In re Joshua K. CA2/4

Filed 5/31/13 In re Joshua K. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
In re JOSHUA K., A Person Coming
Under the Juvenile Court Law.
THE PEOPLE, B244337
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. TJ20089)
v.
JOSHUA K.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Charles R. Scarlett, Judge. Reversed in part, affirmed as modified, with directions.
Law Offices of Esther R. Sorkin and Esther R. Sorkin, 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, Steven D.
Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and
Respondent.
The juvenile court sustained a petition charging appellant Joshua K. with
grand theft of an automobile and unlawfully taking a vehicle, and found that
appellant committed the crimes to benefit a gang. Appellant contends that the
charge of unlawfully taking a vehicle was improperly sustained, and that there was
insufficient evidence to support the gang findings. We agree that the charge of
unlawfully taking a vehicle must be dismissed, but reject appellant‟s challenge to
the sufficiency of the gang allegation evidence. We therefore affirm in part,
reverse in part, and modify appellant‟s maximum confinement time to reflect our
determinations.
RELEVANT PROCEDURAL BACKGROUND
On June 5, 2012, a petition was filed under Welfare and Institutions Code
section 602, charging appellant in count 1 with grand theft of an automobile (Pen.
Code, § 487, subd. (d)(1)), in count 2 with unlawful driving or taking of a vehicle
(Veh. Code, § 10851, subd. (a)), and in count 3 with evading a police officer (Veh.
Code, § 2800.2, subd. (a)). Accompanying counts 1 and 2 were allegations that
appellant committed the offenses for the benefit of a criminal street gang (Pen.
Code, § 186.22, subd. (b)(1)(A)).
On July 20, 2012, the juvenile court sustained the petition and found the
gang allegations to be true. Appellant was declared a ward of the court, consigned
to the custody and control of a probation officer, and ordered suitably placed. The
court set appellant‟s maximum term of confinement at nine years and four months,
comprising three years for count 1, four years for the gang finding accompanying
count 1, eight months for each of counts 2 and 3, and one year for the gang finding
accompanying count 2.
2
FACTS
A. Prosecution Evidence
On June 2, 2012, at approximately 4:30 p.m., Jared Williams parked his
Honda Accord near the intersection of San Vincente and Holly Street in Compton.
Williams soon learned that the car was no longer there.
Los Angeles County Deputy Sheriff Jason Smith and his partner were
driving in a patrol car when they were notified regarding the missing Honda.
Shortly after 5:30 p.m., Smith saw the Honda and followed it. In response, the
Honda began to run red lights and increased its speed to 65 miles per hour. Smith
called for assistance and turned on his car‟s sirens and lights. The Honda wove
recklessly through traffic at a high speed, made a turn, crashed into a street pole,
and stopped.
The deputies arrested appellant, the Honda‟s driver, as he attempted to crawl
out of a side window. Appellant was wearing a blue Seattle Mariners baseball cap.
1
Smith interviewed appellant, who waived his Miranda rights. Appellant told
Smith that he had stolen the Honda.
Los Angeles County Deputy Sheriff Nina Gonzales, a gang investigator with
the Operation Safe Streets Bureau, testified as a gang expert. According to
Gonzales, the South Side Compton Crips (South Side) gang has approximately 261
members, who engage in murder, attempted murder, gun possession, narcotics
violations, theft, and vandalism. South Side members use the “S” from the Seattle
Mariners team as a common symbol, and often wear Seattle Mariners clothing.
Their major rivals include the Santana Block Compton Crips (Santana Block).
Gonzales opined that appellant was a South Side member on the basis of her
1
Miranda v. Arizona (1966) 384 U.S. 436.
3
personal interactions with him, including his statement to her that he belonged to
the gang.
In response to hypothetical questions, Gonzales also opined that appellant
committed his offense for the benefit of the South Side gang with the specific
intent to promote its criminal activities. According to Gonzales, there was an
active feud between the South Side and Santana Block gangs when appellant
committed his offenses, pointing to two murders and two assaults with a deadly
weapon shortly before appellant‟s offenses, and another car theft immediately
following those offenses. She opined that appellant‟s theft of the car was
preparation for a retaliatory crime by his gang.
