Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Marsha N. Revel, Judge No. BA310233
George O. Benton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Christopher Mathis, appeals the judgment entered following his conviction, by jury trial, for first degree murder and possession of a firearm by a felon, with firearm use and gang enhancement findings (Pen. Code, §§ 187, 12021, 12022.53, 186.22, subd. (b)). Mathis was sentenced to state prison for a term of 50 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
a. The shooting.
On October 2, 2006, Myesha Brown borrowed her roommate’s rented car and drove to her mother’s house. The rental car was a red Chevrolet Cobalt. At her mother’s house, Brown saw an acquaintance, Akil Robbins, who asked if he could borrow the car to drive to his girlfriend’s house. Robbins said he would return in 20 minutes. Brown asked why he couldn’t get a ride from the people he was with, but Robbins did not answer. Brown loaned him the car sometime after 5:00 p.m. and she never saw it again. Brown called the police, but instead of telling them the truth she said she had left the car unattended and an unknown person had taken it.
Because Brown was unavailable at trial, her preliminary hearing testimony was read to the jury.
At about 6:00 p.m. that same day, Christopher Thompson was on a second-story balcony near the intersection of Western and Vernon. He saw a young man, later identified as Ernest Crayton, standing on Western. Crayton threw a Rollin 40’s gang sign to someone across the street. Thompson then saw a red car drive up and stop next to Crayton. A man got out of the passenger seat, approached Crayton, and shot him five or six times. The man got back into the red car, which drove away quickly. Thompson could not identify the gunman.
A.G. was waiting for a bus on the corner of Western and Vernon. He heard three or four gunshots coming from a red Cobalt Chevrolet that had its front passenger door open. Defendant Mathis was standing on the sidewalk next to the car, holding a gun. Mathis fired another shot and got back into the car, which drove away fast. Robbins was driving.
A patrol car responded to the shooting and engaged in a high speed chase with the red Chevy, which finally stopped in the middle of the street. Two men jumped out: Robbins from the driver’s seat and Mathis from the passenger seat. The men fled down an alley. Police canine search teams were brought in and they discovered Robbins and Mathis hiding in two separate locations. A nine-millimeter semiautomatic handgun was discovered under the driver’s seat of the red Chevy. Mathis’s fingerprint was found on the outside of the Chevy.
Crayton died from having been shot five times, twice in the head. A bullet recovered from his body matched the gun found inside the Chevy.
b. Gang evidence.
Mathis and Robbins were identified as members of the East Coast Crips gang.
Los Angeles Police Officer Alfred Garcia testified as an expert on the East Coast Crips. The gang had about 300 documented members in Los Angeles, and over 1,000 if undocumented members were included. The gang had different sets or cliques, which are groups of individuals who commit crimes together. The 76-East Coast Crips was one such clique.
Garcia testified the East Coast Crips committed homicides, bank robberies, street robberies, auto thefts, drive-by shootings, assaults with deadly weapons, narcotics sales, carjackings, and other crimes. Garcia opined most gang members commit violent crimes. Hardcore gang members “are the ones that are doing the majority of the work; transporting vast amounts of narcotics,” “dealing with guns,” and “committing the violent crimes.” In January 2005, Edward Hunter, a 69-East Coast Crips member, committed a murder for the benefit of the East Coast Crips gang. In September 2003, Rayshawn Richards, a 76-East Coast Crips member, committed a murder. Garcia knew about these crimes because he had assisted homicide detectives in both cases, and because the crimes resulted in convictions as shown by court documents.
In April 2005, Mathis told Garcia he was an active member of the 76-East Coast Crips. Mathis had tattoos on his leg and stomach indicating he was a 76-East Coast Crips member. Robbins had tattoos on his neck, hands, and arms indicating he, too, was a 76-East Coast Crips member. These prominent tattoos showed Mathis and Robbins were hardcore gang members. The East Coast Crips had a rivalry with the Rollin 40’s gang. When he testified at the preliminary hearing, Garcia had not been aware of this rivalry, but he had since learned about it from colleagues. The territory claimed by the Rollin 40’s gang was three or four miles from East Coast Crips territory. Someone from the East Coast Crips would not commonly go into Rollin 40’s territory because it was dangerous for a gang member to be in a rival’s territory. Gang members typically used stolen or rented cars to commit crimes in order to avoid detection.
