Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF054358 Richard A. Erwood and James S. Hawkins, Judges.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel and Donald Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REHEARING
King, J.
A jury convicted defendant of first degree burglary (count I—Pen. Code, § 459), petty theft with a prior (count II—§ 666), and receiving stolen property (count III—§ 496). After a bifurcated bench trial, the trial court found true gang enhancement allegations as to all three counts and an allegation that defendant had a prior strike conviction. On appeal, defendant makes four contentions: (1) the court erred in permitting defendant to be convicted of both the theft and receipt of the same property; (2) the court erred in finding the gang enhancement allegations true; (3) the court erred in imposing an unauthorized sentence on count I; and (4) the court erred in failing to advise defendant of his right to a jury trial on the gang enhancements and to take an appropriate waiver of that right. The People concede defendant’s first, third and fourth issues, but contend substantial evidence supported the trial court’s finding on the gang enhancement. We agree the court erred in permitting conviction on both counts II and III and, therefore, reverse the conviction on count III. Likewise, we agree the court imposed an unauthorized sentence on count I and direct the superior court to correct the sentencing minute order. Additionally, we agree the court failed to properly admonish and take defendant’s waiver of his right to a jury trial on the gang enhancements and, therefore, reverse those findings. Finally, we reverse the true findings on the gang enhancements because we find they were not supported by substantial evidence. In all other respects, the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
Melissa Hull called the Indio Police Department to report an apparent burglary after she and the individual with whom she lived, Edward Prater, witnessed defendant and his accomplice, Homero Valle, dragging a trash can and a duffel bag full of items from the fairway behind their home to the wall surrounding their community. Police responded quickly thereafter, apprehending Valle standing on a corner not far from where they discovered the trash can and bag full of personal property. Another officer apprehended defendant on a road immediately outside the gated community. Both at the scene and at trial, Prater identified Valle and defendant as those responsible. Officers discovered a residence nearby which had been broken into.
The owners of the residence testified that they recognized the objects found in the trash can and bag as their personal property. A fingerprint analyst matched a fingerprint on one of the purloined objects, a DVD player, to defendant. Neither the owners nor their renter gave defendant or Valle permission to enter the residence or take any personal property therefrom.
After the jury found defendant guilty on the substantive counts, the trial court conducted a bench trial on the gang enhancement allegations. Defendant’s brother, Cesar Mendoza, himself a former Penn West Gang member, testified that defendant was never affiliated with a gang, is not a gang member, does not have a gang moniker, and has not been seen throwing gang signs. Cesar Mendoza testified that defendant was unemployed and needed money to support his heroin habit. Defendant’s wife testified that defendant is not a gang member, does not have a gang moniker, does not have any gang tattoos, and she has never seen him throw gang signs.
Christopher Hamilton, the prosecution’s expert gang witness testified that Penn West is a gang operating primarily out of the southeast area of Indio since the late 1960’s. He testified that Penn West currently consists of approximately 50 members and was responsible for “numerous homicides, robberies, carjackings, burglaries, auto thefts, [and] vandalisms … in the past.” In particular, Hamilton testified as to two predicate crimes committed by Penn West gang members. The first concerned a carjacking for which Penn West gang member Cesar Rodriguez was convicted, in conjunction with a true finding on an attached gang enhancement allegation. The second involved a vehicle theft committed by convicted Penn West gang member Noel Acevedo. Hamilton concluded that Valle was a member of the Penn West gang from viewing pictures of Valle with other known gang members who were throwing gang signs; interviews he conducted with others regarding Valle; witnessing him associate with other Penn West gang members; and the use of Valle’s gang moniker, “Menace,” in gang graffiti. Valle also self-admitted membership in Penn West to two different officers on separate occasions.
Hamilton testified that defendant, while not a member of Penn West, was an associate of that gang. A gang associate “would be someone who just hangs around the gang. Maybe it’s a next-door neighbor. Maybe it’s a family member. Maybe it’s somebody they go to school with or work with. They are not—they may be around the group sometimes, the gang, but they are not engaged in that pattern of criminal activity.” He based this opinion on the facts that defendant had resided with at least four Penn West gang members in the past, all of whom he was related to, and that other officers had witnessed defendant associating with members of the Penn West gang. Hamilton testified that, normally, gang members do not commit crimes with nongang members; however, once a nongang member begins committing crimes with gang members, the nongang member is on his way to becoming a full-fledged member. Hamilton opined that, based on an identical hypothetical to the facts of the instant case, the burglary was gang related. The apparent gang-related purpose of the burglary would be to enhance Valle’s and defendant’s status within the gang, promote the gang to potential future members, enable the participants to live without working, enhance the gang’s reputation in the community, and to share the proceeds with other gang members. The burglary also served the purpose of allowing defendant to “put in work” to elevate himself from associate to full-fledged Penn West gang member.