B. Defense Evidence
Appellant presented no evidence.
DISCUSSION
Appellant contends (1) that the charge of unlawfully taking a vehicle was
improperly sustained, and (2) that there is insufficient evidence to support the gang
findings.
A. Lesser Included Offense
Appellant maintains that the charge of unlawfully taking a vehicle (Veh.
Code, § 10851, subd. (a)) must be dismissed as a lesser included offense of grand
theft of an automobile (Pen. Code, § 487, subd. (d)(1)). Generally, “multiple
convictions may not be based on necessarily included offenses.” (People v.
Pearson (1986) 42 Cal.3d 351, 355, italics omitted.) Because the two offenses in
question are predicated on the same events, appellant is correct that the former is
4
necessarily included within the latter. (People v. Barrick (1982) 33 Cal.3d 115,
127-128, reversed on another ground in People v. Collins (1986) 42 Cal.3d 378,
393; People v. Buss (1980) 102 Cal.App.3d 781, 784; see also People v. Kehoe
(1949) 33 Cal.2d 711, 713-716.) Respondent does not dispute this conclusion.
As the trial court‟s determination of appellant‟s maximum term of
confinement is based on the charge of unlawfully taking a vehicle, that term must
be reduced by eight months. (In re Asean D. (1993) 14 Cal.App.4th 467, 475-
476.) Moreover, because the gang enhancement accompanying the charge is also
infirm (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310), the maximum term
of confinement must be reduced by an additional year.
B. Sufficiency of the Evidence
Appellant contends there was insufficient evidence to support the gang
finding accompanying the grand theft charge. Penal Code section 186.22,
subdivision (b)(1), provides a sentence enhancement for a defendant 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 . . . .” To establish the enhancement, the
prosecution relied primarily on expert testimony from Deputy Sheriff Gonzales.
Appellant argues that Gonzales‟s testimony and the other trial evidence was
insufficient to show (1) that his offense was committed for the benefit of the South
Side gang, and (2) that he acted with the requisite specific intent. For the reasons
discussed below, we disagree.
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1. Standard of Review
Our inquiry follows established principles. “In determining whether the
evidence is sufficient to support a conviction . . . , „the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.‟ [Citations.] Under this standard, „an appellate court
in a criminal case . . . does not ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.‟ [Citation.] Rather, the
reviewing court „must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence -- that is,
evidence which is reasonable, credible, and of solid value -- such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.‟
[Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224, italics omitted.)
2. Expert Testimony
Because appellant‟s contentions target the adequacy of Deputy Sheriff
Gonzales‟s testimony, we examine the principles governing expert testimony
regarding gangs. Expert testimony may be presented to establish the culture and
habits of criminal street gangs. (People v. Gardeley (1996) 14 Cal.4th 605, 617
(Gardeley).) Such testimony is subject to the standards generally applicable to
expert opinion. (Id. at pp. 617-619.) Subdivision (b) of Evidence Code section
801 provides that expert opinion must be “[b]ased on matter . . . that is of a type
that reasonably may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates . . . .” Under this provision, “[e]xpert
testimony may be founded on material that is not admitted into evidence and on
evidence that is ordinarily inadmissible, such as hearsay, as long as the material is
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reliable and of a type reasonably relied upon by experts in the particular field in
forming opinions. [Citation.] Thus, a gang expert may rely upon conversations
with gang members, his or her personal investigations of gang-related crimes, and
information obtained from colleagues and other law enforcement agencies.”
(People v. Duran (2002) 97 Cal.App.4th 1448, 1463.)
As with other types of expert witness, the prosecution may present testimony
from a gang expert by asking hypothetical questions. (People v. Gonzalez (2006)
38 Cal.4th 932, 946.) Thus, a gang expert may render an opinion on the basis of a
hypothetical question that asks the expert to assume the truth of specified facts,
provided the hypothetical is “rooted in facts shown by the evidence.” (Gardeley,
supra, 14 Cal.4th at p. 618.)