Gang members use hand signs which are associated with their particular gang. Garcia testified typical gang members would be offended by seeing someone flash a rival gang’s hand sign, even if it was not directed at them: “[I]f the rival gang members are in the vicinity or somewhere they can see this gang member throwing up the gang sign, it is still a showing of disrespect. Whether [or not it is] focused at them, they are going to take action. They have a chance... to kill a rival gang member. [¶] I mentioned earlier that one of the top things that you can do in a gang is killing a rival gang member.... If they see an opportunity of a rival gang member identifying himself, throwing gang signs at someone else, they will take the opportunity to take him out.”
Given a hypothetical grounded in the facts of this case, Garcia opined the shooting of Crayton had been committed for the benefit of the 76-East Coast Crips. Having seen the victim flash a Rollin 40’s hand sign, the assailants would feel compelled to take violent action. Killing a gang rival would elevate the reputation of the individual gang members and the reputation of their gang. Such a killing would also spread fear and intimidation among neighboring residents, making them reluctant to assist police investigations of future gang crimes.
2. Defense evidence.
Gang intervention specialist Kimi Scudder testified on behalf of Robbins. She thought only five to ten percent of gang members commit violent crimes. However, all gang members commit some type of crime, usually crimes for profit. Asked how the East Coast Crips make money, Scudder testified: “Drug sales. That’s the main one. They have... burglaries, robberies, [grand theft auto’s]. They steal cars and sell them.... [T]hey commit a lot of white-color [sic] crime also, check fraud, that type of thing. [¶] It is not just all the wild, wild west shoot ’em up thing. They have some more sophisticated type crimes, also.” Scudder testified the proceeds from these crimes did not go to the gang; rather, they went to the individual gang members.
Scudder opined the 76-East Coast Crips and the Rollin 40’s were allies. Given a hypothetical based on the facts of this case, she concluded there was insufficient evidence to determine the motive for Crayton’s shooting. Scudder agreed shootings could benefit a gang by showing the gang was willing to be violent.
Mathis did not present any evidence.
CONTENTIONS
1. There was insufficient evidence to sustain the gang enhancements.
2. The trial court erred when it instructed the jury on the elements of the gang enhancement.
DISCUSSION
1. The evidence was sufficient to sustain the gang enhancement findings.
Mathis contends there was insufficient evidence to sustain the gang enhancement findings. He asserts the prosecution failed to prove either the “primary activity” element or the “benefit/direction/association” element of section 186.22, subdivision (b). These claims are meritless.
The jury found a gang enhancement allegation true in connection with both the murder and the felon in possession of a gun convictions. At sentencing, the trial court stayed the gang enhancement attached to the murder conviction (count 1), while imposing a gang enhancement term as part of a concurrent 25 years-to-life sentence on the felon in possession conviction (count 3).
a. Legal principles.
As we explained in People v. Duran (2002) 97 Cal.App.4th 1448: “Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]” (Id. at p. 1457.)
“When determining whether the evidence [is] sufficient to sustain a criminal conviction [or an enhancement], we review the entire record in the light most favorable to the judgment 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.]’ [Citations.] ‘We draw all reasonable inferences in support of the judgment. [Citation.]’ [Citations.] Reversal is not warranted unless it appears ‘ “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” [Citation.]’ [Citation.]” (People v. Duran, supra, 97 Cal.App.4th at pp. 1456-1457.) “The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
b. There was sufficient evidence to prove the “primary activity” element of the gang enhancements.
Mathis contends the prosecution failed to prove that a primary activity of the East Coast Crips was the commission of an offense enumerated in section 186.22, subdivision (e). We disagree.
“To trigger the gang statute’s sentence-enhancement provision (§ 186.22, subd. (b)), the trier of fact must find that one of the alleged criminal street gang’s primary activities is the commission of one or more of certain crimes listed in the gang statute. In People v. Gardeley [(1996)] 14 Cal.4th 605..., that requirement was satisfied by the testimony of a police gang expert who expressed his opinion that the primary activities of the group in question were drug dealing and witness intimidation, both statutorily listed crimes.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.... [¶] Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Id. at pp. 323-324.) “The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang’s primary activities. [Citations.]” (People v. Duran, supra, 97 Cal.App.4th at p. 1465.)