On cross-examination, Hamilton noted that the pictures of Penn West gang members included only members who were in their teenage years or early 20’s. At the time of trial, defendant was 40 years old. However, Hamilton indicated that he had encountered Penn West gang members of defendant’s age in the past. Hamilton admitted that defendant’s motivation for the burglary could have been to support his heroin addiction. Hamilton noted that defendant had no gang moniker or gang tattoos. Likewise, defendant never appeared on any gang roster which he had seen. Finally, Hamilton admitted that there was no evidence that defendant wanted to join Penn West or gain a higher status in that gang by committing the instant crimes.
After finding the allegation true, the trial court recused itself from presiding over the bench trial of defendant’s prior strike allegation. Another trial judge found the prior strike allegation true. Thereafter, the court sentenced defendant to an aggregate term of 21 years’ incarceration, consisting of the midterm of eight years on count I, doubled pursuant to the strike prior; an additional five years for the gang enhancement; the midterm of four years concurrent, stayed on the additional counts; and the midterm of three years on the gang enhancements for counts II and III concurrent, stayed.
As correctly contended by defendant and conceded by the People, the actual midterm for burglary is four, not eight, years. (§§ 459, 460, 461.)
II. DISCUSSION
A. Defendant Was Erroneously Convicted of Both the Theft and Receipt of the Same Property
Defendant maintains that the court erred in permitting his conviction for the separate offenses of petty theft with a prior (§ 666) and receiving stolen property (§ 496) because both offenses concerned the same stolen property. The People concede the issue. We agree.
Section 496, which criminalizes the receipt of stolen property, provides that “no person may be convicted both pursuant to this section and of the theft of the same property.” (§ 496, subd. (a).) “[Section 496] codifies a common law rule prohibiting separate convictions of the same person for stealing and receiving the same property.” (People v. Garza (2005) 35 Cal.4th 866, 871; People v. Allen (1999) 21 Cal.4th 846, 857; People v. Recio (2007) 156 Cal.App.4th 719, 722 (Recio).)
The remedy for the erroneous conviction of both receipt and theft of the same property was the subject of a recent decision from this district which concluded that the receipt charge must always be reversed. (Recio, supra, 156 Cal.App.4th at p. 726.) In Recio, the court concluded that where a defendant is wrongly convicted of both theft of and receipt of the same stolen property, the charge of receiving stolen property must be reversed, regardless of whether the theft charge is the greater offense or results in a greater sentence. (Ibid.) As stated, “‘section 496 simply does not apply to the thief who stole the property in question’ [citation], . . . [¶] . . . [¶] . . .‘[I]t is the theft or theft-related offense which has the preclusive effect. Thus, if the defendant is found to be the thief he cannot be convicted of receiving the same property, and where he is so convicted it is the receiving conviction which is improper.’” (Id. at p. 723.)
As the People correctly note, the California Supreme Court recently granted review in People v. Ceja (2007) 155 Cal.App.4th 1246, another case from this district which came to a contrary conclusion to that of Recio, determining that whichever charge was the lesser offense should be reversed. Since that case is no longer published law, we place no reliance upon it.
Here, there is no doubt that defendant’s convictions for theft and receipt concerned the same property. The evidence adduced below showed defendant participated in the theft and receipt solely of property taken from the burglarized residence. No evidence demonstrated that defendant received any stolen property separate and apart from that taken from the subject home. Moreover, both parties agree that the convictions concerned the same stolen property. Both parties agree that the conviction for receipt of stolen property should be reversed. We agree and, therefore, reverse defendant’s conviction on count III for receiving stolen property. (§ 496.)
B. Imposition of Sentence on Count I Must be Corrected to Reflect the Midterm of Four Years, Not Eight
On review, appellate courts may correct a legally unauthorized sentence. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3.) A legally unauthorized sentence is one which “could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 335.) The sentence triad for a conviction of first degree burglary is two, four, or six years. (§ 461.)