In view of these foundational requirements, gang expert testimony may fail
to constitute substantial evidence even if it is admitted. (In re Alexander L. (2007)
149 Cal.App.4th 605, 611-614 (Alexander L.).) Generally, “expert testimony does
not constitute substantial evidence when based on conclusions or assumptions not
supported by evidence in the record [citation], or upon matters not reasonably
relied upon by other experts [citation]. Further, an expert‟s opinion testimony does
not achieve the dignity of substantial evidence where the expert bases his or her
conclusion on speculative, remote or conjectural factors. [Citation.]” (People ex
rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567.)
3. Underlying Proceedings
At the beginning of the hearing on the offenses alleged against appellant,
defense counsel sought to exclude evidence of five crimes that Deputy Sheriff
Gonzales intended to rely upon in testifying about the gang allegation. Each crime
occurred within a short period encompassing the car theft charged against
7
appellant, which took place shortly after 4:30 p.m. on June 2, 2012. The five
crimes were (1) a murder in South Side territory at 11:10 p.m. on June 1, 2012; (2)
a murder in Santana Block territory at 12:04 a.m. on June 2, 2012; (3) an assault
with a deadly weapon in Santana Block territory at 12:15 a.m. on June 2, 2012; (4)
an assault with a deadly weapon in Santana Block territory at 1:00 a.m. on June 2,
2012; and (5) a car theft in South Side territory at 5:45 p.m. on June 2, 2012.
Defense counsel argued that the evidence of the crimes was irrelevant and more
prejudicial than probative. The trial court denied his motion to exclude the
evidence.
Later, Deputy Sheriff Gonzales testified that she had been a gang
investigator with the Operation Safe Streets Bureau for four and a half years. She
was assigned to investigate crimes by members of specific gangs, including the
South Side gang. For purposes of showing that the South Side gang constituted a
“criminal street gang” (§ 186.22, subd. (b)(1)), Gonzales testified regarding the
convictions of two gang members for murder and attempted murder. Gonzales was
familiar with the convictions through conversations with the pertinent investigating
officers.
After testifying that appellant had admitted his membership in the South
Side gang, Gonzales described her role in the investigation of the crimes charged
against him. On June 13, 2012, she executed a search warrant for appellant‟s
residence, where she found two composition books in his room. Inside the books
she found the initials of certain rival gangs, with “187” written nearby. Gonzales
opined that the “187” meant that appellant was prepared to kill members of the
2
rival gangs.
2
Penal Code section 187 defines the crime of murder.
8
When the prosecutor began to question Gonzales regarding her knowledge
of the first of the five crimes discussed above (the June 1 murder), defense counsel
asserted an objection based on relevance. After the prosecutor noted that the
objection had been overruled, the following colloquy occurred between the trial
court and defense counsel:
“[Court]: What about [Gonzales‟s] qualifications? Is there any objection?
Do you have any objections concerning her qualifications?
“[Defense Counsel]: As an expert?
“[Court]: Yes. Based on training and experience.
“[Defense Counsel]: No, your honor.
“[The Court]: All right. Then the court will find she is an expert based on
training and experience.”
Following this ruling, the prosecutor examined Gonzales regarding her
awareness of the five crimes, based on “[her] background, training and
experience[,] and . . . knowledge of ongoing investigations.” Gonzales described
each of the crimes; in addition, she stated that Santana Block gang members were
suspected of having committed the crimes in South Side territory, and that South
Side gang members were suspected of having committed the crimes in Santana
Block territory. She further testified that the car appellant had allegedly stolen was
located in territory of the Leuders Park Piru gang, which is hostile to the South
Side gang.
In response to hypothetical questions, Gonzales opined that a South Side
gang member who stole a car after two murders and two assaults involving another
rival gang would have done so for the benefit of his own gang, and with the
specific intent of promoting its criminal conduct. According to Gonzales, the four
earlier crimes showed that “there [was] an ongoing feud between Santana Block
9
and South Side.” She further stated that under such circumstances, “it is very
common for gang members to steal vehicles in order to go out and commit . . .
retaliatory crimes.”
When cross-examined, Gonzales acknowledged that the first four of the five
crimes described above (the murders and assaults) were the subject of open
investigations, and that only the fifth crime (the car theft following the crime
alleged against appellant) had been “tried to finality.” She also stated the
perpetrators of the first four crimes had not been “determined with certainty.”