Mathis argues there was insufficient evidence of the primary activity element because “the prosecutor neglected... to ask his gang expert what the primary activities of appellant’s... gang were. Several times, he asked about matters related to this issue, but the actual question was never posed, nor ever answered.” It is true Garcia never uttered the words “primary activity.” It is also true the easiest way of proving this element is to have the gang expert opine that a gang’s primary activities include one or more of the enumerated crimes. That is not, however, the only way to prove this element.
In People v. Duran, supra, 97 Cal.App.4th 1448, when asked about the gang’s primary activities, the expert testified: “ ‘There’s several. The main one is putting fear into the community. Now, when I say that, what I mean is often these gang members are committing robberies, assault with deadly weapons, narcotics sales, and they’re doing it as a group. [¶] And in doing so, they start claiming certain territories within the city.... [¶] And they’re controlling either the narcotics sales in that area, they’re committing the robberies in this area, all for the purpose of fear and intimidation of the community.’ ” (Id. at p. 1465, italics omitted.) Rejecting defendant’s argument this testimony was insufficient because “putting fear into the community” is not an enumerated offense, we held “[t]his testimony supported a jury finding [these gangmembers] were engaged in more than the occasional sale of narcotics, robbery, or assault.” (Ibid.)
When Officer Garcia was asked “What type of crime does [the East Coast Crips] gang commit?”, he testified: “I’ve personally been involved in homicides, with bank robberies, street robberies, armed robberies, with grand theft autos, stealing cars, drive-by shootings, [assaults with deadly weapons], gang members armed with weapons, gang members with narcotics for sales [sic], car-jackings, domestic violence, and other minor crimes.” Discussing a dollar-sign tattoo Mathis had on his back, Garcia explained it signified “making money. That’s one part of their job is making money out there. [¶] Q. And what’s the significance of making money to a criminal street gang? [¶] A. It finances their activities. Narcotics is the No. 1 – the main source of income, and from that... money is used to purchase more narcotics, purchase guns to protect markets and protect neighborhoods, and also it funds activities in the neighborhood. It is also the money used for gang members that are currently in prison. They put money on their books and help them out in prison and make life a little easier.”
Kimi Scudder, the defense gang expert, also testified the East Coast Crips made money by trafficking in drugs and committing burglaries, robberies, car thefts and check fraud. The testimony from the two gang experts, at a minimum, was sufficient to prove drug trafficking was one of the East Coast Crips’s “ ‘chief’ or ‘principal’ occupations” (People v. Sengpadychith, supra, 26 Cal.4th at p. 323), i.e., that the gang “engaged in more than the occasional sale of narcotics” (People v. Duran, supra, 97 Cal.App.4th at p. 1465).
Mathis’s reliance on In re Alexander L. (2007) 149 Cal.App.4th 605, to support his claim is misplaced. There, the entirety of the expert’s testimony was: “When asked about the primary activities of the gang, he replied: ‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’ No further questions were asked about the gang’s primary activities....” (Id. at p. 611.) This evidence was deemed insufficient for the following reasons: “No specifics were elicited as to the circumstances of these crimes, or where, when, or how Lang had obtained the information. He did not directly testify that criminal activities constituted [the gang’s] primary activities. Indeed, on cross-examination, Lang testified that the vast majority of cases... he had run across were graffiti related.” (Id. at pp. 611-612, fn. omitted, italics added.)
The Court of Appeal pointed out there was no evidence the gang’s graffiti-related activities amounted to felony vandalism, one of the enumerated crimes listed in the gang enhancement statute. (§ 186.22, subd. (e)(20); (In re Alexander L., supra, 149 Cal.App.4th at p. 612, fn. 2.)
Alexander L. went on to hold: “Even if we could reasonably infer that [the expert] meant that the primary activities of the gang were the crimes to which he referred, his testimony lacked an adequate foundation.... [¶] We cannot know whether the basis of [his] testimony on this point was reliable, because information establishing reliability was never elicited from him at trial. It is impossible to tell whether his claimed knowledge of the gang’s activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay. [Citation.] [His] conclusory testimony cannot be considered substantial evidence as to the nature of the gang’s primary activities.” (In re Alexander L., supra, 149 Cal.App.4th at p. 612, fns. omitted.)
But Garcia did not, like the expert in Alexander L., testify the vast majority of crimes committed by the East Coast Crips fell outside the ambit of the gang enhancement statute. As for Alexander L.’s concern about the reliability of the expert’s opinion, Garcia testified he personally had been involved in investigating the crimes he testified had been committed by the East Coast Crips.
