People v. Cook CA2/2 ( 2014 )


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  • Filed 4/30/14 P. v. Cook CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,                                                          B248133
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. TA25327)
    v.
    ANDREW TYRONE COOK,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los Angeles County. John T.
    Doyle, Judge. Affirmed.
    Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
    General, Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and Yun K.
    Lee, Deputy Attorneys General, for Plaintiff and Respondent.
    Defendant and appellant Andrew Tyrone Cook (defendant) appeals from his gang
    related robbery conviction. He contends that the trial court erred in precluding cross-
    examination of the investigating officer/gang expert as to an unrelated shooting and
    resulting civil action in which the officer was involved. Defendant also contends that
    substantial evidence did not support the finding that the crime was gang related, and that
    the imposition of a $280 restitution fine was an ex post facto violation. Defendant has
    failed to preserve the ex post facto issue, and we decline to reach the merits. Finding no
    merit to defendant’s remaining contentions, we affirm the judgment.
    BACKGROUND
    Procedural history
    Defendant was charged with two counts of second degree robbery in violation of
    Penal Code section 211.1 The information alleged that count 1 had been 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,
    within the meaning of section 186.22, subdivision (b)(1)(C). As to count 2, the
    information alleged that defendant personally used a firearm in the commission of the
    offense, within the meaning of section 12022.53, subdivision (b). It was further alleged
    pursuant to section 667, subdivision (a)(1), as well as for purposes of the “Three Strikes”
    law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), that defendant had suffered a prior
    serious felony conviction. The information also alleged three prior convictions for which
    defendant had served prison terms within the meaning of section 667.5, subdivision (b).
    A jury convicted defendant of count 1 as charged and found the gang allegation to
    be true. After the jury deadlocked on count 2, the trial court declared a mistrial, and on
    motion of the prosecutor, dismissed the count. In a bifurcated proceeding, defendant
    waived his right to a trial on the prior convictions and admitted he suffered a prior
    robbery conviction that qualified as a strike, as well as two other convictions with prison
    terms. On April 9, 2013, after denying defendant’s motion for new trial, the trial court
    1      All further statutory references are to the Penal Code, unless otherwise indicated.
    2
    sentenced defendant to 23 years in prison. The court selected the middle term of three
    years, doubled as a second strike, added five years pursuant to section 667, subdivision
    (a), plus 10 years due to the gang finding, and two one-year enhancements due to prior
    prison terms. Defendant was awarded 608 actual days of presentence custody credit, plus
    91 days of conduct credit for a total of 699 days. The trial court ordered defendant to pay
    a $280 restitution fine, as well as other mandatory fines and fees, and to provide a DNA
    sample.
    Defendant filed a timely notice of appeal from the judgment.
    Prosecution evidence
    Mesinas robbery (count 2)
    On August 7, 2011, at approximately 6:00 a.m., as Noe Mesinas (Mesinas) was
    walking home from the train station on Imperial Highway near Grape Street, he was
    robbed at gunpoint of cash and other items by two African-American men. The men
    were approximately 25 to 30 years old; one was a bit taller than five feet five inches tall,
    and the other was taller than that. Although the taller man pulled Mesinas’s T-shirt over
    his head so that it covered most of his face, Mesinas was able to get a look at him. A few
    months later, Mesinas selected defendant’s photograph from a six-pack photographic
    lineup, and identified him as the taller robber who had pulled his T-shirt and put a gun to
    his back.
    Villavicencio robbery (count 1)
    Four days later, on August 11, 2011, Gabriela Villavicencio (Villavicencio) was
    walking on Imperial Highway toward the same train station sometime between 6:30 and
    6:45 a.m., when she saw two African-American men. The taller of the two men, who
    was wearing a black bubble jacket, gave a signal to the shorter one, and then grabbed
    Villavicencio’s purse. When Villavicencio screamed and hit the shorter man with her
    plastic lunchbox, he took the lunchbox from her and caught up with the other man at the
    corner. Villavicencio then saw both of them run onto Grape Street and disappear into an
    alley.
