People v. Pierce

Full title: THE PEOPLE, Plaintiff and Respondent, v. SEAVON PIERCE et al., Defendants…

Court: California Court of Appeals, Fourth District, First Division

Date published: Nov 6, 2007

No. D050392 (Cal. Ct. App. Nov. 6, 2007)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. SEAVON PIERCE et al., Defendants and Appellants. D050392 California Court of Appeal, Fourth District, First Division November 6, 2007

NOT TO BE PUBLISHED

APPEAL from judgments of the Superior Court of Riverside County, Super. Ct. No. SWF002212, Harold W. Hopp, Judge.

HALLER, Acting P. J.

Seavon Pierce and Dante Lewis appeal from judgments convicting them of five counts of robbery with gang enhancements. Pierce argues the trial court erred in granting his self-representation motion without holding a competency hearing and without granting him a continuance. Regarding the gang enhancement, Pierce and Lewis argue (1) the trial court erred by refusing to bifurcate the trial of the gang enhancement from the trial of the robbery offenses, (2) the trial court erred by admitting expert opinion testimony that the robbery was for the benefit of and in association with the gang, (3) there is insufficient evidence to support the gang enhancement, and (4) the trial court erroneously answered a jury question regarding the gang enhancement. They also argue (1) the evidence is insufficient to support vicarious gun use enhancements for three of the counts, (2) the trial court erroneously instructed the jury regarding constructive possession by employees, and (3) there was insufficient evidence of constructive possession by two of the victims.

As to sentencing, Pierce asserts the trial court's imposition of an upper term violated his jury trial rights under the Apprendi rule. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) Additionally, Pierce contends the trial court abused its discretion in imposing an upper term.

We find no reversible error and affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Overview

At about noon on November 15, 2002, the Guaranty Bank in Temecula was robbed. Based on this incident, Pierce, codefendant Lewis, and codefendant Pamela Edwards (Pierce's girlfriend) were charged with five counts of robbery and with conspiracy to rob. A third man also participated in the robbery ("the third robber"), but he was not apprehended. Pierce and Lewis were members of the Rolling 60's Crips (RSC) gang, a South Los Angeles gang. The prosecution alleged that the robbery was committed for the benefit of or in association with this gang. (Pen. Code,¹ § 186.22, subd. (b)(1).) The prosecution's theory of the case was that Lewis and the third robber committed the robbery inside the bank, and that Pierce and Edwards conspired with them to commit the robbery and served as get-away drivers. Lewis was charged with personal gun use enhancements (§ 12022.53, subd. (b)), and both Lewis and Pierce were charged with vicarious gun use enhancements based on the personal use of a gun by a principal in a crime involving a gang enhancement (§ 12022.53, subd. (e)(1)).

1 Subsequent statutory references are to the Penal Code unless otherwise specified.

Lewis testified on his own behalf and admitted his participation in the robbery, but claimed that he did not use a gun, he was no longer an active gang member, and the robbery did not involve the gang. Edwards also testified on her own behalf. Edwards, who was not a gang member, claimed that she was an unwitting participant who was used by her then boyfriend Pierce to assist with the escape. Pierce's position was that the evidence did not show he was involved with the robbery.

The jury acquitted Edwards of all charges. The jury found Pierce and Lewis guilty of the five counts of robbery and found the gang enhancements true. The conspiracy charges were dismissed after the jury found none of the alleged overt acts occurred. The jury found that Lewis did not personally use a firearm, but found both Lewis and Pierce liable for the vicarious gun use enhancements for a gang-related crime.

Facts

Three vehicles were involved in the robbery, a stolen Honda, Pierce's Mercedes, and Edwards's Dodge. The stolen Honda was used at the scene of the robbery and then abandoned during the escape. The Mercedes and Dodge were used to effectuate the escape after the robbery. Lewis and the third robber drove to the bank in the stolen Honda and committed the robbery, while Pierce and Edwards waited in the Mercedes and Dodge (respectively) until the return of the Honda.

Events Before the Robbery

Edwards provided a description of the events leading to the robbery. Edwards (age 20) had met Pierce on the Internet and had been dating him for several months. Pierce lived in Los Angeles and Edwards lived in Murrieta. The morning of the robbery, Pierce called Edwards at her home in Murrieta. Edwards was surprised and happy to hear from him because in the last month he had been avoiding her. He told her he was in Temecula and to meet him at a shopping center so they could go out to breakfast.

Pierce drove her Dodge to the parking lot of the shopping center and saw Pierce in a Mercedes with two other men. Talking with Pierce on her cell phone, Edwards asked why he had two people with him. Pierce told her they were his friends who had come with him from Los Angeles. He told her to follow him in her car, assuring her they would still go to breakfast.

When they arrived at another parking lot, Pierce, still communicating by cell phone, told Edwards that he did not have enough money for breakfast. He asked her to go into the nearby Guaranty Bank and cash a check. Edwards wrote a check for $15.00 and went into the bank to cash the check. The bank declined to cash her check because she did not have an account there.²

2 The alleged overt acts for the conspiracy (found untrue by the jury) consisted of Edwards's conduct of going to and entering the bank.

When Edwards returned to her car, she could not see Pierce in the area. She entered her vehicle and Pierce called on her cell phone. He asked her questions about the inside of the bank, such as how many tellers there were, if there were any bars or stairs in the bank, and if there was a vault. Edwards told Pierce she did not know. As she was driving to leave the parking lot, she saw Pierce in the Mercedes with the two other people. Pierce told her to follow him, which she did. They drove around for a while and eventually arrived at an apartment complex, where Pierce's two passengers exited the Mercedes and got into a Honda. As they continued driving around, Edwards asked Pierce via cell phone what they were doing and why his friends (following in the Honda) were still with them. Pierce told her not to ask questions but just to follow him. Edwards followed Pierce to a street where the three vehicles parked. Pierce left in his vehicle for about a minute. While he was gone, the Honda drove up next to Edwards's vehicle and the men told her not to leave. Then Pierce returned, the Honda left, and Pierce told Edwards she could leave if she wanted to. Edwards was irritated and confused, but Pierce would not explain to her what was going on.

The Robbery

While Pierce and Edwards were at their parked cars, the two men in the Honda went to the Guaranty Bank and committed the robbery. There were five bank employees present during the robbery. Sharon Scharf, Donna Harris, Jennie Carrillo, and Maria Johnson were working as tellers. Lynne Steele was working as the bank manager. The employees testified that the two robbers were African-American males. They were wearing ski masks, but the color of their skin was visible through the holes in the masks and on the legs of one of the robbers who was wearing shorts. The men entered the bank carrying guns and screaming that this was a robbery.

One robber (the "counter jumper robber") jumped over the teller counter and robbed Carrillo and Johnson at their teller stations, while Steele was standing nearby. The other robber (the "vault robber") demanded that the employees open a partial-height door leading from the customer area into the teller area. Steele opened the door for the vault robber. The vault robber entered the bank's vault room and robbed Scharf and Harris.

Harris was in the vault room counting $14,000 cash that she and Scharf had retrieved from the vault for Harris's drawer. The vault robber pointed a gun at Harris's head and told her to open the vault and give him $20 bills. Harris responded that she did not have the keys. Scharf, who did have the keys, was standing "frozen" in the vault room doorway. Harris pointed to the cash she had just counted and the robber grabbed this money and placed it in a backpack. As he walked out of the vault room, the robber pointed his gun at Scharf, holding it sideways within inches of her face.

Meanwhile, the counter-jumper robber was robbing the teller drawers. The counter-jumper robber demanded that Steele open the drawers, but Steele told him she did not have the keys. Johnson and Carrillo, who were at their teller stations, opened their cash drawers. The robber took money from their drawers and placed it in a canvas bag. There were dye packs in the money taken from Johnson's and Carrillo's drawers.