There was sufficient evidence to prove the primary activity element of the gang enhancement.
c. There was sufficient evidence to prove the “benefit/direction/association” element of the gang enhancement.
Mathis contends the prosecution failed to prove he had committed the shooting “for the benefit of, at the direction of, or in association with any criminal street gang....” (§ 186.22, subd. (b)(1).) This claim is meritless.
(1) Sufficient evidence the shooting was gang-related.
Mathis initially claims the evidence purporting to show the shooting of Crayton had been gang-related was too unreliable and otherwise insufficient. Mathis makes the following arguments: it was not even clear Crayton had thrown a gang sign because Thompson was an unreliable witness; even if Crayton had thrown a gang sign, there was no convincing evidence Mathis or Robbins saw it; Garcia was not an expert on the Rollin 40’s gang and admitted it was possible Crayton had been killed for personal reasons. We are not persuaded by this reasoning.
The question of Thompson’s reliability was thoroughly explored at trial. Initially he denied having seen a red car or anyone standing on the street. He also denied having been interviewed by police the night of the shooting. But after acknowledging he was unhappy about having to testify, Thompson testified he told police that night he had seen a young man either wave or throw a gang sign, after which a red car drove up, the passenger got out, walked over to the young man and shot him. Detective Richard Gordon testified he interviewed Thompson the night of the shooting: “He told me he saw the victim on the west side of [Western] flashing what looked like gang signs from the Rollin 40’s with his hands to somebody that was on the east side of the street.” Thompson testified he told Gordon that Crayton “was waving. I didn’t say anything about no gang signs being thrown up,” but he also conceded he had been honest with Gordon and that Gordon did not tell him what to say.
Pressed on this issue during cross-examination, Gordon testified: “I’ve had a chance to review the statement... and Mr. Thompson told me that he threw a gang sign; Rollin 40’s gang sign. That was his statement on that night.”
Although Garcia had been unaware of the rivalry between the East Coast Crips and the Rollin 40’s when he testified at the preliminary hearing, his trial testimony was based on information he subsequently obtained from colleagues. Garcia testified: “Since the time that I testified at the preliminary hearing..., I spoke with Southwest officers, gang officers, 76 gang officers, homicide detectives, regarding the rivalry that there is between 76 and Rollin 40’s.” This testimony provided a reliable basis for Garcia’s opinion the two gangs were rivals. (See People v. Gardeley, supra, 14 Cal.4th at p. 620 [gang expert’s opinion based on “information from his colleagues and various law enforcement agencies” provided reasonable basis for jury’s gang finding].) There was no reason to doubt Garcia’s testimony the shooting had occurred inside territory claimed by the Rollin 40’s.
There was no direct evidence Mathis and Robbins saw Crayton throw the Rollin 40’s gang sign. There was, however, ample circumstantial evidence they saw Crayton do this and that was why they attacked him. After Robbins surreptitiously gained use of an untraceable rental car, he and Mathis drove into a rival gang’s territory taking a gun with them. Eyewitness testimony showed that seconds after Crayton flashed a Rollin 40’s gang sign, Robbins stopped the car and Mathis got out to shoot Crayton. There was no evidence either Robbins or Mathis had a personal reason for shooting Crayton. Given the testimony of Detective Garcia about how gang members would react to seeing a rival gang’s hand sign, only the fact Mathis and Robbins belonged to the East Coast Crips explains this killing.
(2) Sufficient evidence of “benefit/direction/association” element.
Mathis next claims that even if the evidence showed the murder was somehow gang-related, there was insufficient evidence he committed it “in association with” a criminal street gang. As support for this claim, he relies on two federal cases addressing a different issue: whether there was sufficient evidence to prove the specific intent element of a gang enhancement. (See Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1080 [“[T]he defendant must commit the crime with the specific intent to aid or abet the criminal conduct of the gang. This is precisely the evidence lacking in Briceno’s case.”]; Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103 [“There is nothing in this record, however, that would support an inference that Garcia robbed Bojorquez with the specific intent to facilitate other criminal conduct by the [gang]”].)