Here, the court expressly indicated, twice, its intention of imposing the midterm on count I. Nonetheless, the court misstated the midterm for count I as eight, rather than four years. This mistake is repeated in the sentencing minute order and abstract of judgment. This was clearly error on the part of the trial court because the midterm for first degree burglary is four, not eight years. The People concede the error. Therefore, we direct the trial court to correct the sentencing minute order of April 6, 2007, and the abstract of judgment to reflect imposition of the midterm of four, rather than eight, years on count I, doubled pursuant to the strike prior.
C. Gang Enhancements
1. The Record is Devoid of a Proper Advisement to Defendant of His Right to Jury Trial or His Express Waiver of That Right
The right to a jury trial extends to a section 186.22, subdivision (b) gang enhancement allegation. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324-327 (Sengpadychith).) “A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel.” (Cal. Const., art. 1, § 16.) While a defendant’s counsel may waive certain rights on behalf of his or her client, those rights deemed fundamental, including the right to a jury trial, may not be waived by defendant’s counsel alone. (People v. Riel (2000) 22 Cal.4th 1153, 1196; In re Horton (1991) 54 Cal.3d 82, 95.) Rather, in waiving the right to a jury trial, “the criminal defendant must be admonished and the court must secure an express waiver[.]” (In re Horton, supra, at p. 95.) An express waiver of the right to a jury trial cannot be inferred from the acts of defendant or defendant’s counsel. (People v. Di Blasi (1961) 198 Cal.App.2d 215, 221-223; People v. Ernst (1994) 8 Cal.4th 441, 448.) A personal and express waiver is “the only method by which the constitutional right to jury trial may be waived in a criminal case.” (People v. Vera (1997) 15 Cal.4th 269, 278.) A denial of a constitutional right to a jury trial is structural error requiring reversal. (People v. Collins (2001) 26 Cal.4th 297, 311.)
Here, defense counsel initially moved to bifurcate determination of the gang enhancement allegations from the substantive offenses, but made no mention of whether he or defendant intended that proceeding to occur by court or jury trial. The court reserved ruling on the motion to permit the prosecution to submit additional authorities on the bifurcation issue. The next day, the court took an express waiver of defendant’s right to a jury trial on the issue of his prior strike conviction; however, it neither admonished defendant nor took an express waiver of defendant’s right to a jury trial on the gang enhancement allegations when it granted defendant’s motion for bifurcation. Indeed, the court acknowledged that the issue of whether to proceed on the gang enhancement allegations by court or jury trial remained to be determined by the parties. While defense counsel indicated he wished to have the issue bifurcated and determined by “court trial,” counsel’s statement cannot be accorded a valid waiver of defendant’s fundamental right to a jury trial. (People v. Di Blasi, supra, 198 Cal.App.2d at pp. 221-223; People v. Ernst, supra, 8 Cal.4th at p. 448.) Prior to final arguments and submission of the case to the jury, the prosecutor announced that he would determine whether to proceed on the gang enhancement allegations by court or jury trial only after the jury returned its verdicts on the substantive offenses. After the jury returned guilty verdicts, the court and parties held proceedings in chambers, off the record. The court subsequently dismissed the jury and stated: “We still have the issue of the gang allegations . . . for [defendant]. [¶] [Defendant’s counsel has] indicated that—I had indicated to counsel that we would proceed with the trial on the gang allegations first, and [the prosecutor] waived the right to have the jury hear that on behalf of the People. And both defendants have waived the right to have that matter put forth before the jury.” Defendant’s counsel replied, “Right.” The People concede that the true findings on the gang enhancement allegations must be reversed because the record fails to demonstrate that defendant personally and expressly waived his right to a jury trial. We agree.
In our original opinion issued on February 25, 2008, we directed the trial court to strike the gang enhancements and modify defendant’s sentence accordingly. The People filed a petition for rehearing, in which it contends that prior to remanding for further proceedings, we are required to address defendant’s claim that substantial evidence failed to support the court’s true finding on the gang enhancements. We granted rehearing and gave defendant an opportunity to respond. We now address defendant’s various arguments as to why substantial evidence failed to support the court’s true finding.
2. Substantial Evidence Fails to Support the Court’s Findings on the Gang Enhancments
(a) Criminal Street Gang
Defendant contends that substantial evidence does not support the court’s implied finding that Penn West was a criminal street gang for purposes of finding the gang enhancement allegation true.