During the re-direct examination, the prosecutor asked Gonzales whether
she had encountered appellant during the investigations of the two murders
preceding the crimes charged against him. Gonzales stated when she arrived at the
scene of the first murder, she saw appellant and several of his friends. He was
wearing a Seattle Mariners baseball cap and a sweatshirt with the letters “OTS” on
the front. According to Gonzales, the letters referred to the “Original Tiny Squad,”
which is the South Side “clique” to which appellant belonged. Appellant told her
that he went to the crime scene because he “had received a phone call that a
shooting had occurred.”
4. Analysis
Appellant contends there was insufficient evidence to establish that his car
theft was “committed for the benefit of” the South Side gang, and that he acted
with the “specific intent” to promote his gang‟s activities. (Pen. Code, § 186.22,
subd. (b)(1).) As explained below, we reject his contentions.
Regarding the benefit of appellant‟s car theft to his gang, Gonzales
described four violent crimes preceding the car theft that occurred during a 24-hour
period within the territories claimed by the South Side gang and its rival, the
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Santana Block gang. According to Gonzales, appellant wore gang-related clothing
to the scene of the first murder after a phone call alerted him to the crime;
moreover, when appellant stole the car, he wore a baseball cap associated with his
gang. Based on Gonzales‟s training, experience, and awareness of the
investigations into the crimes, she opined that appellant‟s car theft was a
preparatory act for retaliation in an ongoing gang feud. In our view, this evidence
was sufficient to show there was a gang feud (see People v. Hill (2011) 191
Cal.App.4th 1104, 1122-1123 [gang expert properly testified regarding the
existence of gang war on basis of his knowledge of ongoing investigations]), and
that the car theft was for the benefit of appellant‟s gang (see People v. Garcia
(2007) 153 Cal.App.4th 1499, 1512-1514 [gang expert‟s testimony established that
defendant possessed gun for benefit of his gang]).
We reach the same conclusion regarding the sufficiency of the evidence
concerning appellant‟s intent. As noted above, appellant wore gang-related
clothing when he showed up at the murder scene and when he stole the car; in
addition, his composition books displayed notations indicating his willingness to
commit crimes on behalf of his gang. This evidence, coupled with Gonzales‟s
opinions regarding the gang feud and the other circumstances surrounding
appellant‟s car theft, was sufficient to show appellant‟s intent. (People v. Gamez
(1991) 235 Cal.App.3d 957, 968, fn. 3, disapproved on another ground in
Gardeley, supra, 14 Cal.4th at p. 624, fn. 10 [gang expert‟s testimony that the
defendant‟s crimes were retaliation for a prior crime by a rival gang established the
requisite intent, in view of evidence that the prior crime was gang-related].)
Appellant‟s principal challenge to the sufficiency of the evidence is that
Gonzales‟s testimony was inadequate to establish the five “additional crimes,”
namely, the two murders and two assaults preceding appellant‟s car theft, and the
11
car theft following appellant‟s crime. He asserts: “In all of these cases, it is
completely unknown how Detective Gonzales became „aware‟ of the crime at
issue, or whether her „knowledge‟ or „awareness‟ . . . [was] based on first[-]hand
observation or fourth[-] hand rumor.” He further argues that because no
foundation was laid regarding Gonzales‟s knowledge of the crimes, her testimony
based on them must be disregarded, thereby leaving insufficient evidence to
support the gang finding. In this regard, he states that “[o]nce these
unsubstantiated events are eliminated, . . . there is insufficient factual support for
[Gonzales‟s] opinion[s].” We conclude that appellant has forfeited this contention,
as he raised no foundational objection to Gonzales‟s testimony regarding the
additional crimes.
Experts may testify regarding the factual bases of their opinions in two
distinguishable ways. As explained above (see pt.B.2., ante), in expressing an
opinion, an expert is permitted to rely on inadmissible information, provided that
the information meets “„a threshold requirement of reliability.‟” (People v. Nelson
(2012) 209 Cal.App.4th 698, 707-711 (Nelson), quoting People v. Dodd (2005)
133 Cal.App.4th 1564, 1569.) To meet that threshold requirement, experts may
describe the factual foundations of their opinions without specifying the details of
the inadmissible matters. (Nelson, supra, 209 Cal.App.4th at p. 708.) In addition,
experts, like lay witnesses, are permitted to testify regarding facts of which they
have personal knowledge. (People v. Southern Cal. Edison Co. (1976) 56
Cal.App.3d 593, 606.) In offering opinion testimony, experts may rely on these
facts. (People v. Williams (1992) 3 Cal.App.4th 1326, 1335; Evid. Code, § 801,
subd. (b).)
