective custody, word would get out that he might be a
snitch.
Defendant admitted to committing the Target store burglaries but denied that they
had anything to do with a gang. Instead, defendant testified he planned on using the
proceeds from the stolen property to buy diapers, baby clothing, and to pay rent. Finally,
defendant testified he did not consider himself a member of the PPHG.
On cross-examination, defendant testified that gang dropouts in jail were also
housed in protective custody but said many who say they were gang dropouts were
merely trying to avoid paying a debt or using that as an excuse to be housed away from
other gang members. Defendant did not ask to be housed in protective custody because,
unlike White and Hispanic gangs, which were less tolerant of dropouts, Black gangs were
10
“a little bit more lenient.” He denied that he self-admitted to being a gang member
during his jail classification interview. “They asked me [if I was] affiliated, and I told
them, yeah.” Defendant testified he wanted to be housed with the PPHG, not because he
necessarily wanted to be with Crips, but because he feared that his tattoos and former
affiliation might cause him to be stabbed or get into fights if he were housed with Bloods.
Defendant also testified on cross-examination that he moved from San Bernardino
in 2005, but denied that it had anything to do with the murder of the 11-year old girl that
year. He moved to get away from the gang. Finally, defendant testified he was aware
that the PPHG was engaged in a pattern of criminal activity, but he denied that he
participated in that pattern of criminal activity and denied that he ever possessed a
firearm as a member of the gang.
DISCUSSION
I
SUBSTANTIAL EVIDENCE SUPPORTS DEFENDANT’S
CONVICTION UNDER SECTION 186.22, SUBDIVISION (a)
Defendant challenges the sufficiency of the evidence to support his conviction
for actively participating in a criminal street gang in violation of section 186.22,
subdivision (a). Specifically, defendant contends the People did not introduce substantial
evidence that he was an active member of a gang in May 2012 or that he willfully
promoted the felonious conduct of gang members because (1) the gang expert’s
testimony was not based on personal knowledge and was therefore unreliable, and (2) he
11
introduced substantial evidence that he was no longer an active gang member when he
stole from the Target stores. We disagree and affirm defendant’s conviction.
Our review of the evidence is governed by the well-settled substantial evidence
test. “[W]e review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v.
Albillar (2010) 51 Cal. 4th 47, 60 (Albillar).) The same analysis applies when the People
rely mainly on circumstantial evidence. (People v. Jones (2013) 57 Cal. 4th 899, 960-
961.)
“The elements of the gang participation offense in section 186.22[,
subdivision] (a) are: First, active participation in a criminal street gang, in the sense of
participation that is more than nominal or passive; second, knowledge that the gang’s
members engage in or have engaged in a pattern of criminal gang activity; and third, the
willful promotion, furtherance, or assistance in any felonious criminal conduct by
members of that gang. [Citation.] A person who is not a member of a gang, but who
actively participates in the gang, can be guilty of violating section 186.22[,
12
subdivision] (a). (§ 186.22, subd. (i).)” (People v. Rodriguez (2012) 55 Cal. 4th 1125,
1130 (Rodriguez).) “Mere active and knowing participation in a criminal street gang is
not a crime. Applying the third element of section 186.22[, subdivision] (a), a defendant
may be convicted of the crime of gang participation only if he also willfully does an act
that ‘promotes, furthers, or assists in any felonious criminal conduct by members of that
gang.’ (§ 186.22[, subd.] (a).)” (Id. at pp. 1130-1131.)
A. Substantial Evidence of Defendant’s Active Gang Membership in May 2012
The gang expert’s testimony constituted substantial evidence that defendant was
an active participant in the PPHG gang in May 2012. The expert based his opinion in
part on his review of field investigation cards, which stated that on several occasions
defendant and his two confederates admitted to police that they were members of the
gang, and from his review of photographs showing the three men’s respective tattoos. In
fact, the officer testified that defendant’s “PPHG” tattoo was the most significant fact for
him because it signified that defendant was loyal to the gang and had put in the work
necessary to stay a member of the gang in good standing. Moreover, the officer testified
that often former gang members either have their gang tattoos removed or have a black
line tattooed over them, and the clear implication was that defendant’s tattoos had not
been removed or covered up. Besides defendant’s admissions to gang membership made
to officers in the field, the expert testified that when defendant was booked into the
county jail in the current case, he identified himself as a member of the PPHG and
testified to the significance of that identification.