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the [trier of fact’s] duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the [trier of fact], not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“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. [Citation.]”’” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Section 186.22 provides, in pertinent part, that “‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated . . ., having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) “‘Therefore, the “criminal street gang” component of a gang enhancement requires proof of three essential elements: (1) that there be an “ongoing” association involving three or more participants, having a “common name or common identifying sign or symbol”; (2) that the group has as one of its “primary activities” the commission of one or more specified crimes; and (3) the group’s members either separately or as a group “have engaged in a pattern of criminal gang activity.” [Citation.]’ (People v. Vy (2004) 122 Cal.App.4th 1209, 1222 [19 Cal.Rptr.3d 402].)” (In re Alexander L. (2007) 149 Cal.App.4th 605, 610-611 (Alexander L.).)
Defendant does not attack the first prong; however, he maintains that substantial evidence does not support the court’s implied conclusions that Penn West has as one of its primary activities the commission of one or more of the statutorily specified crimes or that it has engaged in a pattern of criminal gang activity. We find that substantial evidence supports the court’s implied conclusion that Penn West is a criminal street gang for purposes of the gang enhancement.
(i) Primary Activities
“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. . . . ‘Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. . . .’” (Sengpadychith, supra, 26 Cal.4th at pp. 323-324.)
“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.” (Sengpadychith, supra, 26 Cal.4th at p. 324.) The testimony of a gang expert alone may be sufficient to support a true finding on a gang enhancement, but only where that testimony is supported by an adequate foundation. (Alexander L., supra, 149 Cal.App.4th at pp. 611-614.)
Defendant maintains that the testimony of the People’s gang expert failed to lay an appropriate foundation for concluding that one of Penn West’s primary activities was one or more of the statutorily enumerated crimes. Indeed, he notes that the expert failed even to state that Penn West had as one of its primary activities the commission of such crimes. Moreover, he asserts the expert failed to state the basis for any testimony elicited regarding Penn West’s commission of those crimes. We find substantial evidence was adduced below to conclude that Penn West had as one of its primary activities the commission of one or more of the statutorily enumerated crimes.
In Sengpadychith, the court concluded that the primary activities prong may be met by expert testimony. The court specifically approved the use of expert testimony based upon personal experience: “Also sufficient might be expert testimony, as occurred in [People v.] Gardeley [(1996)] 14 Cal.4th 605 [Gardeley]. There, a police gang expert testified that the gang of which [the defendant] had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with [the defendant] and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement agencies. [Citation.]” (Sengpadychith, supra, 26 Cal.4th at p. 324.)
In Alexander L., the court looked at a number of authorities on the “criminal gang” prong of the gang enhancement statute, distilling therefrom the principle that an adequate foundation for establishing that a gang’s primary activities concerned criminal conduct required something more than the mere testimony by a police officer of nonspecific hearsay evidence. (Alexander L., supra, 149 Cal.App.4th at pp. 611-614.) It noted that in Gardeley, where the testimony was found sufficient, the officer testified that he had personal knowledge of the gang’s activities via his own investigations and discussions with the defendants and other gang members. (Alexander L., supra, at p. 613.) It concluded that the evidence in its own case, consisting solely of a gang expert’s testimony derived from unspecific hearsay sources that he knew of the group’s participation in a number of crimes, was “closer to the conclusory, insufficient evidence presented in In re Nathaniel C., supra, 228 Cal.App.3d 990 and In re Leland D., supra, 223 Cal.App.3d 251, than it [was] to the acceptable evidence offered in Gardeley, supra, 14 Cal.4th 605.” (Id. at p. 614.) It therefore reversed the gang enhancement. (Id. at p. 615.)
Gardeley, supra, 14 Cal.4th 605; In re Nathaniel C. (1991) 228 Cal.App.3d 990; In re Leland D. (1990) 223 Cal.App.3d 251.