    3
    Los Angeles Police (LAPD) Officer Jesse Pineda interviewed Villavicencio and
    another witness at the crime scene. He then communicated the suspects’ descriptions to
    Officer Jose Carias with the information that the suspects had fled into the nearby
    Imperial Courts housing project (Imperial Courts project or the projects). Officer Carias
    both reviewed time-stamped video recorded earlier by surveillance cameras in the
    projects and in the area of Imperial Highway and Grape Street, and watched surveillance
    images in real time. He observed two men walking westbound on 115th Street to Grape
    Street toward Imperial Highway at 6:32 a.m., wearing clothes matching the descriptions
    he was given. Officer Carias recognized one of the men as Derek Martin (Martin), whom
    he knew from prior contacts. The same two men, wearing the same clothing, could be
    seen at 6:45 a.m. running north on Grape Street then east on a walkway leading into the
    projects.
    Beginning about 8:30 or 9:00 a.m., Officer Carias watched the live feed from the
    cameras in the projects. He could see the entire housing development and was able to
    focus on Martin’s former apartment unit. There he saw a person with a build and
    clothing similar to that of Martin’s companion seen earlier that morning. Officer Carias,
    who controlled the movement of the cameras, tracked the man as he walked within the
    projects. When the man picked up a black jacket from some bushes near the northeast
    corner of Grape Street and 115th Street, Officer Carias told Officer Pineda to detain him.
    Defendant was the man Officer Pineda detained. He was taken to the police
    station where Villavicencio identified him in a field show-up as one of the two robbers.
    Villavicencio recognized defendant’s face, the black jacket, and his hair style -- lots of
    little pony tails. A few days later, Villavicencio was taken to another field show-up and
    identified Martin as the other robber. Villavicencio then identified defendant in court as
    one of the two men who robbed her, the one wearing the black jacket which was in
    evidence. Villavicencio identified a photograph of Martin as the shorter man involved in
    the robbery.
    Officer Carias testified as the prosecution’s expert on the PJ Watts Crip gang
    (PJ Watts) and gang culture in general. He testified that PJ Watts was an active criminal
    4
    gang and its primary activities were robberies, burglaries, home invasions, narcotics
    sales, shootings, and murder. The gang’s territory included the Imperial Courts project,
    the area near Imperial Highway and Grape Street, and 115th Street. Officer Carias
    presented evidence showing offenses by those he knew to be members of the PJ Watts
    gang: Deandre Fountain who was convicted in 2009 of possession of a firearm by a
    felon, and Robert M. Barnes, who was convicted of the same offense in 2009.
    Officer Carias described the PJ Watts gang’s common signs and symbols,
    including hand signs, tattoos, and clothing. Tattoos were typically P and J which stood
    for the projects; PJWC for Projects Watts Crips, or street names or numbers within the
    gang’s territory, such as 115 for 115th Street, and images of bricks, signifying the
    projects, as it was built of bricks. Members also might have tattoos indicating a clique or
    subset of the gang, or a squad. Officer Carias took photographs of defendant, showing a
    tattoo of 115 and “Squad Alumni” over an image of bricks on his abdomen, and tattoos of
    a P and a J on his left thigh. Martin’s tattoos included a P and J on either side of his face,
    a P and J on his neck, and bricks on his forearm.
    Officer Carias testified he was acquainted with Martin and had documented him
    beginning in 2008. It was Officer Carias’s opinion that Martin was a PJ Watts gang
    member whose gang moniker was “Roscoe.” This opinion was based on Martin’s
    admissions to him, his contacts with Martin in and around the projects, and Martin’s
    tattoos. It was also Officer Carias’s opinion that defendant was a member of the PJ Watts
    gang and his moniker was “Half Dead” or “HD.” He based this opinion on evidence of
    defendant’s commission of the robbery with Martin in PJ Watts territory, defendant’s
    tattoos, and a conversation with defendant’s girlfriend the day before his testimony in
    which she told Officer Carias that she had been in a relationship with defendant for nine
    years and knew him to be a member of PJ Watts. Defendant’s girlfriend also identified
    her tattoos to Officer Carias, including “Half Dead” behind her ears which she said was
    for defendant.
    Officer Carias was familiar with every gang in his division and explained that a
    gang’s reputation for violent crimes committed in the community served to frighten
    5
    people and thus to discourage them from cooperating with law enforcement. A gang
    member gained the respect of his peers by “putting in work” for the gang, which meant
    committing violent acts and crimes to enhance the gang’s reputation. Putting in work
    could also mean assisting and supporting a fellow gang member while committing a
    crime, or providing a witness to prove that the work was completed. Typically most such
    crimes occur in the gang’s own territory, which among other reasons, served to increase
    fear in the community and make witnesses more reluctant to come forward.