But Mathis is conflating two different elements of section 186.22, subdivision (b), which requires (1) evidence “of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang,” and (2) evidence that the felony was committed “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Moreover, the first element is given in the disjunctive: “for the benefit of, at the direction of, or in association with.” So even if there was insufficient evidence to prove the “in association with” prong, the enhancement was properly imposed if the evidence showed the murder had been committed “for the benefit of” the East Coast Crips. As it turns out, there was sufficient evidence to support either theory.
Given a hypothetical based on the facts of this case, the gang expert testified Crayton’s murder would have been committed for the benefit of the East Coast Crips because: it took place in rival gang territory; the display of a rival gang sign was disrespectful even if not intended to be seen by the defendants; in this situation the honorable thing to do was to attack Crayton; by doing so, Mathis benefitted both himself and his gang by demonstrating a willingness to use extreme violence against a rival gang. This was sufficient to prove the “benefit” prong of the benefit/direction/association element of the gang enhancement statute. (See People v. Romero (2006) 140 Cal.App.4th 15, 19 [evidence showed shootings committed for gang’s benefit where they took place in rival gang territory and, “whether or not the victims were gang members, a shooting of any African American men would elevate the status of the shooters and their entire gang”]; see also People v. Ortiz (1997) 57 Cal.App.4th 480, 484 & fn. 3 [crime committed as pay back against rival gang was committed to benefit defendant’s gang].)
Additionally, there was sufficient evidence Mathis was acting “in association with” the gang because he acted in combination with Robbins, a fellow gang member. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [“the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members”]; see also People v. Leon (2008) 161 Cal.App.4th 149, 163 [where People presented evidence defendant committed crimes “in association with Rodriguez, a fellow gang member,” there was sufficient evidence defendant “committed the offenses ‘in association with any criminal street gang’ ”]; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332 [”Defendant, who admitted membership in King Kobras, committed the crimes with Garcia, another admitted member. That Garcia was also defendant’s brother-in-law does not cancel out that membership. [The gang expert] testified this evidence showed defendant committed the robbery in association with the gang”].)
Mathis argues that under the reasoning of these cases “little, if anything, else needed to be shown except that both defendants were gang members.” Not so. As Morales pointed out: “[I]t is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.” (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) In the case at bar, too, there was no evidence Robbins and Mathis were on a frolic of their own unrelated to their gang membership.
Hence, the evidence was sufficient to prove Mathis committed the shooting “for the benefit of, at the direction of, or in association with any criminal street gang....” (§ 186.22, subd. (b)(1).)
2. Instructional error.
Mathis contends the trial court committed instructional error when it responded to a jury request for help understanding the words “in association” in the phrase “in association with a criminal street gang.” This claim is meritless.
During deliberations, the jury sent the trial court the following note: “We need a clear definition of ‘in association’ with a criminal street gang. [¶] The court’s definition, please.” The two defense attorneys proposed the following definition: “The act of combining together for a common purpose.” The prosecutor offered an alternative definition: “To join as a partner, friend, or companion.... To join or connect together.” The trial court declined to give the prosecutor’s definition because it was too broad.
The trial court then instructed the jury: “The response to your question is as follows: the action of combining together for a common purpose. That’s the updated definition.” At the jury’s request, the trial court reopened closing argument so counsel could address this new instruction.
Mathis argues this new definition “was vague and broad enough to permit the jury to find the allegation true under almost any circumstances if it found the defendants were gang members themselves and were physically together during the shooting.” Asserting “[t]he Legislature enacted the anti-gang laws to target crimes committed in association with ‘any criminal street gang’ and not merely in association with a person who happens to be a gang member,” Mathis argues “ ‘in association with’ was not intended to, and does not apply simply to two gang members merely acting in concert. It must mean... that the crime was committed, ‘in association with the gang....’ ”
Mathis is complaining the “in association” definition diluted or even nullified the necessary connection between the current felony and the criminal street gang. But the initial instructions informed the jury: “The essential elements of this allegation are the crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang; and these crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (Italics added.) So even with the added definition, the jury was still required to find the shooting had been committed “in association with a criminal street gang,” not merely “in association with another gang member.” As Morales explains, the “in association with” prong of the benefit/direction/association element is met where the defendant has committed the predicate offense with another gang member and the evidence shows the crime was gang-related, rather than being a personal frolic. (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) The necessary connection between the crime and the gang is provided by the language and structure of the gang enhancement statute itself.
We conclude the trial court did not commit instructional error.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J. ALDRICH, J.