The facts in the instant case are more akin to those found sufficient in Gardeley than those found insufficient in Alexander L. Here, Hamilton testified that he had vast, personal experience with the Penn West gang: “I became familiar with it from my beginnings as a police officer in the [C]ity of Indio. In the field training program, I handled numerous types of calls for service and crimes in that neighborhood. I have arrested members of the gang. I have spoken with members of the gang. I have spoken with their family members. I have spoken with their friends.” Moreover, Hamilton testified regarding specific instances of criminal behavior by members of Penn West with which he was personally involved: “As part of my duties at the Gang Task Force, I review all of the gang-related reports and many past gang-related reports, so I can look for that pattern of criminal activity, the predicate acts. I’m responsible for maintaining predicate act books at the Gang Task Force for the Indio gangs. I’m also familiar with Cesar Rodriguez [a Penn West gang member] and the crimes he committed [including carjacking] during the time I have been a police officer at the [C]ity of Indio”; “I have spoken with [Rodriguez] in the past. I have investigated cases where he’s been involved in. I have completed gang enhancement reports related to him”; “I have met [Valle] in person, detained him related to a homicide investigation that occurred in front of his house. I have seen his moniker in gang graffiti. . . . I have spoken with other citizens, gang members, about Homero Valle”; “I’ve been present while [Valle] was being questioned”; “I’ve been by [Valle’s residence] numerous times and seen Penn West gang members associating in front of the house. I was just by there within the last two months, and I saw a subject, . . . who is another documented, self-admitted to me, member of the Penn West gang, in the front yard of the house, with Homero Valle.” Thus, Hamilton’s unstated, but contextually obvious opinion that one of Penn West’s primary activities was the commission of the statutorily enumerated offenses was based, at least partially, on his substantial, personal experience with that gang.
Moreover, to the extent that Hamilton’s opinion was based in part on hearsay evidence, that evidence was specific enough to warrant its reliability. Hamilton testified that, “The Indio Police Department has investigated numerous homicides, robberies, carjackings, burglaries, auto thefts, [and] vandalisms, that have been committed by members of the Penn West gang in the past.” He testified that Valle had been present “when gang crimes have been committed.” He testified as to seeing pictures in which Penn West gang members were “holding guns[.]” As discussed above, some of these crimes Hamilton had personally investigated. As to the others, Hamilton relied upon gang identification cards, photographs, discussions with other citizens, and discussions with other officers, all of which are sources reasonably relied upon by gang experts.
This case is factually distinguishable from In re Nathaniel C. where the court found that the expert witness’s discussion with another officer from a different police department insufficient foundation for his testimony regarding the gang’s commission of the predicate crimes. (In re Nathaniel C., supra, 228 Cal.App.3d at p. 1003.) Here, Hamilton based his testimony only in part upon the statements of two identified members of his own police department. Moreover, Hamilton’s testimony found further support in his review of “all of the gang-related reports and many past gang-related reports” in his own department’s records. Finally, Hamilton testified on the basis of certified court records as to two predicate offenses committed by Penn West gang members. The first concerned a conviction for carjacking by Penn West gang member Cesar Rodriguez for which a gang enhancement allegation was found true. The second involved a vehicle theft committed by convicted gang member Noel Acevedo. Thus, while Hamilton did not explicitly state that one of Penn West’s primary activities was the commission of the statutorily enumerated offenses, this conclusion is reasonably inferable from his testimony. Indeed, there was no testimony regarding Penn West having any other purpose whatsoever. Finally, Hamilton’s personal experiences and resort to reliable additional sources of information formed an adequate basis for making this determination; therefore, substantial evidence supported a determination that Penn West had as one of its primary activities the commission of the requisite offenses.
(ii) Pattern of Criminal Activity
“In addition to proving the gang’s primary activities consisted of the enumerated criminal acts, the prosecution must also demonstrate a pattern of criminal activity. ‘[A] gang otherwise meeting the statutory definition of a “criminal street gang” . . . is considered a criminal street gang under the [Street Terrorism Enforcement and Prevention Act (STEP Act)] only if its members “individually or collectively engage in or have engaged in a pattern of criminal gang activity” [citation] by “the commission, attempted commission, or solicitation of two or more” . . . of the statutorily enumerated offenses within the specified time frame [citation].’ ([Gardeley, supra, ] 14 Cal.4th [at p.] 621 . . . .)” (Alexander L., supra, 149 Cal.App.4th at p. 611.) The statutory time frame requires that “at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).) The effective date of the STEP Act, within which section 186.22 resides, was September 26, 1988. (Gardeley, supra, 14 Cal.4th at p. 626.)
In his opening brief, defendant argues that the People failed to prove that Penn West was a “criminal street gang” by virtue solely of its failure to adduce sufficient evidence on the “primary activities” prong. Only in his penultimate sentence on the issue does defendant suggest the People likewise failed to produce substantial evidence that Penn West engaged in a “pattern of criminal activity; however, this allegation is not supported by argument or citation to authority. Only in his reply brief does defendant specifically allege that the People’s failure to present evidence on the dates of the occurrences of the predicate offenses amounted to a failure to adduce substantial evidence on the “pattern of criminal activity” prong. (People v. Mitchell (1995) 36 Cal.App.4th 672, 674, fn. 1 [appellate courts will typically not address contentions raised for the first time in a party’s reply brief].)