    When given a hypothetical question mirroring the facts of the Villavicencio
    robbery, Officer Carias gave his opinion that the crime was committed for the benefit of
    and in association with a criminal street gang. His opinion that such a crime would
    benefit the gang was based on the following facts: the crime was committed in broad
    daylight in the hub of the gang’s territory by a documented gang member with gang
    related tattoos and another person who, while not documented, had tattoos consistent with
    membership in the gang. Such circumstances would cause fear and intimidation within
    the community and thus allow the gang to continue to commit crimes and pursue its
    criminal enterprise without police interference. Although the money or items stolen in a
    robbery would not necessarily benefit the gang, the robbery itself would do so by
    enhancing the gang’s violent reputation.
    Defense evidence
    LAPD Officer Juan Ponce testified that he and his partner interviewed Mesinas at
    the crime scene, where Mesinas told him that both robbers on August 7, 2011, were five
    feet nine inches tall and weighed 160 pounds.
    Defense investigator Gary Cooper (Cooper) testified that he interviewed Mesinas,
    who described one of the robbers as taller than six feet, 220 pounds, and wearing a black
    hoodie with the hood up. Mesinas also said that when one of the robbers pulled up his
    shirt he could only look downward and was therefore only 80 percent certain of his
    identification of defendant’s photograph. Mesinas also told Cooper that he did not see
    anyone he could identify as either robber when he went to court for pretrial proceedings.
    6
    In May 2012, after Martin pled guilty to the Villavicencio robbery, Cooper
    interviewed him. Martin said that defendant was not involved in that robbery, that Martin
    committed it with a man named “J Coll,” whom he described as a Black male in his 20’s,
    five feet ten inches tall, weighing 160 pounds.
    Martin testified on defendant’s behalf. He admitted being an active member of
    PJ Watts which was headquartered in the Imperial Courts project. He had been a member
    of the gang since 1996 or 1997 and had various tattoos indicating his membership in the
    gang. He wore a P and J on his face so that people would know he was a member of the
    PJ Watts. He also had a P and J on his neck and bricks on his arm to represent the
    projects. Martin admitted that he remained a PJ Watts member while in prison and
    “always.”
    Martin claimed that defendant was not involved in the robbery, that he did not
    know defendant at that time, and that he did not meet defendant until the first court date
    in this case. Martin testified he knew every active member of his gang who frequented
    the projects and claimed, “If you ain’t there every day and you ain’t active, I don’t know
    you,” and “I know [defendant] ain’t from my hood. I ain’t never seen him before for
    sure.” When the prosecutor showed Martin the photographs of defendant’s tattoos, he
    claimed that a member of PJ Watts would not get “115” tattooed on him, explaining that
    115 was not a clique of PJ Watts and that although the robbery was committed at 115th
    and Grape Streets, 115th Street was not part of his hood.
    Martin testified that on August 11, 2011, he left the projects around 6:45 a.m. to
    go to the nearby train station, where “Red,” a member of a different gang, introduced him
    to J Coll, short for “J Corleone,” which was a “hood name.” Red said that J Coll was a
    young PJ Watts member who “claimed the hood,” and Martin replied that J Coll would
    have to come to the hood to get officially “jumped in” to the gang. Martin also testified
    that J Coll had already been jumped in, and that he had personally taken J Coll to his
    hood for that purpose. Martin did not make clear when that happened, as he claimed they
    first met when introduced by Red at the train station. He added that he never saw J Coll
    again after the robbery. Martin claimed that Red was dead by the time of trial and
    7
    acknowledged that he had never before spoken Red’s name in connection with his
    version of the robbery.
    Martin claimed he committed the robbery for his personal benefit, not the gang’s,
    because he needed some money to get high. Martin knew that since J Coll was a new
    member, he would have to prove himself by going on “missions.” Thus Martin instructed
    J Coll to stand watch at the corner. The robbery happened very fast: Martin took off and
    J Coll ran behind him, but when Martin looked back, J Coll was gone, and Martin never
    saw him again. Martin described J Coll as about five feet seven to ten inches tall,
    weighing 165 pounds, with a little “fro” hairstyle, and wore a black hoodie during the
    robbery. When asked to identify defendant in court, Martin testified that he was not J
    Coll. After the prosecutor showed Martin the surveillance video of him and the other
    suspect, Martin acknowledged that J Corleone had the same height and build as
    defendant.