Here, Gonzales relied on the additional crimes in offering her opinions, but
the record does not show whether she had personal knowledge of each crime.
12
With respect to the first murder, Gonzales testified she was present at the scene of
the murder and spoke to appellant. Her testimony regarding the remaining four
crimes was based on her “knowledge of ongoing investigations.”
To the extent appellant argues that Gonzales‟s personal knowledge of the
crimes was not established, he has forfeited the objection. Under subdivision (a) of
Evidence Code section 702, a witness‟s personal knowledge need only be shown
“[a]gainst the objection of a party.” In view of this provision, in the absence of an
objection, the trial court is not required to determine whether witnesses have
personal knowledge before admitting their testimony. (People v. Lewis (2001) 26
Cal.4th 334, 357.)
Appellant has also forfeited his contention, insofar as he attacks Gonzales‟s
expert opinions on the ground that no “„threshold requirement of reliability‟” was
made regarding her information concerning the crimes (Nelson, supra, 209
Cal.App.4th at pp. 707-711). Generally, objections to the foundations of an
expert‟s opinion must be made at trial to preserve them for appeal. (People v.
Bolin (1998) 18 Cal.4th 297, 321 [defendant‟s failure to object forfeited his
contention that expert‟s testimony was inadmissible because he failed to visit crime
scene]; People v. Rodriguez (1969) 274 Cal.App.2d 770, 775-776 [defendant‟s
failure to object forfeited his contention that expert‟s opinion was based on
hearsay].) Here, appellant‟s counsel asserted no foundational objections to
Gonzales‟s testimony; on the contrary, he affirmed that he had no objections
related to her “training and experience.” Under these circumstances, appellant may
not challenge the reliability of Gonzales‟s information regarding the crimes.
(Nelson, supra, at pp. 707-711 [appellant forfeited her foundational challenges to
report relied upon by expert witnesses by failing to raise them before trial court].)
13
Appellant maintains that his failure to assert foundational objections to
Gonzales‟s testimony does not undermine his contention regarding the sufficiency
of the evidence. Pointing primarily to People v. Bassett (1968) 69 Cal.2d 122(Bassett) and In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.), he argues
that the record establishes that Gonzales‟s testimony did not constitute substantial
3
evidence. He is mistaken.
In Bassett, the defendant was charged with murder. (Bassett, supra, 69
Cal.2d at p.124.) At trial, his expert witnesses testified that his mental illness
prevented him from forming the mental state required for murder. (Id. at p. 128.)
In rebuttal, the prosecution presented two experts who had never examined the
defendant. (Id. at p. 140.) Although the experts opined that the defendant
possessed the mental capacity to commit murder, they offered no reasoning to
support their conclusion. (Id. at p. 144.) Our Supreme Court concluded that the
experts‟ testimony did not constitute substantial evidence regarding the defendant‟s
mental capacity, stating: “When the foundation of an expert‟s testimony is
determined to be inadequate as a matter of law, we are not bound by an apparent
conflict in the evidence created by his bare conclusions.” (Id. at p. 148.)
Here, the record does not show that Gonzales‟s expert testimony lacked
adequate foundation; it shows only that the foundation of her testimony was never
fully elaborated. Defense counsel had already acknowledged her expertise, “based
on [her] training and experience,” and her answers to the questions regarding other
crimes was expressly based on her “knowledge of ongoing investigations.” If
3
Appellant also directs our attention to In re Lucero L. (2000) 22 Cal.4th 1227,
1242-1243, in which our Supreme Court held that Welfare and Institutions Code 355
does not bar the admission of social studies reports containing hearsay in dependency
proceedings. As that statute is inapplicable here, Lucero L. provides no guidance on the
issue before us.
14
appellant‟s counsel believed this foundation was insufficient, counsel was obliged
to raise the objection before the trial court in order to preserve the contention.