To the extent that defendant has not forfeited the issue by failing to raise it in his opening brief, we believe the People did adduce sufficient evidence that the predicate offenses were committed within the statutorily required time frame. Hamilton twice testified that the carjacking offense committed by Cesar Rodriguez qualified as a predicate act under the STEP Act. This would necessarily involve a determination that the carjacking occurred within the statutorily defined time frame. Likewise, Hamilton testified that the vehicle theft committed by Noel Acevedo qualified as a predicate act under the STEP Act and that it specifically was “within the time frame to qualify as a predicate act.” Finally, the People moved into evidence exhibits 134 and 135, which consisted of certified case prints of those convictions. These documents show the dates of Rodriguez’s and Acevedo’s arrests as January 31, 2004, and May 7, 2004, respectively, as well as the dates the complaints against them were filed as February 6, 2004, and May 11, 2004, respectively. Thus, the certified case prints, combined with Hamilton’s testimony, show that both crimes were committed after the effective date of the STEP Act and that the latter offense was committed within three years of the former. Thus, substantial evidence supports that the predicate offenses were conducted within the statutorily required period.
(b) For the Benefit of, at the Direction of, or in Association With Any Criminal Street Gang
While nongang members may have their sentences enhanced on the basis of a true finding on a gang enhancement (People v. Villalobos (2006) 145 Cal.App.4th 310, 315, 321-322), a gang expert’s testimony alone is insufficient to find an offense gang related (People v. Ferraez (2003) 112 Cal.App.4th 925, 931 (Ferraez)). “[T]he record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.” (People v. Martinez (2004) 116 Cal.App.4th 753, 762.)
In People v. Martinez, supra, 116 Cal.App.4th 753, the trial court imposed a gang registration requirement pursuant to section 186.30 when the defendant pled guilty to committing an automobile burglary and subsequently violated his probation by associating with a known gang member. (Id. at pp. 757-758.) The appellate court resolved that imposition of a gang registration requirement is proper only where the underlying crime is proven to have been gang related, i.e., where the evidence supports a determination that it was committed, as defined in section 186.22, for the benefit of, at the direction of, or in association with any street gang. (People v. Martinez, supra, at pp. 760-762.) That court reversed the gang registration requirement, noting that “[a]uto burglary is a crime, but not one necessarily gang related, and the circumstances of the offense as described in the record before us fail to connect the offense with defendant’s gang activities.” (Id. at p. 762.) Even if the burglary was committed with an acknowledged gang member, the record must demonstrate that the offense was directed by, associated with, or benefited his criminal street gang. (Ibid.) The court concluded that a defendant’s personal affiliations and criminal record are relevant in determining whether a particular offense was gang related; however, in order to substantiate that a crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, some evidentiary support beyond defendant’s past record and associations must be adduced. (Ibid.) “The crime itself must have some connection with the activities of the gang[.]” (Id. at p. 761.)
In People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), the trial court denied a defense pretrial motion to exclude evidence of defendant’s gang affiliation and other gang evidence in defendant’s trial for attempted murder, shooting at an inhabited dwelling, and kidnapping for carjacking, all of which were alleged to have been committed for the benefit of a criminal street gang. (Id. at p. 217.) After the jury found the gang enhancement true, the trial court granted a motion for new trial as to the gang enhancement, finding sufficient evidence did not support the true finding. (Ibid.) However, the court denied the motion as to defendant’s request for a new trial on the substantive charges, in which the defendant alleged he had been prejudiced by the admission of the gang evidence. (Ibid.) The court noted that the gang evidence was relevant to the issues of the defendant’s motive and intent in committing the underlying crimes. (Ibid.)
The appellate court reversed the judgment and remanded the matter for a new trial on the substantive offenses, concluding that the People had failed to present sufficient evidence that the crimes were gang motivated. (Albarran, supra, 149 Cal.App.4th at pp. 217, 232.) At trial, “[t]he prosecutor argued the case presented a ‘classic’ gang shooting and that the entire purpose of the shooting was to gain respect and enhance the shooters’ reputations within the gang community, and to intimidate the neighborhood—essentially to ‘earn one’s bones’ within the gang. The prosecutor noted, however, that he had no percipient witness or evidence to prove the crime was gang related or motivated, but instead would be relying on testimony of the sheriff’s gang expert . . . who was most familiar with [the defendant] and his gang . . . .” (Id. at p. 219.)