    Martin acknowledged he lied when he was first arrested by claiming that he had
    done nothing. He told the police, “That’s on PJ’s.” At trial he explained, “I put that on
    the hood. That’s how we talk.” After he was shown the surveillance video showing him
    running through the alley he decided to take a plea bargain and he pled to the charge in
    April 2012. Martin claimed that when he entered his plea, he told his attorney that
    defendant had nothing to do with the robbery and that he said it in open court to the
    deputy district attorney who took his plea.
    Martin testified that in May 2012, after his plea, he told Cooper that defendant had
    not been with him, and that he did not even know defendant then. Martin gave Cooper a
    description of J Coll. In October 2012 Martin told Officer Carias that defendant was not
    involved, rather it was J Coll. He gave a description of J Coll and said “he was hanging
    at” the shopping center or the train station, but claimed that no one in the projects knew J
    Coll except the four or five unnamed people who “courted him on.” Martin thought
    Officer Carias doubted him, as there was no follow up. Martin was not shown
    photographs in an effort to identify J Coll.
    8
    Martin was not forthcoming with Officer Carias because he did not like the
    officer. Martin explained, “I didn’t want to see his face because he killed a homie . . .
    and he be harassing us.” Martin denied that he spelled out “J. Cole” instead of “J Coll”
    but after the prosecutor played a recording of the interview in which he spelled “J-C-O-L-
    E,” Martin explained that he was high during the interview. Martin then denied being
    high and claimed he spelled it that way because of Keisha Cole. Finally, Martin again
    claimed that he was high during the interview.
    Rebuttal
    Deputy district attorney Tracey Stevens testified that she took Martin’s change of
    plea on April 26, 2012, and that he never mentioned the name J Coll to her or said
    anything to her regarding the involvement of a person named J Coll in the robbery.
    Officer Carias testified that he unsuccessfully attempted to locate J Coll using the
    spelling Martin gave him and variations of the name by searching department resources
    and asking Detectives Moreno and Peters to search for a person with that name associated
    with Imperial Courts or the PJ Watts gang. After Martin said J Coll had been courted or
    jumped into the gang at the train station, Officer Carias searched the surveillance video
    for some indication that a person was jumped in or courted, but he found nothing.
    DISCUSSION
    I. Limitation on cross-examination
    Defendant contends that the trial court abused its discretion in limiting the cross-
    examination of Officer Carias under the authority of Evidence Code section 352 and by
    denying his motion for new trial based upon the limitation. Defendant also contends that
    the trial court’s rulings resulted in a denial of his constitutional rights to due process,
    confrontation, and to present a complete defense.
    “The court in its discretion may exclude evidence if its probative value is
    substantially outweighed by the probability that its admission will (a) necessitate undue
    consumption of time or (b) create substantial danger of undue prejudice, of confusing the
    issues, or of misleading the jury.” (Evid. Code, § 352.) The trial court’s discretion under
    Evidence Code section 352 will not be disturbed unless it was exercised “‘in an arbitrary,
    9
    capricious or patently absurd manner that resulted in a manifest miscarriage of justice.
    [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 
    8 Cal.4th 1060
    , 1124-1125.)
    Similarly, The trial court “has a ‘wide latitude’ of discretion to restrict cross-examination
    and may impose reasonable limits on the introduction of such evidence. [Citation.]”
    (People v. Smith (2007) 
    40 Cal.4th 483
    , 513, quoting Delaware v. Van Arsdall (1986)
    
    475 U.S. 673
    , 679.) The trial court also retains wide latitude within the confines of the
    confrontation clause, and no constitutional violation will be found in the restriction of
    cross-examination properly excluded under Evidence Code section 352. (People v. Ayala
    (2000) 
    23 Cal.4th 225
    , 301 (Ayala).)
    Prior to Officer Carias’s testimony, defense counsel informed the court that she
    intended to cross-examine him about his 2010 shooting of a PJ Watts gang member. A
    wrongful death action was brought against him and the LAPD and there was an LAPD
    directive barring Officer Carias from entering the Imperial Courts project. Counsel
    sought the evidence in order to show the officer’s bias against PJ Watts gang members in
    general and to weaken his credibility as the investigator and as a gang expert.