Carrillo testified that the counter-jumper robber pointed a gun at her head and told her: "You can push any buttons that you want, because I'm not afraid to use this gun." Steele could not remember at trial if the counter-jumper robber had a gun, although she recalled a robber stating, "This is no joke. You can hit the button if you want to, I'll shoot you."³ The bank's security camera captured portions of the robbery on tape, and the videotape was played for the jury. The videotape depicted one robber wearing pants and the other robber wearing shorts. The bank's fraud prevention officer testified that when he reviewed the videotape, he was not able to see a gun in the hand of the robber wearing shorts, but a gun was observable in the hand of the robber wearing pants. Lewis testified he was wearing shorts during the robbery; he was the robber who jumped over the counter; and the other robber had a gun but he (Lewis) did not have a gun. When Lewis was arrested he was found with shorts with red dye on them.

3 Johnson, who was also robbed by the counter-jumper robber, did not testify due to medical reasons.

For the first time at trial, Lewis disclosed that the other robber was a man named James "Mario" Dunn. Lewis claimed that Mario was not a member of the RSC gang and that the robbery was not committed for the gang.

After taking money from the vault room and teller drawers, the robbers left the bank.

The Escape

Edwards described events occurring during the escape from the robbery. As Edwards was starting her car to leave the area where she was parked with Pierce, the Honda came speeding around the corner. The two men jumped out of the Honda. One of the men (later identified as Lewis) got into Pierce's Mercedes and the other man (the third robber) got into Edwards's Dodge. The third robber screamed at Edwards: "Drive, bitch." Edwards, terrified and crying, followed Pierce's car. Edwards described the third robber as African-American, bald, with a lot of tattoos. The third robber was taking off clothes and throwing them out the window.

Edwards's description of the events concerning the three vehicles was corroborated by the observations of Clair and Michael Mack, a couple who lived on the street where the vehicles were parked. The morning of November 15, 2002, Mrs. Mack saw a Honda, a Mercedes, and a Dodge arrive together and park on her street. There were three men and one woman in the vehicles, all African-American. The Honda, with two men in it, left the street for a while. The Honda then returned, and all three vehicles left. Feeling suspicious, the Macks recorded the license plate numbers and make of the Mercedes and Dodge and Mrs. Mack reported the information to the police.

The police received the information from the Macks and the robbery report at about the same time. Responding to the calls, the police spotted the Mercedes followed by the Dodge. A police vehicle pulled in between the Mercedes and the Dodge. When Pierce made a turn onto another street, the police vehicle followed him, while Edwards continued driving in the same direction. Pierce responded to the police vehicle's activation of its lights by speeding away, and a vehicular pursuit ensued during which Pierce drove recklessly towards oncoming traffic and ran a red light. When Pierce turned into a shopping center parking lot at a high rate of speed, the Mercedes had a flat tire and was leaking fluid from hitting a curb. Pierce continued to drive recklessly, placing pedestrians in the crowded parking lot at risk for their lives. The Mercedes eventually stopped for a moment, and Lewis exited the car and fled on foot. The police chased Lewis and eventually found him in some bushes.

Pierce stayed in the Mercedes and continued to drive away until the police lost sight of him. Shortly thereafter, the police found his Mercedes abandoned by a drainage ditch. The police found $3,110 cash in the Mercedes, most of it stained with red dye. The police found the Honda abandoned in a neighborhood near the Guaranty Bank.

Meanwhile, the third robber in the car with Edwards told her to get on the freeway and take him to Los Angeles. Edwards continued driving and got on the freeway. Pierce then called her cell phone; the third robber grabbed the phone from Edwards and after speaking with Pierce instructed her to get off the freeway and drop him off. Edwards complied. Pierce then called Edwards again; he was crying and hysterical and asked her to come and get him. Feeling "bad" for Pierce, Edwards decided to go pick him up. As she was starting to drive away from where she was parked, she noticed a gun on the floor behind the driver's front seat. Feeling scared, she stopped at a restaurant and threw the gun in a trash can in the women's restroom.

Edwards picked up Pierce, who was standing on some stairs by a building. Edwards was hysterical but Pierce would not answer her questions. As she was driving, the police spotted her vehicle, pulled her over, and arrested her and Pierce. The police found a bundle of cash totaling $1,000 on the floor behind the driver's seat of Edwards's car, and $131 in loose cash in her purse. Edwards testified that she saw Pierce drop money in her purse. She believed he also put the money in the back of the car because it was not there when she spotted the gun.

When first interviewed by the police, Edwards denied knowing anything about what had occurred. About 45 minutes after the police interview ended, Edwards asked to speak to the police again and told them what she knew.

Gang Enhancement Evidence

When Pierce and Lewis were booked into jail, they were asked on a jail-booking classification questionnaire if they had any affiliation with a gang.⁴ Both men reported they were affiliated with the Rolling 60's Crips (RSC) gang. Pierce's moniker was "Mae Mae" and he had gang related tattoos on his neck, triceps and leg. Lewis's moniker was "Young Black" and he had gang related tattoos on his ear, triceps, and back. Pierce lived in RSC gang territory in Los Angeles and was known to the authorities as a documented gang member. Lewis also lived in Los Angeles, but his residence was outside of RSC gang territory.

4 This question on the booking questionnaire is designed at least in part to ensure that rival gang members are not housed together.

Officer Jeff Martin testified for the prosecution as a gang expert. Officer Martin specializes in the investigation of the RSC gang; he has investigated over 300 cases involving the RSC gang and has conducted over 3,000 interviews with 300 or 400 RSC gang members or associates. Officer Martin explained that the RSC gang is an African-American gang in South Los Angeles with over 1,000 documented members. The gang has an area that it considers its own and is "extremely territorial." If the RSC gang finds rival gang members in its neighborhood, it will beat, shoot, or kill them. However, a "good number" of active RSC gang members live outside RSC territory.

The RSC gang commits crimes both within and outside its neighborhood, including drive-by shootings, murders, assaults with deadly weapons, narcotic sales, robberies, and burglaries. According to Officer Martin, it is very common for RSC gang members to commit bank robberies outside the gang's territory because the chances of getting caught are lessened in areas where they are not known. Officer Martin further explained that the RSC gang promotes bank robberies because they are potentially the most lucrative crimes and the gang needs a way to support its members' lifestyle and to purchase weapons and narcotics to continue the gang's activities and to protect its territory. The performance of a robbery by gang members increases their status within the gang, provides a way to give money to gang members, and serves as a recruitment device for younger members by increasing the gang's show of wealth. Typically the money from a bank robbery is divided among the robbery crew and also circulated back into the gang for gang members to use to buy guns, narcotics, and other items needed to maintain the gang's activities.

The RSC gang typically commits a bank robbery with a minimum of three members, and sometimes uses four or five members. It would be very unlikely for gang members to perform a robbery with a person who had little connection to the gang because of the need to trust each other. The robberies are often well thought out, taking days or weeks of planning. For example, the gang members will check the bank beforehand for the absence of security guards and Plexiglas and for available escape routes. They usually use several cars; ideally they like to use a stolen car to take to and flee from the bank; and they often use guns, maps, ski masks, and ice chests (to try to disable the dye pack). Generally, the gang member who has the most respect or the clout to have a robbery crew working for him will not go into the bank. Rather, the leader will plan the job and then "lay off" in a vehicle at another location and help with the escape.