(Nelson, supra, 209 Cal.App.4th at pp. 710-711.) As explained in Nelson, where
the prosecution could have addressed any foundational objections had they been
called to the court‟s attention, the defendant “[may] not sit idly by and expect relief
4
on appeal.” (Id. at p. 711.)
In Daniel C., a petition was filed, charging a juvenile with the robbery of a
supermarket. (Daniel C., supra, 195 Cal.App.4th at p. 1353.) Accompanying the
charge was a gang allegation. (Ibid.) At the hearing on the petition, the evidence
showed only that the juvenile wore a red baseball cap when he entered the
supermarket. (Id. at p. 1354.) He was accompanied by two other young men who
also wore items of red clothing. (Id. at pp. 1353-1354.) After the other young men
left the supermarket, appellant took a bottle of bourbon and attempted to flee.
(Id. at p. 1353.) When the assistant manager tried to stop him, a fight ensued,
resulting in an injury to the assistant manager. (Ibid.) A gang expert testified that
the juvenile belonged to a gang whose characteristic color was red. (Id. at
p. 1356.) In addition, he opined that the juvenile stole the bottle of bourbon to
4
For similar reasons, we reject appellants‟ contention that Gonzales‟s testimony
was foundationally defective, insofar as he relies on Alexander L., supra, 149
Cal.App.4th 605, In re Nathaniel C. (1991) 228 Cal.App.3d 990, and In re Leland D.
(1990) 223 Cal.App.3d 251. In each of those cases, the record showed on its face that the
gang expert‟s opinions lacked an adequate foundation. (Alexander L., supra, at pp. 611-
612 [despite foundational objection by defendant, gang expert offered no explanation of
his purported knowledge regarding gang‟s crimes]; In re Nathaniel C., supra, 228
Cal.App.3d at p. 1003 [gang expert acknowledged that he had no personal knowledge of
gang‟s crimes, and offered only “nonspecific hearsay” as the basis of his testimony]; In
re Leland D., supra, 223 Cal.App.3d at p. 259 [gang expert, when pressed to describe the
basis for his opinion, identified only “nonspecific hearsay and arrest information . . . .”].)
As explained above, that is not the case here.
15
benefit his gang. (Ibid.) The appellate court concluded that neither the young
men‟s attire nor their conduct sufficiently supported the expert‟s opinion that the
juvenile acted with the specific intent to promote his gang‟s criminal activity.
(Id. at p. 1350.)
In contrast with Daniel C., the record before us discloses no similar infirmity
in Gonzales‟s opinions. As explained above, her conclusions relied not only on
appellant‟s own car theft, but also on other facts, including the pattern of
apparently gang-related crimes preceding appellant‟s crime, her knowledge of the
investigations into those crimes, and appellant‟s appearance at the scene of the first
of those crimes. We therefore reject appellant‟s contention that her opinions did
5
not constitute substantial evidence to support the gang finding. In sum, there is
sufficient evidence to support the gang finding accompanying appellant‟s
conviction for grand theft of an automobile.
5
For similar reasons, we reject appellants‟ contention that Gonzales‟s testimony did
not constitute substantial evidence regarding the gang finding, insofar as he relies on
People v. Ochoa (2009) 179 Cal.App.4th 650 and People v. Ramon (2009) 175
Cal.App.4th 843. Those cases stand for the proposition that the commission of a
carjacking or car theft by gang members does not, by itself, support an expert opinion that
the crime benefited the gang or that the members intended to promote their gang‟s
criminal activities. (People v. Ochoa, supra, 179 Cal.App.4th at pp. 656-665; People v.
Ramon, supra, 175 Cal.App.4th at pp. 849-853.) That proposition is inapplicable here, as
Gonzales‟s opinions were based on facts beyond the circumstances of appellant‟s own car
theft.
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DISPOSITION
The judgment is modified to strike the sustained charge of unlawful driving
or taking of a vehicle (Veh. Code, § 10851, subd. (a)) and the accompanying gang
enhancement (Pen. Code, § 186.22, subd. (b)(1)(A)), and appellant‟s maximum
term of confinement is reduced to seven years and eight months. The judgment is
affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.
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