13
The expert also based his opinion on defendant’s association with other admitted
members of the PPHG. He testified the PPHG had numerous members who were related
by blood, and that its members were “real close” to each other. In his opinion, that
defendant spent time with and participated in the three burglaries with his brother and
first cousin, both of whom the expert testified were documented members of the PPHG,
helped establish that defendant was also an active member of the gang. Moreover, the
officer testified that in March 2012, defendant attended the funeral of a member of the
gang who was killed by police and was photographed with other members of the PPHG,
including his brother, his cousin, and “Spicy Low,” a founding member of the gang. The
expert testified that only active members, who were in good standing, would have been
permitted to attend such a funeral.
Finally, the expert based his opinion on the types of crimes defendant committed.
He testified that in October 2004, defendant was convicted of being a felon in possession
of a firearm, which the expert identified as a “primary activity” of the gang. Likewise,
the expert testified that the three Target store burglaries constituted defendant “putting in
work” for the gang, which would help elevate defendant’s status in the gang because the
ill-gotten gains might be used to purchase guns or illegal narcotics for resale.
Defendant contends the evidence we just recited is insufficient to sustain his
conviction because the expert’s testimony was unreliable and because defendant
presented contrary evidence to the effect that he was no longer an active member of the
gang when he stole from the Target stores, and that he stole the video games to pay for
family necessities and not to benefit the gang. Neither argument persuades us.
14
i. Reliability of Gang Expert’s Testimony
With respect to the gang expert’s opinion that defendant and his confederates were
active gang members, defendant contends that testimony is unreliable because the officer
“had no personal contact” with either of them and he only gleaned his information about
them from police reports, field investigation cards, and photographs prepared by other
officers.3 But personal knowledge is not required for introduction of expert witness
testimony. (See, e.g., People v. Vang (2011) 52 Cal. 4th 1038, 1048 [although gang
expert witness was not at the scene of the crime and “had no personal knowledge whether
any of the defendants assaulted [the victim] and, if so, how or why,” the “jury was as
competent as the expert to weigh the evidence and determine what the facts were,
including whether the defendants committed the assault”].)
“Evidence Code section 801 limits expert opinion testimony to an opinion that is
‘[b]ased on matter . . . perceived by or personally known to the witness or made known to
[the witness] at or before the hearing, whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the subject to
which [the expert] testimony relates . . . .’ (Id., at subd. (b).)” (People v. Gardeley
(1996) 14 Cal. 4th 605, 617, italics added.) Defendant does not, and could not, dispute
that the sources from which the expert gleaned his information were the type that a gang
3 In his opening brief, defendant also appears to contend the expert witness’s
testimony is unreliable because he first became acquainted with the PPHG in 2012. To
the contrary, the officer testified he first became acquainted with the PPHG when he was
a patrol officer, some years before he became a gang investigator.
15
expert may reasonably rely upon. (People v. Williams (2009) 170 Cal. App. 4th 587, 622
(Williams) [Fourth Dist., Div. Two] [“Gang experts may rely on their own investigations
and information obtained from other law enforcement officers, including information
from police reports, in forming their opinions”].)
ii. Contrary Defense Evidence
Turning to defendant’s contrary evidence to rebut each of the bases of the expert’s
opinion, that is an argument about the weight to be given to the expert’s testimony and
about which witness or witnesses should be believed, matters which are soundly left to
the trier of fact. (Albillar, supra, 51 Cal.4th at p. 60.) For instance, defendant contends
the fact that he self-identified with the PPHG during his jail classification interview is not
reliable evidence that he was an active member of the gang at the time because, from his
own testimony, a reasonable jury could conclude defendant choose to be housed with his
old gang rather than in the general population or in protective custody for his personal
safety. This argument clearly goes to the weight to be given by the jury to the expert’s
and to defendant’s testimony. (Williams, supra, 170 Cal.App.4th at p. 623.)
We noted in Williams that “‘the sufficiency of the evidence showing active
participation is not altered by the existence of other evidence offered by defendant to
show he was not an active participant in the gang. Resolution of conflicting evidence and
credibility issues was for the jury to decide. [Citation.] It is clear from the verdict
finding defendant guilty of street terrorism that the jury believed he was actively
participating in the gang. Because substantial evidence supports this determination,
“‘that the circumstances might also reasonably be reconciled with a contrary finding does
16
not warrant a reversal of the judgment.’”’” (Williams, supra, 170 Cal.App.4th at p. 626,
quoting People v. Martinez (2008) 158 Cal. App. 4th 1324, 1331.)