Based on his knowledge of the facts of the robbery committed by Pierce and Lewis, Officer Martin opined that the crime was both for the benefit of the gang and in association with the gang. Officer Martin stated that he believed both Pierce and Lewis were active gang members. Officer Martin noted Pierce and Lewis identified themselves with the RSC gang at booking and they both had prominent RSC gang tattoos. Officer Martin stated that the prominent location of the men's tattoos (including on Pierce's neck and on Lewis's ear) showed they had earned the right to get tattoos from the gang and that they had a high level of commitment to the gang. Pierce was documented as an RSC gang member in California records; Officer Martin had on two occasions personally observed Pierce inside RSC gang territory in contact with RSC gang members; and Pierce had admitted to another officer that he was an RSC gang member. Officer Martin had never seen Lewis in gang territory or had contact with him prior to the current offense. However, Officer Martin examined documents dated February 1992 which indicated Lewis had admitted being an RSC gang member. Officer Martin also concluded that the defendants' robbery was consistent with how the RSC gang typically commits robberies, including the targeting of a place outside its territory and the use of firearms, ski masks, stolen vehicles, "lay-off" cars, and three to five people.

DISCUSSION

I. Pierce's Self-Representation

Pierce argues his due process rights were violated because the trial court granted his self-representation motion (1) without holding a competency hearing, and (2) without granting him a continuance to prepare for trial.

A. Background

On September 20 and 21, 2005, the parties engaged in voir dire to select the jury. On the morning of Thursday, September 22, 2005, when jury selection was scheduled to continue, Pierce was not present in court. Defense counsel informed the court that he had been told that Pierce had swallowed razor blades. A recess was taken and at 1:55 p.m. Pierce was again present in court. At this point, Pierce requested to represent himself. The court asked why he wanted to represent himself this late in the proceedings and if he was dissatisfied with defense counsel's representation. Pierce responded that he was not dissatisfied with counsel's representation, but explained: " . . . I feel it's time to [represent myself]. Things are getting out of control. I want to represent myself. I don't think I need any further reasons besides my competence to ask for my rights." The court told Pierce that if it did grant his request, it would not guarantee that it would give him a continuance if he requested extra time to prepare. Pierce indicated that he understood this.

The trial court admonished Pierce about the risks he was taking if he represented himself, and asked Pierce if he had ever been treated for any mental illness. Pierce answered that he had been treated for a mental illness that morning, but he did not want to disclose it to the whole courtroom. The court then held a closed hearing with Pierce and his defense counsel. At the hearing, Pierce told the court he had swallowed razor blades; he had been diagnosed with bipolar disorder and "occasional episodes of depression"; and he had been provided with lithium that morning but had not yet taken it. He explained that he was first diagnosed 15 years ago; he used to take medication but had stopped taking it; and prior to the current incident his most recent diagnosis of symptoms occurred earlier in the year. After hearing Pierce's statements, defense counsel stated he did not want to request a competency evaluation, but he wanted to investigate the matter further to see if there was a basis for such a request. The trial court likewise stated it did not see a need for a competency hearing, but it encouraged defense counsel to investigate the matter and to let the court know if any information emerged warranting a hearing.

After obtaining the required waiver of rights and ensuring itself that Pierce understood the consequences of his request, the trial court granted Pierce's motion for self-representation and appointed defense counsel as stand-by counsel. Defense counsel asked the court if he could pursue the issue of competence in his capacity as stand-by counsel, and the court instructed him to do so.

Pierce then requested a continuance, explaining he needed more time to conduct legal research, obtain legal supplies, prepare motions, interview witnesses, review discovery and witness statements, and add people to the witness list. He stated he wanted to be transferred to the Riverside jail where he could have better access to the necessary resources, and that if he was denied a continuance he would seek writ relief.

The court agreed to order Pierce transferred to the Riverside jail that evening, but denied his request for a continuance. The court stated that if jury selection was completed that day (Thursday), it would defer Pierce's opening statement until Monday so he would have time to prepare it. Further, the court stated that Pierce could present his motions the following week whenever he was ready, and granted Pierce's request that his stand-by counsel finish jury voir dire. Jury selection continued on Thursday until the proceedings were adjourned for the day.

On Monday, September 26, 2005, the proceedings resumed. The court told Pierce that it wanted to clarify certain matters about his self-representation. The court stated the self-representation motion was untimely which provided grounds to deny it, but that the court wanted to try to accommodate the request. The court stated that it had told Pierce on Thursday that it could not continue the trial, and it could only provide Pierce more time to bring certain motions and to present his opening statement on Monday. With this understanding, the court then asked Pierce if he still wanted to represent himself. Pierce answered yes.

B. Analysis

1. Competency

A defendant must be mentally competent to be permitted to waive counsel and exercise the right of self-representation. (People v. Welch (1999) 20 Cal.4th 701, 729 (Welch).) Section 1368 requires the trial court to conduct a competency hearing if the court declares a doubt about competency and defense counsel confirms this doubt. (§ 1368, subds. (a), (b); see Welch, supra, at pp. 737-738; People v. Smith (2003) 110 Cal.App.4th 492, 499-500.)⁵ In addition to this statutory requirement, constitutional due process mandates a competency hearing in cases where there is substantial evidence of incompetency, regardless whether the trial court entertains a doubt as to competency. (Welch, supra, at p. 738; Smith, supra, at p. 500; People v. Castro (2000) 78 Cal.App.4th 1402, 1415, disapproved on other grounds in People v. Leonard (2007) 40 Cal.4th 1370, 1391, fn. 3.) Here, the trial court did not declare a doubt regarding Pierce's competency but instead stated it did not perceive an incompetency issue based on the information before it. Thus, the trial court was not required to hold a competency hearing under section 1368. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1111-1112.)⁶ The issue before us is whether, prior to granting the request for self-representation, the trial court was required to hold a competency hearing under the constitutional standard because it was presented with substantial evidence of incompetency.

5 Section 1368 states: "(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. . . . [¶] (b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing . . . ."

6 Pierce interprets section 1368 to require a competency hearing whenever defense counsel expresses an opinion that the defendant may be incompetent, and he asserts that such an opinion was implicitly expressed by defense counsel here. Although the California Supreme Court arguably has set forth this interpretation of the statute in dicta (see People v. Ramos (2004) 34 Cal.4th 494, 507; People v. Hayes (1999) 21 Cal.4th 1211, 1281), such an interpretation is contrary to the Supreme Court's express holdings in other cases. (See People v. Howard (1992) 1 Cal.4th 1132, 1163-1164 [section 1368 does not mandate competency hearing based solely on defense counsel's opinion without substantial supporting evidence]; People v. Panah (2005) 35 Cal.4th 395, 433 [defense counsel's opinion, standing alone, is not dispositive but only one factor for trial court to consider in determining whether substantial evidence exists]; accord People v. Rodrigues, supra, 8 Cal.4th at p. 1112; People v. Ramirez (2006) 39 Cal.4th 398, 430-431; see also People v. Blair (2005) 36 Cal.4th 686, 719-720; Welch, supra, 20 Cal.4th at pp. 739, fn. 7, 743; People v. Frye (1998) 18 Cal.4th 894, 953.) In any event, the record shows defense counsel indicated to the court he did not believe based on the current information that a section 1368 hearing was warranted.

To preserve the defendant's due process rights, the trial court must "conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence . . . ." (People v. Blair, supra, 36 Cal.4th at p. 711; Welch, supra, 20 Cal.4th at pp. 737-738.) A defendant has a constitutional right to a competency hearing if there is " 'substantial evidence that he is incapable . . . of understanding the nature of the proceedings against him or of assisting in his defense. Once such substantial evidence appears, a doubt as to the sanity of the accused exists, no matter how persuasive other evidence—testimony of prosecution witnesses or the court's own observations of the accused—may be to the contrary . . . . [W]hen [there is] . . . substantial evidence of present mental incompetence, he is entitled to a section 1368 hearing as a matter of right . . . . The judge then has no discretion to exercise.' " (People v. Laudermilk (1967) 67 Cal.2d 272, 283; see also People v. Castro, supra, 78 Cal.App.4th at pp. 1415-1416 [court has sua sponte duty to order competency hearing when aware of substantial evidence of incompetency].)