    The trial court heard the relevant testimony in an Evidence Code section 402
    hearing outside the jury’s presence. Officer Carias testified that he and his partner had
    been assigned exclusively to the PJ Watts gang for almost two years when, in October
    2010, they were involved in a shooting in which a PJ Watts member was killed. The
    shooting had nothing to do with defendant or Martin. LAPD Internal Affairs conducted
    an investigation, as it routinely does when there is a shooting by an officer, found no
    wrongdoing and closed its investigation. The officers were initially placed on
    administrative duty and had no contact with the public during that time. The assignment
    was not punitive, but according to policy after a shooting. The officers were back on
    regular duty by July or August 2011 and still assigned to the gang unit. However, due to
    some community concerns, the Chief of Police issued a memorandum in August or
    September 2011 prohibiting Officer Carias and his partner from entering the Imperial
    Courts project unless another officer called for help. Officer Carias was able to
    10
    investigate this case by viewing the surveillance video and directing other officers to
    enter the projects when necessary.
    The trial court considered the evidence and found that any probative value was
    outweighed by the potential for confusing the jury and causing an undue consumption of
    time. Thus, the trial court excluded the evidence, rejected defendant’s requests to
    reconsider the ruling after Officer Carias testified and again prior to his rebuttal
    testimony, and denied defendant’s motion for new trial on this basis.
    Defendant does not dispute the trial court’s finding that the 2010 shooting did not
    involve defendant, that there was no indication that Officer Carias knew of defendant
    prior to investigating this case, or that he targeted defendant for any reason other than his
    observations on the surveillance video. Instead, defendant contends that the officer’s
    involvement in the shooting of a PJ Watts member and his status as a defendant in a
    wrongful death action could have affected his judgment and created a bias toward all
    members of the PJ Watts gang. Defendant argues that he was prevented from showing
    that the officer was motivated by bias, consciously or unconsciously, to conduct
    suggestive single person field show-ups, to exaggerate his efforts to find J Coll, and to
    opine that the crime was gang related simply because defendant was found in the projects
    and had gang tattoos. In addition, defendant suggests that the evidence was important to
    show that Officer Carias was unable to effectively investigate crimes or criminals within
    Imperial Courts due to his inability to physically enter the projects, placing both his PJ
    Watts gang expertise and his investigation in this case in question.
    We first observe that the evidence would most certainly have implied that the
    shooting was not justified and that Officer Carias had wrongfully caused a death, thus
    reflecting poorly on his character. A trial court may properly exercise its discretion to
    preclude such collateral impeachment as inquiring into unrelated past conduct that does
    not bear on the witness’s veracity or honesty. (Ayala, supra, 23 Cal.4th at p. 301.)
    We also reject defendant’s contention that the cross-examination would not have
    consumed an undue amount of time or caused jury confusion simply because defense
    counsel did not intend to bring out the details of the shooting. The prosecution would
    11
    have been required to rehabilitate Officer Carias by eliciting the details of the shooting,
    the investigation, and the reasoning behind barring Officer Carias from physically
    entering the projects. Defendant’s argument that the officer’s expertise was affected by
    his inability to investigate the gang or suspects from inside the projects might have
    required another gang expert to testify regarding effective investigative practices, and
    possibly evidence of similar investigations. Further, it is conceivable that defendant’s
    suggestion of unconscious bias and its effect on identifying suspects could require expert
    testimony on that subject.
    Moreover, the evidence was not highly probative. As the court observed, the
    “pending civil litigation of a shooting of a gang member unrelated to these two people
    . . . does not show a bias or a prejudice of this officer because virtually every . . . contact
    [requiring an officer] to fight, chase, [and] get shot at . . . would provide a bias or a
    prejudice. And we would not let all those in.” And as respondent aptly points out, the
    broad discretion granted by Evidence Code section 352 “‘empowers courts to prevent
    criminal trials from degenerating into nitpicking wars of attrition over collateral
    credibility issues.’ [Citation.]” (Ayala, 
    supra,
     23 Cal.4th at p. 301.)
    Defendant has not shown that the trial court acted in an arbitrary, capricious or
    patently absurd manner; nor has defendant demonstrated a miscarriage of justice. A
    miscarriage of justice occurs when it appears reasonably probable that defendant would
    have achieved a more favorable result absent the alleged error. (See People v. Watson
    (1956) 
    46 Cal.2d 818
    , 836.) The jury heard from Martin that Officer Carias had killed a
    PJ Watts member, and the jury heard a great deal of conflicting testimony from Martin.