The People’s gang expert testified as to his numerous contacts with defendant, defendant’s admission to gang membership, defendant’s gang tattoos, and gang graffiti at defendant’s home. (Albarran, supra, 149 Cal.App.4th at p. 220.) The expert conceded that there was no direct evidence of defendant’s specific purpose in committing the offenses or that they were at all related to defendant’s gang: “[T]here was no evidence in this case that any of the shooters had made themselves known—the shooters made no announcements, did not throw any gang signs and there was no graffiti referring to the crime.” (Id. at p. 221.) Nonetheless, the expert opined that the crimes were gang related because they were committed within the gang’s territory, they occurred at a party when gang crimes are often committed, and more than one shooter was involved. (Id. at pp. 220-221.) In the expert’s opinion, the crimes would benefit the gang because the gang members would gain respect within the gang by word of mouth regarding the crimes and the offense would serve to intimidate people. (Ibid.)
The court concluded that despite evidence that defendant was a gang member, the motive for the underlying crimes “was not apparent from the circumstances of the crime.” (Albarran, supra, 149 Cal.App.4th at p. 227.) The expert’s contention that gang members gain respect and enhance their status within their gang by committing crimes did not support the conclusion that the defendant’s offenses were gang related because there was no evidence that any of the gang members presented signs of gang membership or announced their presence, before or after, the offense. (Ibid.) Likewise, there was no evidence of gang members bragging about their involvement in the crimes or creating graffiti to take credit for them. (Ibid.) Thus, the fact of a defendant’s gang membership alone could not sustain the inference that a crime committed by that defendant was gang related, despite an expert witness’s testimony to the contrary. (Ibid.)
In Ferraez, supra, 112 Cal.App.4th 925, the defendant was arrested at a swap meet for possession of rock cocaine for sale. (Id. at p. 928.) The defendant told the arresting officer that he had acquired permission to sell drugs from the gang who claimed the swap meet as its territory. (Ibid.) Defendant admitted to being a gang member, had made previous such admissions, had a gang moniker, had a gang tattoo, had received five STEP Act notices, and had been on probation with gang terms. (Id. at pp. 928-929.) However, the defendant asserted that he was not selling the drugs for the gang, but was doing so for personal, economic reasons. (Ibid.) The prosecution’s gang expert opined that, based on a hypothetical identical to the facts of the case, the defendant intended to sell the drugs for the benefit of, or in association with, the gang. (Id. at p. 928.) He testified that the proceeds “would be used to benefit the gang through the purchase of weapons or narcotics, or as bail for a fellow gang member. He also testified that the sale of drugs promotes, furthers, and assists criminal conduct by the gang.” (Ibid.)
The appellate court upheld the jury’s finding that the crime was committed to benefit or assist a criminal street gang. (Ferraez, supra, 112 Cal.App.4th at pp. 927-928.) However, the court noted that “[u]ndoubtedly, the expert’s testimony alone would not have been sufficient to find the drug offense was gang related. But here it was coupled with other evidence from which the jury could reasonably infer the crime was gang related.” (Id. at p. 931.) This “other evidence” included the facts that defendant was selling the drugs in gang territory, had gained the gang’s permission to sell the drugs, and his admissions regarding gang membership and associations. (Ibid.) Thus, it suggested that expert testimony alone, without an underlying evidentiary foundation for that testimony, would be insufficient to justify a true finding on a gang enhancement.
In In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), an officer detained the minor when he failed to stop at a red traffic light while riding his bicycle. (Id. at p. 1195.) The officer discovered a knife, a bindle of methamphetamine, and a red bandana on the minor. (Ibid.) The People charged minor with carrying a concealed dirk with a corresponding gang enhancement, as well as other charges. (Ibid.) The prosecution’s gang expert testified that the minor was a gang member and that the substantive charge was committed to benefit his gang. (Ibid.) She testified that “a gang member would use the knife for protection from rival gang members and to assault rival gangs.” (Ibid.)