The test for competency is whether the defendant has the "mental capacity to understand the nature and purpose of the proceedings against him or her"; the defendant's legal knowledge or ability is irrelevant. (People v. Blair, supra, 36 Cal.4th at p. 711; Welch, supra, 20 Cal.4th at pp. 733-734 .)⁷ To constitute substantial evidence of incompetency, the evidence must relate to the defendant's inability to understand the proceedings. (See People v. Davis (1995) 10 Cal.4th 463, 527; People v. Rogers (2006) 39 Cal.4th 826, 846-847.) Bizarre actions or statements, suicidal tendencies, or a history of mental illness do not alone trigger the court's constitutional duty to hold a competency hearing if they do not reflect on the defendant's current mental capacity to understand the proceedings. (See People v. Davis, supra, 10 Cal.4th at p. 527; People v. Blair, supra, 36 Cal.4th at p. 714; People v. Rogers, supra, 39 Cal.4th at pp. 847-848; People v. Ramos, supra, 34 Cal.4th at pp. 508-509.) The question as to what constitutes substantial evidence of incompetency so as to compel a competency hearing " 'cannot be answered by a simple formula applicable to all situations.' " (People v. Laudermilk, supra, 67 Cal.2d at p. 283.)

7 The standards for competence to waive counsel and engage in self-representation are the same as for competence to stand trial. (People v. Blair, supra, 36 Cal.4th at p. 711.) However, in order to be permitted to exercise the right of self-representation, the defendant, in addition to being competent, must also be able to knowingly and intelligently waive the right to counsel. (Welch, supra, 20 Cal.4th at pp. 732-733.)

For example, in Drope v. Missouri (1975) 420 U.S. 162, 166-167, 179-181, the court held there was a reasonable doubt about the defendant's competency so as to require a competency hearing based on the combined effect of the defendant's attempt to kill himself during trial by shooting himself in the abdomen, his attempt to choke the complaining witness (his wife) just prior to trial, and his absence from a crucial portion of the trial (because of the suicide attempt) which prevented observation of his demeanor. In contrast, in Rogers, the court concluded a competency hearing was not compelled even though the defendant had suicidal tendencies and had been diagnosed with a possible multiple personality disorder. (People v. Rogers, supra, 39 Cal.4th at pp. 847-849.) The Rogers court noted that the defendant's suicidal tendencies "were not accompanied by bizarre behavior, the testimony of a mental health professional regarding competence, or any other indications of an inability to understand the proceedings or to assist counsel . . . ." (Id. at p. 848.)

Here, the court was provided with information that Pierce had been diagnosed as bipolar and that at the time of trial he had swallowed razor blades and been prescribed lithium. There were no indications that he suffered any injury from the razor blade incident that impacted his mental functioning or impeded his ability to understand the proceedings. There was no suggestion that he was currently psychotic or otherwise mentally impaired because of the mental illness diagnosis. Defense counsel told the court that he did not view the current information as warranting a competency hearing, but stated he would investigate the matter further. The court agreed that defense counsel should pursue the matter and requested to be apprised if relevant information was discovered. No further information was provided to the court about the possibility of Pierce's incompetency. The trial court was entitled to rely on the assumption that defense counsel properly investigated the matter and found no reason for requesting a competency hearing. (See People v. Ramirez, supra, 39 Cal.4th at p. 432.) Further, the trial record reflects that Pierce actively examined and cross-examined witnesses, made objections, and presented arguments to the court.⁸ The record does not suggest that the trial court should have questioned Pierce's competency based on the manner in which he participated during trial.

8 Pierce's advisory counsel presented closing arguments to the jury for Pierce.

Pierce also asserts that a doubt as to his competency was shown because he again swallowed razor blades after the guilt phase of the trial while he was awaiting sentencing. If there was a duty to hold a competency hearing at this juncture, it would impact only the proceedings occurring after that point because we review the correctness of the trial court's ruling at the time it was made, not by reference to evidence produced at a later date. (Welch, supra, 20 Cal.4th at p. 739.) In any event, as with the previous razor blade episode, there is nothing to indicate that the conduct impacted Pierce's ability to understand the proceedings. Moreover, Pierce did not tell the court that he swallowed razor blades a second time. Rather, he stated that he was placed in a safety cell "in case [he] might" engage in this conduct again.

No evidence was presented indicating that Pierce's alleged acts of swallowing razor blades or his mental illness diagnosis might have impacted his ability to understand the nature and purpose of the proceedings. Because the trial court was not presented with substantial evidence of Pierce's incompetency, it was not constitutionally required to hold a competency hearing.

Pierce additionally argues his counsel provided ineffective representation by failing to request a competency hearing. To prevail on an ineffective representation claim, the defendant must show that counsel's representation fell below an objective standard of reasonableness and that the defendant suffered prejudice as a result. (Welch, supra, 20 Cal.4th at p. 743.) Because there is nothing to suggest Pierce might not have been unable to understand the proceedings, the appellate record does not support a claim that reasonably competent counsel would have requested a competency hearing.

2. Continuance

A trial court is not required to grant a request for self-representation if it is made on the eve of trial. (People v. Hill (1983) 148 Cal.App.3d 744, 756.) Such an untimely request is committed to the discretion of the trial court. (Ibid.) If the trial court exercises its discretion to grant an untimely self-representation motion and the defendant requests a continuance to prepare, the trial court must grant a reasonable continuance. (Id. at pp. 756-758.) " 'While it is now settled that a trial court may deny a request for self-representation made on the very eve of trial, on the ground that granting the motion would involve a continuance for preparation, the very rationale of that doctrine requires that, if the trial court, in its discretion, determines to grant the request for self-representation it must then grant a reasonable continuance for preparation by the defendant.' " (Id. at p. 757.) To deny a pro per defendant a reasonable continuance to prepare for trial " 'would be to render his right to appear in propria persona an empty formality, and in effect deny him the right to counsel.' " (Id. at p. 756.)

The California Supreme Court has clarified that this rule requiring a trial court to grant a pro per defendant a continuance does not necessarily apply under circumstances where the trial court makes clear that it will not grant an untimely self-representation motion if a continuance is necessary, and the defendant then convinces the court that he or she is able to proceed immediately. (People v. Clark (1992) 3 Cal.4th 41, 110.) Delineating circumstances that showed no constitutional violation, the court in Clark stated: "[T]his trial court made clear its intent to deny the Faretta motion as untimely if a continuance would be necessary. It had in fact denied other Faretta motions on this basis. The Faretta motion was ultimately granted only when defendant expressly represented he was able to proceed without a continuance." (Ibid.; accord, People v. Jenkins (2000) 22 Cal.4th 900, 1039.)

Here, when Pierce first made his self-representation request on Thursday, the trial court warned Pierce that he might not get a continuance. After self-representation was granted, Pierce requested a continuance and stated he would seek writ review if his request was denied. The trial court denied the continuance. The record does not show that Pierce followed through on his plan to seek writ review. When the proceedings resumed on Monday, the trial court gave Pierce an opportunity to reconsider his self-representation status given the fact that he would not be given a continuance. Pierce stated he still wanted to represent himself. Comparable to the situation in Clark, Pierce's response on Monday reflected his assessment that he was able to proceed to trial without a continuance. Under these circumstances, his due process rights were not violated.

II. Gang Enhancement Issues

Pierce and Lewis argue (1) the trial court erred in refusing to bifurcate the trial of the gang enhancement allegation, (2) the court erred in allowing the prosecution's gang expert to state his opinion that the crime was for the benefit of and in association with the gang, (3) there is insufficient evidence to support the gang enhancement finding, and (4) the court erred in its answer to a jury question regarding the gang enhancement.