    If defendant had been allowed to go into the collateral matter further the jury would also
    have learned that the LAPD had cleared Officer Carias of wrongdoing, that he was no
    longer on administrative duty, thereby leaving the jury with no indication that the
    prohibition against entering the projects had any purpose other than protecting Officer
    Carias. Under such circumstances we cannot agree that there was a reasonable
    probability that the jury’s assessment of either witness would have been different.
    12
    There is no merit to defendant’s argument that without the excluded evidence
    Officer Carias was unimpeachable as an expert witness. There is no indication that the
    trial court would not permit a challenge to Officer Carias’s testimony regarding his gang
    expertise, experience, and education, if defendant had attempted to do so. Nor is there
    merit in defendant’s assertion that Martin’s credibility was left in doubt because Officer
    Carias was barred from investigating or searching for J Coll. Martin damaged his own
    credibility with conflicting testimony. Moreover, Officer Carias did in fact search for
    J Coll by researching LAPD resources, reviewing surveillance video, and having
    Detectives Moreno and Peters conduct the physical search in the projects.
    We conclude that the trial court acted properly within its discretion in excluding
    cross-examination designated to elicit the unrelated shooting and the wrongful death civil
    action. As defendant has failed to demonstrate that an inquiry into such collateral matters
    “‘would have produced “a significantly different impression of [the] credibility”’” of
    Officer Carias or Martin, the trial court’s proper exercise of discretion under Evidence
    Code section 352 was not prejudicial and did not result in a violation of the Sixth
    Amendment. (People v. Smith, supra, 40 Cal.4th at p. 513, quoting Delaware v. Van
    Arsdall, 
    supra,
     475 U.S. at p. 680; see also Ayala, 
    supra,
     23 Cal.4th at p. 301.) We thus
    reject defendant’s constitutional claims, as well.
    II. Substantial evidence of gang finding
    Defendant contends that the jury’s finding that the robbery was gang related was
    not supported by substantial evidence.
    Section 186.22, subdivision (b)(1), authorizes a sentencing enhancement for
    felonies “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 enhancement “applies when a defendant has
    personally committed a gang-related felony with the specific intent to aid members of
    that gang.” (People v. Albillar (2010) 
    51 Cal.4th 47
    , 68 (Albillar).) “In sum, if
    substantial evidence establishes that the defendant intended to and did commit the
    charged felony with known members of a gang, the jury may fairly infer that the
    13
    defendant had the specific intent to promote, further, or assist criminal conduct by those
    gang members.” (Id. at p. 68.)
    A gang enhancement finding is reviewed under the same substantial evidence
    standard as any other conviction. (People v. Ochoa (2009) 
    179 Cal.App.4th 650
    , 657.)
    Thus, “we 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.]” (Albillar, supra,
    51 Cal.4th at pp. 59-60.)
    Defendant contends that there was insufficient evidence of association with a gang
    or benefit to a gang to support the first element of the enhancement: the felony was
    committed “for the benefit of, at the direction of, or in association with any criminal
    street gang.” Defendant does not challenge the sufficiency of the evidence to establish
    that Martin was a member of the PJ Watts gang, and although he points out conflicting
    evidence, he accepts the jury’s finding that he was also a member of the gang. Further,
    defendant does not challenge the sufficiency of the evidence to support the jury’s finding
    that defendant committed the Villavicencio robbery with Martin.
    Rather, defendant contends that “in association with any criminal street gang”
    must be construed as committing the felony in association with the gang as an entity, not
    just another gang member. On the contrary, the commission of a felony with a known
    gang member can give rise to a reasonable inference that the crime was committed in
    association with a gang, unless there is evidence that the defendant was engaged in
    “‘frolic and detour unrelated to the gang. [Citation.]’” (Albillar, supra, 51 Cal.4th at pp.
    61-62, quoting People v. Morales (2003) 
    112 Cal.App.4th 1176
    , 1198; see also Albillar at
    14
    pp. 59-60 [rape by gang members acting in concert], 68.) Ample evidence supported the
    reasonable inference of the association element here. Defendant’s accomplice was a
    documented and admitted member of the PJ Watts gang who had visible gang related
    tattoos which defendant undoubtedly recognized. Defendant also had PJ Watts gang
    related tattoos. Martin and defendant committed the crime in gang territory and Martin
    testified that his accomplice needed to go on a mission to prove himself, negating any
    suggestion of a frolic or detour.