B. Substantial Evidence That Defendant Willfully Furthered, Promoted, Or
Assisted in Felonious Conduct by Members of the Gang
The record also contains substantial evidence that defendant willfully furthered,
promoted, or assisted in the felonious conduct of the PPHG members. As already stated,
the expert testified that in his opinion, defendant’s participation in the three Target store
burglaries constituted defendant doing work for the gang, which benefited the gang
because the proceeds from the burglaries might be used to buy guns or drugs.
As with the element of active membership in the gang, defendant’s argument that
the record contains contrary evidence to establish he did not further, promote, or assist in
the gang’s felonious conduct, goes to the weight and credibility of the evidence and must
be rejected.
II
SUBSTANTIAL EVIDENCE SUPPORTS THE TRUE FINDING THAT DEFENDANT
ACTED IN ASSOCIATION WITH GANG MEMBERS AND WITH THE
SPECIFIC INTENT TO PROMOTE, FURTHER, OR ASSIST IN ANY
CRIMINAL CONDUCT BY THE GANG’S MEMBERS
Defendant also challenges the sufficiency of the evidence to support imposition of
a sentence enhancement under section 186.22, subdivision (b)(1)(A). As he does in
relation to his substantive gang conviction, defendant contends the People did not
introduce substantial evidence that he acted in association with a criminal street gang in
17
May 2012 because (1) the gang expert’s testimony was not based on personal knowledge
and was therefore unreliable, and (2) he presented substantial evidence that at the time of
the Target store burglaries he was no longer an active member of the gang. Defendant
also argues the People did not introduce substantial evidence that he had the specific
intent to promote, further, or assist in the gang’s criminal conduct because the Target
store burglaries were not gang related. We conclude otherwise and affirm the imposition
of the gang enhancement.
“Section 186.22[, subdivision] (b)(1) imposes additional penalties 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 . . . .’ Unlike the substantive offense, the
enhancement does not require proof of participation in a gang. It is further distinguished
from the substantive offense by applying only to gang-related offenses and by requiring
the defendant to act with the specific intent to promote, further, or assist any criminal
conduct by gang members.” (Rodriguez, supra, 55 Cal.4th at p. 1130, fn. 5.)
A. Substantial Evidence That Defendant Acted in Association with Members of
the Gang in May 2012
Defendant does not dispute that he participated in the Target store burglaries with
his brother and cousin. The record contains substantial evidence from which the jury
could conclude that defendant and his two confederates were active members of the
PPHG at the time of the burglaries, so the jury could have reasonably drawn the
additional inference that defendant’s participation in the burglaries was in association
18
with the gang’s members. This evidence supports the gang expert’s testimony that he
was of the opinion the burglaries were done by defendant in association with the gang’s
members.
Defendant’s arguments on this element, that the expert’s opinion that defendant
and his confederates were active gang members is unreliable and that defendant presented
contrary evidence, have already been rejected.
B. Substantial Evidence That Defendant Acted with the Specific Intent to
Promote, Further, Or Assist in Criminal Conduct by Members of the Gang
With respect to the second element for the enhancement, the expert testified the
Target store burglaries were not necessarily done for the financial benefit of the gang.
Nevertheless, his testimony and the testimony about the burglaries themselves is
substantial evidence that, when defendant committed the burglaries in association with
active members of the PPHG, he did so with the specific intent to promote, further, or
assist in that criminal conduct—by actually entering the Target stores and stealing
merchandise.
Defendant argues the second element has not been sufficiently established because
the People introduced no evidence that the burglaries were “gang related” and committed
for the benefit of the gang. We disagree. Criminal conduct is “gang related,” and is
subject to enhanced punishment under section 186.22, subdivision (b)(1), if the defendant
acted in association with the gang and acted to promote its criminal conduct. (Albillar,
supra, 51 Cal.4th at p. 60.) The defendant need not have specifically intended to promote
or benefit the gang itself. (Id. at p. 67.) Therefore, even if the jury credited defendant’s
19
testimony that he planned on using the proceeds from the burglaries to buy diapers and
other necessities it could still reasonably conclude that defendant had the specific intent
to advance the criminal conduct of his fellow gang members.
And even if defendant were correct that the crimes must be “gang related,” his
arguments about the sufficiency of the evidence, like those made about the substantive
crime of active participation in a criminal street gang, go to the weight to be given to the
evidence. For example, defendant contends the fact that he and his confederates stole
from Target stores in Los Angeles and Riverside Counties, instead of on the PPHG’s
home turf of San Bernardino, is further evidence that the crimes were not gang related.
That a reasonable jury might draw such an inference does not diminish the fact that
defendant’s jury reasonably drew the contrary inference. (Williams, supra, 170
Cal.App.4th at p. 626.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
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