A. Bifurcation of Gang Enhancement

1. Background

Section 186.22, subdivision (b)(1) provides for enhanced punishment when a defendant commits a felony "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 . . . ." Prior to trial, defendants moved to bifurcate the trial of the gang enhancement allegation. The prosecution opposed the motion, arguing that evidence regarding the gang enhancement and the charged offenses was intertwined. The prosecution asserted that the gang connection between Pierce and Lewis was relevant to prove their commission of the robbery and conspiracy to commit robbery. Further, the gang expert evidence identifying robbery as a primary activity of the gang was relevant to prove the motive, intent, and plan to commit the robbery. The prosecutor noted that although Lewis had confessed to committing the robbery, Pierce had not confessed and there was no evidence that Pierce was one of the robbers in the bank. Accordingly, the prosecutor asserted the gang evidence was necessary to tie Pierce to the planning and execution of the robbery.

Pierce and Lewis asserted that the gang evidence was more prejudicial than probative regarding the charged robbery-related offenses. They also specifically objected to the admission of prior convictions, including gang-related convictions.

The trial court observed that some of the gang-related evidence would overlap with the charged offenses, whereas other evidence appeared to be primarily relevant only to the gang enhancement. The trial court stated that the prosecution was entitled to present gang-related evidence that was relevant to the charged robbery-related offenses, but that it was concerned that some of the evidence that related primarily to the gang enhancement might be more prejudicial than probative as to the robbery-related offenses. Specifically, the court stated that evidence that Lewis was convicted of a 1992 robbery that may have been gang related might be admissible to prove the gang enhancement, but that it was unduly prejudicial for purposes of the charged robbery-related offenses. The trial court noted that it was difficult to make a ruling on bifurcation without knowing what precise evidence the prosecution intended to introduce that was solely relevant to the gang enhancement.

The prosecution informed the court that it was not yet sure whether it would be seeking to introduce prior convictions, and proposed that it notify the court and parties if it intended to introduce such evidence so that the bifurcation issue could be considered at that point. The trial court agreed this was a proper way to handle the matter. Accordingly, the trial court denied the bifurcation motion, with the understanding that the prosecution would caution its witnesses and refrain from introducing evidence of the defendants' prior criminal activity without discussing the issue with defense counsel. The court noted that it had no problem with the jury hearing about the gang allegation, and that its concern was that the jury not be presented with evidence that was primarily relevant only to the gang enhancement and that was unduly prejudicial for purposes of the charged robbery-related offenses.

During the pretrial hearing on the bifurcation motion, Pierce was still represented by counsel. After the commencement of trial when Pierce was representing himself, he renewed the bifurcation motion, arguing that the gang evidence was prejudicial. At this point in the trial, the prosecution had not yet introduced its gang-related evidence. The trial court adhered to its earlier ruling, stating that if the prosecutor proffered evidence that the court determined was relevant to the gang enhancement but unduly prejudicial as to the charged robbery-related offenses, it would consider bifurcation at that point. The trial court noted that no such evidence had been introduced up to that point in the trial.

Thereafter, the prosecution continued with presentation of its evidence, including the gang-related evidence. In its case in chief, the prosecution did not present evidence of defendants' prior convictions to prove the charged robbery-related offenses or the gang enhancement.⁹ Although Pierce and Lewis made relevancy and various other objections to some of the gang-related evidence, there was no further request for bifurcation.

9 The prosecution's gang expert merely stated that he had examined documents dated 1992 wherein Lewis admitted he was an RSC gang member. The prosecution did not refer to Lewis's 1992 conviction until the prosecutor cross-examined Lewis during the defense case.

2. Analysis

Because evidence of gang membership is potentially prejudicial, our Supreme Court has instructed that in cases not involving the gang enhancement such evidence should not be admitted if its probative value is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) In contrast, in cases that do involve the gang enhancement, it is well-established that expert opinion testimony about gang culture and habits is admissible to prove the enhancement. (People v. Gardeley (1996) 14 Cal.4th 605, 617; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) However, a trial court has the discretion to bifurcate the trial of the gang enhancement from the trial of guilt if it determines that the gang evidence is "so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (People v. Hernandez, supra, 33 Cal.4th at p. 1049.)

In both types of cases, a trial court's exercise of its discretion is guided by the extent to which the gang evidence is relevant to prove issues pertinent to guilt of the charged crime. (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) As explained in Hernandez, "Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (Id. at p. 1049.) If the gang evidence is sufficiently relevant to the charged offenses, neither exclusion nor bifurcation is required. (See id. at pp. 1049-1050.)

Moreover, a trial court's discretion to deny bifurcation of a charged gang enhancement is broader than its discretion to admit gang evidence when the gang enhancement is not charged. (People v. Hernandez, supra, 33 Cal.4th at p. 1050.) Accordingly, a trial court may deny bifurcation even if some of the gang enhancement evidence would be inadmissible under Evidence Code section 352 in a case where no gang enhancement is charged. (Hernandez, supra, at p. 1050.) To obtain bifurcation in a gang enhancement case, the defendant has the burden " 'to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' " (Id. at p. 1051.)

Here, as anticipated by the prosecution during the in limine hearing on bifurcation, Pierce argued to the jury that he was not guilty of robbery or conspiracy to commit robbery. Pierce noted that the prosecutor conceded he was not one of the robbers inside the bank, and asserted that Edwards's testimony tying him to the robbery was not sufficiently reliable to prove his guilt beyond a reasonable doubt. Further, when Lewis testified, Lewis sought to exonerate Pierce from involvement in the robbery, stating that Pierce was a casual acquaintance, he did not discuss the robbery with Pierce, and Pierce did not want to give Lewis a ride after the robbery. Given the evidence that Pierce was not one of the robbers inside the bank and the defense theory that Pierce did not participate in the robbery with Lewis, the evidence that Pierce and Lewis were both RSC gang members was highly relevant to prove that Pierce planned and had a motive to commit the robbery with Lewis. Because the gang evidence had significant probative value to proof of the charged robbery-related offenses, the trial court did not abuse its discretion in denying the bifurcation request.

Pierce argues that the gang evidence was redundant because there was money from the bank found in his Mercedes and in Edwards's Dodge, and witnesses placed him with Lewis and the three vehicles before the robbery. Pierce's association with Lewis before the robbery and the presence of the money did not necessarily establish Pierce's participation in the planning and execution of the robbery. Indeed, Pierce argued to the jury that Pierce had no involvement with the money until after the robbery and escape were completed. Given the dispute over Pierce's involvement in the robbery, the evidence of the gang connection between Pierce and Lewis was not cumulative evidence.

Pierce argues that the gang enhancement should have been bifurcated because some of the gang evidence was "horrifying," depicting the "bloody rivalry and murders" committed by the RSC gang. The record does not support this contention. To meet the prosecution's burden to show that the RSC gang was a "criminal street gang" for purposes of the gang enhancement (§ 186.22, subd. (f)), Officer Martin described the crimes regularly committed by the gang and delineated various specific crimes committed by gang members.¹⁰ Although Officer Martin also referred to the gang's practice of beating, shooting, or killing rival gang members that enter its territory, the evidence was not so gruesome that it compelled bifurcation.

10 To prove a gang enhancement, the prosecution must establish that the gang is a "criminal street gang," which requires a showing that one of the gang's primary activities is a statutorily-specified crime and that gang members have engaged in a pattern of criminal activity. (§ 186.22, subds. (e), (f); People v. Hernandez, supra, 33 Cal.4th at p. 1047.)

Finally, Pierce complains that some of the gang-related evidence was irrelevant to the issues in the case (i.e., regarding such matters as the attitude of gang members towards authority and the public, the use of monikers, the wearing of gang colors, and a gang member's drawing of a bank set on fire). The possibility that some extraneous information regarding gangs may have been presented to the jury does not show that bifurcation was required. Moreover, Pierce has not attempted to show, nor does the record support, that the complained-of gang-related matters admitted during trial over defense objection were of such significance as to have affected the outcome of the case.