    Defendant also contends that the evidence of benefit to the gang is lacking because
    it came from expert testimony that was not supported by “specific evidence” that the
    Villavicencio robbery was committed to benefit the PJ Watts gang. Defendant relies
    primarily on the dissenting opinion of Justice Werdegar in Albillar, supra, 51 Cal.4th at
    pages 72-73, to support this contention. The majority held, however, that expert opinion
    can be sufficient to raise the inference that the conduct was committed for the benefit of
    the gang. (Id. at p. 63.) We are bound by the majority opinion of the Supreme Court.
    (See Auto Equity Sales, Inc. v. Superior Court (1962) 
    57 Cal.2d 450
    , 455.) Moreover, the
    majority has since made it clear that “‘[e]xpert opinion that particular criminal conduct
    benefited a gang’ is not only permissible but can be sufficient to support the Penal Code
    section 186.22, subdivision (b)(1), gang enhancement. [Citation.]” (People v. Vang
    (2011) 
    52 Cal.4th 1038
    , 1048.)2
    Officer Carias’s testimony and opinion sufficiently raised the reasonable inference
    that the crime was committed for the benefit of a criminal street gang. The officer
    testified that the PJ Watts gang was a violent criminal street gang whose primary
    2      We thus find the pre-Albillar and pre-Vang cases cited by defendant as illustrating
    the insufficiency of expert testimony to support gang allegations in the absence of direct
    testimony of the motive in the particular case, such as a public declaration of the gang’s
    involvement or the exhibition of gang signs, colors, or tattoos, unhelpful. (See, e.g.,
    People v. Ramon (2009) 
    175 Cal.App.4th 843
    , 851; In re Frank S. (2006) 
    141 Cal.App.4th 1192
    , 1199.) Nor do we find helpful defendant’s comparison to In re Daniel
    C. (2011) 
    195 Cal.App.4th 1350
    , as the facts of that case were expressly distinguished
    from those in Albillar and are not analogous here. (See Daniel C., at p. 1361 [fellow
    gang members left store prior to shoplifting; no evidence of concerted action].)
    15
    activities were robberies, burglaries, home invasions, narcotics sales, shootings, and
    murder; and his testimony was supported by the certified dockets showing the firearm
    convictions of members of the gang. Officer Carias explained that gang members put in
    work for their gang by committing violent crimes, usually in their gang’s territory and
    often in broad daylight. This activity benefitted the gang by building its violent
    reputation in the community through fear and intimidation, which discouraged citizens
    from coming forward, allowing the gang to continue to pursue its criminal enterprise
    without police interference.
    Moreover, and contrary to defendant’s assertion, there was additional evidence of
    gang benefit “specific” to the Villavicencio robbery. Although Martin claimed he
    committed the robbery for his personal benefit rather than that of the gang, he initially
    told police, “That’s on PJ’s.” Also he testified that his accomplice was a new member
    and would thus have to prove himself by going on missions. It follows that defendant
    knowingly assisted his fellow gang member to benefit the gang by putting in work that
    would build the gang’s violent reputation.
    We conclude that Officer Carias’s expert opinion and Martin’s testimony
    sufficiently established that defendant and Martin came together as gang members to rob
    Villavicencio, and “thus, that they committed these crimes in association with the gang.
    [Citations.]” (Albillar, supra, 51 Cal.4th at p. 62.) We also conclude such evidence,
    along with Officer Caria’s testimony regarding gang culture and his opinion that such a
    crime would benefit the gang by enhancing its reputation for violence, was sufficient to
    raise a reasonable inference that the robbery was committed to benefit the gang. From
    the same evidence, the jury could “fairly infer that the defendant had the specific intent to
    promote, further, or assist criminal conduct by those gang members,” thus satisfying both
    elements of the enhancement. (Id. at p. 68.)
    III. Ex post facto
    Defendant contends that the imposition of a $280 restitution fine was unauthorized
    and violated the ex post facto clauses of the state and federal constitutions. He contends
    that the record shows that the trial court intended to impose the minimum fine, which was
    16
    $200 at the time of his offense, with a maximum of $10,000. (See former § 1202.4, subd.
    (b)(1); Stats. 2011, ch. 45, § 1, eff. July 1, 2011.)
    Ex post facto laws are prohibited by both the California and United States
    Constitutions. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) A prohibited ex post
    facto law is a statute that punishes as a crime an act which was not a crime when
    committed, or that inflicts greater punishment than permitted by the law applicable when
    the crime was committed. (Collins v. Youngblood (1990) 
    497 U.S. 37
    , 42-43; People v.