The appellate court reversed the enhancement finding that “nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife.” (Frank S., supra, 141 Cal.App.4th at p. 1199.) “[U]nlike in other cases, the prosecution presented no evidence other than the expert’s opinion regarding gangs in general and the expert’s improper opinion on the ultimate issue to establish that possession of the weapon was ‘committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .’ [Citation.] The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. In fact, the only other evidence was the minor’s statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (Ibid.) Thus, again, something more than an expert witness’s unsubstantiated opinion that a crime was committed for the benefit of, at the direction of, or in association with any criminal street gang is required to justify a true finding on a gang enhancement.
Here, burglary is a crime, but not necessarily one that is gang related. Like in People v. Martinez, supra, 116 Cal.App.4th 753and Albarran, supra, 149 Cal.App.4th 214, nothing in the circumstances of the instant offenses sustain the expert witness’s inference that the offenses were gang related. Neither defendant nor Valle called out gang names, displayed gang signs, wore gang clothing, or engaged in gang graffiti while committing the instant offenses. There was no evidence of bragging or graffiti to take credit for the crimes. The crimes were not committed in Penn West gang territory nor the territory of any of its rivals. The victims of the crimes were not Penn West rivals.
While defendant committed the instant crimes with someone he was most assuredly aware was a gang member, this does not support the conclusion that the offenses were necessarily committed to benefit Valle’s gang. Indeed, Hamilton admitted that defendant’s motive in committing the burglary could have been to support his heroin addiction. This was further supported by Cesar Mendoza’s testimony that defendant had a heroin habit, was unemployed, and needed money to support his addiction. While courts have found that crimes committed in association with fellow gang members can permit the inference that the crime was committed with the requisite association, here defendant was not a gang member; thus, the underlying crimes were not committed in association with a fellow gang member. (People v. Morales (2003) 112 Cal.App.4th 1176, 1196; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332.) Unlike the defendants in Albarran, Ferraez, and Frank S., the evidence here showed that defendant was not a gang member. Hamilton testified that defendant was not a gang member, had no gang tattoos, did not have a gang moniker, and had not appeared on any gang roster he had ever seen. This was, likewise, supported by defendant’s brother and wife, who also testified as such. All the Penn West gang members identified by Hamilton were of a completely different generation than defendant. While Hamilton speculated that defendant could have committed the instant crimes to earn his membership in the gang, he also admitted there was no evidence of this. Furthermore, Hamilton’s suppositions were based only on evidence of defendant’s record of personal affiliations, not evidence that his current crimes were committed “for the benefit of, at the direction of, or in association with a criminal street gang.” (§ 186. 22; People v. Martinez, supra, 116 Cal.App.4th at p. 762.)
Hamilton’s testimony that defendant’s commission of the burglary could conceivably (“would”) benefit Penn West in some way “‘did nothing more than inform the [trier of fact] how [the expert] believed the case should be decided,’” without any underlying factual basis to support it. (Frank S., supra, 141 Cal.App.4th at p. 1197, quoting People v. Killebrew (2002) 103 Cal.App.4th 644, 658.) Defendant did not tell the arresting officer, as did the defendant in Ferraez, that he had special gang permission to commit the burglary. (Ferraez, supra, 112 Cal.App.4th at p. 928.) The gang enhancement cannot be sustained based solely on defendant’s status as an “associate” of the gang, even where he committed a crime in association with a Penn West gang member. Had the Legislature wished further to penalize such conduct, it could have required only that a defendant commit the crime for the benefit of, at the direction of, or in association with any criminal street gang member. This it did not do despite the fact that it used precisely such language in the second prong requiring the crime be committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1).)
In sum, substantial evidence did not establish that defendant committed the burglary for any purpose other than personal economic gain. The record cannot be interpreted to support the conclusion that the instant crime was committed for the benefit of Penn West within the meaning of section 186.22.
Because we find that substantial evidence did not support the trial court’s determination that defendant committed the underlying offenses for the benefit of, at the direction of, or in association with any criminal street gang, we do not address defendant’s contention that substantial evidence did not support a determination that the substantive crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. For the same reason, we do not address defendant’s contention that Hamilton’s testimony constituted improper profile evidence.
III. DISPOSITION
The judgment is affirmed in part and reversed in part. The judgment of conviction on count III for receiving stolen property is reversed. The section 186.22, subdivision (b)(1)(A) gang enhancements are reversed. The trial court is directed to correct the sentencing minute order of April 6, 2007, and the abstract of judgment to reflect imposition of the midterm of four, rather than eight, years on count I, doubled pursuant to the strike prior. The trial court is directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ramirez P.J., Gaut J.