In his appellate briefing, Lewis generally joins in Pierce's bifurcation argument, but makes no argument specific to him (Lewis). As noted by the trial court during the pretrial bifurcation discussion, the fact that Lewis admitted his participation in the robbery made it likely that the jury would convict him of the robbery charge regardless of whether the gang enhancement allegation was litigated at the same time. Further, the conspiracy charge was dismissed so there could be no prejudice arising from this charge.

The trial court did not abuse its discretion in denying the bifurcation motion.

B. Expert Opinion Regarding Gang Enhancement

To establish the gang enhancement the prosecution had to prove that the robbery was (1) "for the benefit of, at the direction of, or in association with" a criminal street gang, and (2) that the defendants had "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) Over defense objection, the trial court ruled the prosecution's gang expert could give an opinion regarding the benefit/association element, but not the specific intent element of the enhancement. Pierce and Lewis argue the trial court erred in allowing Officer Martin to testify that in his opinion the robbery was for the benefit of and in association with the RSC gang.

To be admissible, expert opinion testimony must be "[r]elated to a subject that is sufficiently beyond common experience" so that the opinion "would assist the trier of fact." (Evid. Code, § 801, subd. (a).) If expert opinion evidence addresses a matter beyond common experience, it is admissible even if it encompasses an ultimate issue in the case. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371; Evid. Code, § 805.) The jury need not be wholly ignorant of the subject matter of the opinion to justify its admission. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.) Even if the jury has some knowledge of the matter, expert opinion may be admitted if it would assist the jury. (Id. at p. 1300.) The expert opinion testimony must be excluded only " 'when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness." ' " (Ibid.) On appeal, we apply the abuse of discretion standard to review a trial court's admission of expert opinion testimony. (Id. at p. 1299.)

The courts have recognized that "[e]xpert testimony repeatedly has been offered to show . . . 'whether and how a crime was committed to benefit or promote a gang.' " (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) For example, in People v. Olguin, supra, 31 Cal.App.4th at page 1367, the expert testified that defacing a gang's graffiti was a sign of disrespect and opined that the charged crime of murder (which was precipitated by graffiti defacement) was committed for the benefit of the gang. The court in Olguin rejected the defendant's argument that the expert's opinions "exceeded the permissible scope of expert testimony because 'it was . . . [the expert] who drew the inferences from evidence, not the trier of fact.' " (Id. at p. 1370.) The Olguin court reasoned that the defendants' reasons for seeking out the person who crossed out their graffiti was a matter sufficiently beyond common experience to allow the expert's testimony. (Id. at p. 1371.)

However, the scope of an expert's opinion testimony is restricted by the rule that when the trier of fact is as competent as the expert to make a particular factual determination, expert opinion testimony on this fact is of no assistance to the trier of fact and should be excluded. (See People v. Torres (1995) 33 Cal.App.4th 37, 45, 47.) Further, the courts exercise caution to ensure that the expert's testimony is "not tantamount to expressing an opinion as to [the] defendant's guilt." (See People v. Ward (2005) 36 Cal.4th 186, 210; People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) Consistent with these principles, the courts have concluded that although a gang expert may testify regarding gang-related motivations and may provide gang-related information from which the jury may infer the defendant's state of mind, generally the gang expert may not give an actual opinion about the particular defendant's subjective knowledge or intent. (See People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551; People v. Killebrew, supra, 103 Cal.App.4th at p. 658; People v. Olguin, supra, 31 Cal.App.4th at p. 1371; People v. Gonzalez (2006) 38 Cal.4th 932, 946 & fn. 3; People v. Ward, supra, 36 Cal.4th at pp. 209-210.)

Here, Officer Martin testified that one of the RSC gang's primary activities was robbery and that robberies provided a financial means for the gang to continue its activities. He described the typical modus operandi for the gang's robberies and the factors that he believed showed the defendants were active RSC gang members. The jury had to consider this information to evaluate whether the charged robbery was for the benefit of or in association with the RSC gang. The trial court could reasonably conclude that the jury would benefit from Officer Martin's opinion on this issue because, unlike the jurors, he had investigated numerous crimes committed by the RSC gang, he was familiar with how the gang committed its crimes, and he had insight into the strength of a person's ties to a gang.

Further, Officer Martin did not give an opinion about the defendants' subjective knowledge or intent. Rather, he gave an opinion that the robbery itself was for the benefit of and in association with the gang based on such observable matters as the gang's practice of committing robberies, the manner in which the robbery was committed, and the indicia that the defendants were active gang members. Although from this information the jury could readily infer that the defendants had the specific intent required to establish the gang enhancement, Officer Martin did not purport to resolve this issue for the jury when giving his opinion that the robbery was for the benefit of and in association with the RSC gang.

Appellants cite People v. Albarran (2007) 149 Cal.App.4th 214 for the proposition that a gang expert may not testify regarding gang-related motives for a crime. Albarran does not stand for such a rule. In Albarran, the appellate court reversed the judgment based on the trial court's admission of "extremely inflammatory" and irrelevant gang evidence, and its denial of a new trial motion after the trial court found insufficient evidence to support the gang enhancement. (Id. at pp. 217, 227-232.) This is not the situation here.

The trial court did not abuse its discretion in allowing Officer Martin to opine that the robbery was for the benefit of and in association with the RSC gang.

C. Sufficiency of the Evidence for Gang Enhancement

Pierce and Lewis challenge the sufficiency of the evidence to support the gang enhancement, arguing the record does not support a finding that the robbery was committed for the benefit of or in association with the gang.

In evaluating the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the enhancement true beyond a reasonable doubt. (See People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)

The gang enhancement applies if the crime was (1) for the benefit of, (2) at the direction of, or (3) in association with the gang. (§ 186.22, subd. (b)(1).) Although a crime committed "in association" with the gang suffices even if there is no showing that the crime was for the benefit of the gang (People v. Morales (2003) 112 Cal.App.4th 1176, 1198), a perpetrator's mere membership in the gang does not suffice to establish the gang enhancement (see In re Frank S., supra, 141 Cal.App.4th 1192, 1199; People v. Albarran, supra, 149 Cal.App.4th at p. 227; People v. Morales, supra, 112 Cal.App.4th at p. 1198 [gang enhancement not supported if circumstances show gang members committed crime "on a frolic and detour unrelated to the gang"]). All the circumstances must be evaluated to determine if the evidence shows the crime was gang-related. (Compare Morales, supra, at pp. 1182-1183, 1197-1198 [evidence showing commission of crime by gang member defendant in association with two other gang members sufficient to establish gang enhancement; gang member witness told police he would not testify against gang-member defendants because he was afraid of gang retaliation] and People v. Villalobos (2006) 145 Cal.App.4th 310, 315, 322 [sufficient evidence of gang enhancement based on defendant's identification of herself as girlfriend of codefendant at time of the offense and her commission of the crime with gang member codefendant in gang territory] with In re Frank S., supra, 141 Cal.App.4th at pp. 1195, 1199 [insufficient evidence of gang enhancement where only evidence of gang-related intent was single perpetrator's gang membership], People v. Albarran, supra, 149 Cal.App.4th at pp. 217, 227; see id. at p. 235, fn. 3 (dis. opn. of Perluss, J.) [insufficient evidence of gang enhancement where only evidence of gang-related motive was defendant's gang membership; there was no evidence second perpetrator was gang member], and People v. Martinez (2004) 116 Cal.App.4th 753, 762 [insufficient evidence for gang registration requirement where defendant was gang member but no evidence accomplice was gang member].)