    Acosta (2009) 
    176 Cal.App.4th 472
    , 475.) “[T]he imposition of restitution fines
    constitutes punishment, and therefore is subject to the proscriptions of the ex post facto
    clause and other constitutional provisions. [Citations.]” (People v. Souza (2012) 
    54 Cal.4th 90
    , 143.)
    Defendant contends that the trial court’s intent to impose the minimum fine
    authorized by law can be found in the court’s oral imposition of the fine, as follows:
    “You are to pay a $240 -- $280 restitution fine on count 1, a $280 parole revocation fine
    which is to be stayed unless you violate your parole . . . .” $240 was the minimum fine
    beginning January 1, 2012, before the minimum was raised to $280 beginning January 1,
    2013. (Stats. 2011, ch. 358, § 1, eff. Jan. 1, 2012.) Defendant infers that from the
    correction from an amount equaling the 2012 minimum to an amount equaling the 2013
    minimum that the court intended to impose the minimum, but erred as to which statute
    was in effect.
    Respondent contends that defendant failed to preserve this contention with the
    appropriate objection in the trial court. We agree. Generally, in the interests of fairness
    and judicial economy, only “claims properly raised and preserved by the parties are
    reviewable on appeal. [Citations.]” (People v. Scott (1994) 
    9 Cal.4th 331
    , 354 (Scott).)
    “‘It is both unfair and inefficient to permit a claim of error on appeal that, if timely
    brought to the attention of the trial court, could have been easily corrected or avoided.’
    [Citations.]” (People v. Earp (1999) 
    20 Cal.4th 826
    , 882.) The forfeiture rule reaches
    claims that a ruling violated constitutional rights, unless the claim of error was of the kind
    that required no action by the defendant to preserve it, or the defendant contends that
    17
    errors that were otherwise properly preserved for review had the additional legal
    consequence of violating the Constitution. (People v. Boyer (2006) 
    38 Cal.4th 412
    , 441,
    fn. 17.) Only unauthorized sentences fall into the first category, requiring no action to
    preserve the issue; discretionary sentencing choices require an objection. (People v.
    Dotson (1997) 
    16 Cal.4th 547
    , 554, fn. 6; Scott, 
    supra,
     9 Cal.4th at p. 354.)
    In general, a fine within the limits of the court’s discretion under the prior statute
    is not unauthorized, even if it is erroneous. (People v. Walz (2008) 
    160 Cal.App.4th 1364
    , 1369.) Restitution fines are set at the discretion of the court, which may impose
    any amount between the minimum and maximum that is “commensurate with the
    seriousness of the offense.” (§ 1202.4, subd. (b)(1).) Thus, as all the amendments to the
    statute raising the minimum fine maintained the maximum at $10,000, it was within the
    court’s discretion to impose a $280 fine, and defendant’s failure to object resulted in the
    forfeiture of the constitutional issue. (See People v. Boyer, 
    supra,
     38 Cal.4th at p. 441,
    fn. 17.)
    Defendant requests that we exercise our discretion to reach the forfeited issue by
    either modifying the sentence or remanding for the trial court to clarify its imposition of
    the fine. We decline to do so. First, as respondent observes, the court may have deemed
    the new minimum to be the appropriate amount to impose in this case, and in general, we
    must presume that the trial court was aware of and followed the applicable law. (People
    v. Stowell (2003) 
    31 Cal.4th 1107
    , 1114; Evid. Code, § 664.) In addition, the primary
    purpose of the ex post facto clause is “to prevent unforeseeable punishment.” (People v.
    Snook (1997) 
    16 Cal.4th 1210
    , 1221.) As the foreseeable range of punishment was
    between $200 and $10,000 at the time the crime was committed, and defendant’s fine fell
    within that foreseeable range, the primary purpose of the ex post facto clause was served.
    Finally, an important purpose of the forfeiture rule is to promote judicial economy by
    encouraging parties to bring easily corrected errors to the trial court in the first instance.
    (People v. Smith (2001) 
    24 Cal.4th 849
    , 852.) That purpose would not be served by a
    remand for a new sentencing hearing which could very well result in the same fine.
    18
    DISPOSITION
    The judgment is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    ____________________________, J.
    CHAVEZ
    We concur:
    __________________________, Acting P. J.
    ASHMANN-GERST
    __________________________, J.*
    FERNS
    ________________________________________________________________________
    * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
    article VI, section 6 of the California Constitution.
    19