Evidence was presented showing that on the morning of the robbery Pierce and Lewis drove from Los Angeles to Temecula with another African-American male. Lewis and the other male went inside and robbed the bank, with Pierce serving as a get-away driver. Pierce and Lewis had prominent RSC gang tattoos and acknowledged their association with the gang at booking. The third robber's ethnicity matched the ethnicity of the RSC gang. Expert evidence indicated that the RSC gang uses robberies to generate money to support its activities; that it favors robberies in areas outside its territory to decrease detection; and its robberies are typically accomplished by "casing" the bank beforehand and using ski masks, multiple robbers, a stolen vehicle, and an escape driver at another location.

The fact that two gang members committed the type of crime that their gang was well known for committing and in a manner consistent with that gang's method of operation provided a reasonable basis for the jury to infer that Pierce and Lewis committed the crime for the benefit of or in association with their gang. Although Lewis testified that he was no longer active in the RSC gang, the jury could reasonably reject this testimony based on the fact that he was associating with, and committed a crime with, currently active RSC gang member Pierce. The jury could also have reasoned that Lewis's prominent tattoos showed a high commitment to the gang, these ties would not be easily severed, and if he had truly broken with the gang he would not be in the company of gang member Pierce. The strength of Lewis's connection to the gang was supported by his testimony that his uncle was in the RSC gang, that he (Lewis) had joined the gang in 1985 when he was in middle school, and that he committed a robbery in 1992 when he was an active gang member. Further, the record does not show that Lewis had lived a "gang free" lifestyle for a lengthy period of time in the community—i.e., he was in prison from 1992 until November 2001, and he had been out of prison for only one year when he committed the current robbery. The facts that Lewis was employed and was living outside RSC gang territory at the time of the current robbery did not compel a finding that he was no longer active with the gang. The jury could properly rely on Officer Martin's testimony that not all gang members lived in the gang's territory. Even though Officer Martin testified that many gang members did not have full-time jobs, he also suggested this did not mean an employed person could not be active in a gang on their "off-hours."

Appellants suggest that the gang enhancement finding is unsupportable because the third robber was Hispanic (and thus could not have been an RSC gang member) and Edwards, who was not a gang member, was also involved in the events. The record does not show that the third robber was Hispanic. The bank employees testified that both robbers inside the bank were African-American; Edwards identified Pierce's two companions as African-American; and Mack testified that all of the occupants of the vehicles parked on her street were African-American. Although a witness who was in the parking lot told the police that one robber had "light skin, possibl[y] Latin coloration," she also stated the two robbers were "Black male adults."¹¹

11 Lewis did not state that his accomplice was Hispanic, but merely described him as having very light complexioned skin.

The gang enhancement finding is not defeated merely because Edwards participated in the events the morning of the robbery. The jury could reasonably conclude that Pierce trusted that Edwards would not hinder or betray his gang-related activities because she was in love with him and would be compliant with his wishes. Based on the evidence of the gang membership of two of the three robbers and the evidence showing that the robbery was consistent with the type and manner of crimes regularly committed by the gang, the record supports the jury's gang enhancement finding. Given the evidence in support of the gang enhancement, appellants' general evidentiary challenge to the vicarious gun use enhancement for gang-related crimes also fails.

D. Jury Question Regarding Gang Enhancement

The jury was instructed regarding the gang enhancement in the language of CALJIC No. 17.24.2, which tracks the language of section 186.22, subdivision (b)(1), as follows:

"The essential elements of this allegation are:

"1. The crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang; and

"2. These crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members." (See CALJIC No. 17.24.2, italics added.)

During deliberations, the jury submitted a note asking whether the second element of the enhancement listed in CALJIC No. 17.24.2 could be satisfied for all defendants if only one gang member was involved in the robbery. The court provided the jury a written response stating: "Under instruction 17.24.2, the second essential element requires that the crime or crimes were committed with the specific intent to promote, further or assist in any criminal conduct by gang members, not criminal conduct by a single gang member. The criminal conduct by gang members that defendants Pierce and Lewis allegedly intended to promote, further or assist may include but is not limited to the crimes charged in this case."

Appellants argue the trial court should simply have answered the jury question with a "no."

Prior to the court's provision of an answer to the jury, the court and the parties engaged in a lengthy discussion regarding whether the specific intent element required an intent to further or assist criminal conduct by at least two gang members, or whether an intent to assist or further criminal conduct by one gang member would suffice. The defense argued that the intent had to relate to criminal conduct committed by multiple gang members because section 186.22, subdivision (b), used the plural term "gang members," not the singular term "gang member," and thus the trial court should simply answer the jury's question with a "no." The prosecution argued that this interpretation did not make sense, because the gang enhancement should apply if a single gang member committed a crime for the gang, or if a single gang member recruited nongang members to assist with a gang-related crime. The prosecution requested that the question be answered simply by referring the jury back to the instruction.

The trial court decided to instruct the jury that the specific intent must relate to criminal conduct by gang members, not criminal conduct by a single gang member. In addition, the court stated its view that the statute did not require that the specific intent relate to the charged criminal conduct, but could concern any criminal conduct, and accordingly added this concept to its answer.

We need not decide the proper interpretation of the specific intent element set forth in section 186.22, subdivision (b) because appellants cannot show prejudice based on the court's response. Consistent with the defense request, the court told the jury that the defendant's specific intent must relate to criminal conduct committed by multiple gang members, not a single gang member. This portion of the answer was, in effect, the same as the "no" answer requested by the defense.

Appellants argue the trial court's response was confusing. We are satisfied the jury was able to understand the answer, and that there is no reasonable probability the outcome would have been different had the trial court answered the question with a simple "no." Apart from their argument that the response was confusing, on appeal appellants do not challenge the legal correctness of the second portion of the court's answer stating that the intent to further or assist gang members' criminal conduct need not be confined to the charged crimes. Accordingly, we need not evaluate this matter further.

III. Vicarious Gun Use Enhancements for Gang Related Crime

Appellants argue there is insufficient evidence to support the vicarious gun use enhancements for the counts related to bank manager Steele and to the tellers who were robbed at their stations (Carrillo and Johnson). To support their argument, they rely on the jury verdict that Lewis did not personally use a gun during the robberies, their claim that Lewis was the robber who jumped over the counter, and their assertion that there was no evidence that a gun was pointed at Steele, Carrillo, or Johnson.

As noted, appellants were not convicted of personal firearm use under section 12022.53, subdivision (b) standing on its own, but of vicarious firearm use under section 12022.53, subdivision (e)(1) for a gang-related crime. This latter section allows imposition of the personal firearm use enhancement when the defendant commits a gang-related crime under section 186.22, subdivision (b) and any principal uses a firearm during the crime, regardless of whether the defendant personally used the firearm. (See People v. Salas (2001) 89 Cal.App.4th 1275, 1281.) Further, as long as the gun was used to facilitate the robbery of a particular victim, it is not necessary that the gun have been pointed at the victim to support a gun use enhancement for that victim. (See People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059-1060.) Steele and Carrillo testified that they saw one or more guns when the robbers first burst into the bank and announced the robbery. Johnson (who did not testify at trial) was at her station near Carrillo and thus the jury could infer she also saw the gun. The jury could reasonably conclude that the displaying of a gun by at least one of the robbers frightened Steele, Carrillo, and Johnson and caused them to cooperate with the robbers and allow the seizure of the money. Even if the jury believed that Lewis was the counter-jumper robber, and that the prosecution did not prove that Lewis used a gun when he robbed Steele, Carrillo and Johnson, the jury could still conclude that the other robber's display of a gun upon entry into the bank facilitated the perpetration of the robbery against these three victims.

Because the record supports the vicarious, gang-related gun use enhancements for these three counts, appellants' evidentiary challenge in this regard fails.

IV. Constructive Possession

Appellants argue (1) the trial court gave an erroneous instruction to the jury regarding constructive possession, and (2) the evidence is insufficient to support a finding that bank manager Steele and teller Scharf constructively possessed the money taken by the robbers.

The trial court instructed the jury as follows: "Constructive possession does not require actual possession, but does require a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. [¶] One person may have possession alone, or two or more persons together may share actual or constructive possession. An employee exercises control or the right to control bank property if the employee under the circumstances has either express or implied authority over the bank's property. [¶] A bank employee may be the victim of a robbery even though he or she is not the owner and not at the moment in immediate control of the allegedly stolen property, so long as that employee is in constructive possession of the property at the time of the taking." (Italics added; see CALJIC No. 9.40.3.)

Appellants argue that the instruction erroneously told the jury that all bank employees were in constructive possession of bank property. This claim misstates the record. The instruction stated that bank employees are in constructive possession if they have express or implied authority over the property.

As to appellants' evidentiary challenge, there is sufficient evidence to support findings that Steele and Scharf had constructive possession of the money stolen by the robbers. Constructive possession exists when a person has the right to control the property. (People v. Frazer (2003) 106 Cal.App.4th 1105, 1111-1112.) A fact finder may find that an employee has the right to control his or her employer's property if the employee has "sufficient representative capacity with respect to the owner of the property" so as to have "express or implied authority over the property." (Id. at p. 1115.) An employee may be deemed to have implied authority if the circumstances show that he or she is expected to safeguard the employer's property, even though the employee may not normally have access to the property because of his or her particular job function. (See ibid.; People v. Gilbeaux (2003) 111 Cal.App.4th 515, 523.)¹²

12 The issue of whether employee status alone is sufficient to establish constructive possession during a robbery is currently pending before the California Supreme Court. (People v. Scott (S136498) review granted Nov. 16, 2005.)

Bank manager Steele testified that she did not have keys to the drawers controlled by the individual tellers. However, her function as bank manager made her responsible for the functioning of the bank. Based on this position of authority, the jury had an ample evidentiary basis to conclude she was expected to safeguard the bank's money and thus that she had authority over the stolen money.

Scharf testified that when the robbery occurred she was in the process of "selling cash" to Harris who needed money for her drawer. Scharf explained that when a teller needed cash, a "dual control" process was used, which required that two tellers retrieve the cash from the vault, that the first teller count the cash, and that the second teller verify the count. When this process is completed, the second teller acquires the cash to place in his or her drawer. Based on the dual control procedure, both Scharf and Harris were responsible for the transfer of the money from the vault to Harris's drawer. Even though the money was "sold" to Harris to place in her drawer, Scharf was charged with the responsibility of ensuring that the money was not misappropriated. Based on her right to control the money, the record supports a finding that Scharf constructively possessed the money.

V. Pierce's Upper Term Sentence

Pierce challenges the trial court's imposition of an upper term sentence, arguing the term was unconstitutional under the Apprendi rule and an abuse of discretion.¹³

13 The trial court also imposed an upper term on Lewis. However, Lewis does not challenge this ruling.

Pierce's criminal record included a June 1995 conviction for attempted murder, for which he served a prison term and was paroled in December 2001. The court selected upper terms for the current robbery offenses, finding no mitigating circumstances and the following aggravating circumstances: the crime involved a high degree of cruelty, viciousness or callousness; Pierce has served a prior prison term; and Pierce induced others to participate in the crime or occupied a position of leadership or dominance. The court elected to sentence the robbery offenses consecutively based on findings that Pierce had engaged in violent conduct which indicated he was a serious danger to society and the robberies were carried out in a manner indicating planning, seriousness, or professionalism. The court selected the count 2 robbery as the principal term, and because of Pierce's strike prior conviction the court doubled the upper term to 10 years. The court added a 10-year enhancement for the vicarious firearm use enhancement and stayed sentence on the gang enhancement. For the remaining four robbery counts and accompanying gang enhancements, the court imposed consecutive sentences of five years, four months. Pierce was also convicted of reckless vehicular evasion of the police (Veh. Code, § 2800.2) with a gang enhancement, which the court found should be punished with a two-year four-month consecutive sentence because it was committed at a different time than the robberies and separately endangered the public. Pierce also received a five-year term for a serious felony prior conviction, giving him a total sentence of 48 years and eight months.

A. Apprendi Error

Pierce argues the trial court's imposition of an upper term based on facts not found by the jury beyond a reasonable doubt violated his jury trial rights under the Apprendi rule.

1. Governing Legal Principles

A defendant has a constitutional right to have the jury, not the trial judge, decide all facts that increase the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490; Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely); Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 860 (Cunningham).) Under Apprendi and its progeny, the statutory maximum is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, 542 U.S. at p. 303, italics omitted.) Based on the high court's definition of "statutory maximum," if the sentencing judge selects a punishment which under the state penal statute requires factual findings beyond the facts encompassed in the guilty verdict, this judicial fact finding violates the defendant's jury trial right. (Cunningham, supra, 127 S.Ct.at pp. 865, 868-869.) An exception to the Apprendi rule allows a sentencing court to enhance punishment beyond the statutory maximum based on " 'the fact of a prior conviction.' " (Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 127 S.Ct. at p. 860.)

Prior to a recent amendment of section 1170, subdivision (b), the statutory maximum in California was the middle term. (Cunningham, supra, 127 S.Ct. at pp. 868, 871.)¹⁴ However, the California Supreme Court recently determined that even under the former version of the statute, the upper term is converted to the statutory maximum if the sentencing record shows that at least one aggravating circumstance was established in accordance with the Apprendi rule so as to render the defendant eligible for the upper term. (People v. Black (2007) 41 Cal.4th 799 (Black II)). In reaching this conclusion, the Black II court focused on (1) the United States Supreme Court's advisements that the key constitutional considerations are whether the state statute forbids the trial court from increasing the sentence above a certain term without judicial findings beyond the jury's verdict and thus the defendant is legally entitled to that particular term, and (2) the feature of California's sentencing scheme that provides that a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Black II, supra, at pp. 812-816.) Considering these matters, the court in Black II reasoned that when one aggravating circumstance has been established in accordance with constitutional requirements, the trial court is not forbidden from imposing the upper term, the defendant is not legally entitled to the middle term, and it follows that the upper term is the statutory maximum. (Ibid.)

14 In Cunningham, the United States Supreme Court abrogated the California Supreme Court's ruling in People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (2007) ___ U.S. ___, 127 S.Ct. 1210, that the upper term was the statutory maximum. The Cunningham court held that the statutory maximum was the middle term because under California's sentencing scheme the middle term is the presumptive term and the trial court is not permitted to select an upper term without a judicial finding of an aggravating fact that was not an element of the offense found by the jury. (Cunningham, supra, 127 S.Ct. at pp. 868, 871.) In response to Cunningham, effective March 30, 2007, the California Legislature amended section 1170, subdivision (b) to make the middle term a discretionary rather than presumptive term. (Stats. 2007, ch. 3, § 2; People v. Sandoval (2007) 41 Cal.4th 825.) Our analysis is premised on the former version of the statute.

The Black II court concluded that "imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816.) Thus, once the defendant is eligible for the upper term based on the establishment of a constitutionally permissible fact, "the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Id. at p. 813.)

2. Analysis

One of the factors cited by the trial court to justify the upper term for Pierce was his service of a prior prison term, which is a factor related to his prior conviction. In Black II, the California Supreme Court examined the scope of the prior conviction exception to the Apprendi rule and defined it as including "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Black II, supra, 41 Cal.4th at p. 819.) Illustrative of this interpretation of the prior conviction exception, the Black II court held the aggravating factors of numerous or increasingly serious prior convictions were within the prior conviction exception. The Black court explained that findings of numerousness or increasing seriousness "require consideration of only the number, dates, and offenses of the prior convictions alleged"; the relative seriousness "may be determined simply by reference to the range of punishment provided by statute for each offense"; and these types of determinations were " 'quite different from the resolution of issues submitted to a jury' " and more appropriate for a court. (Id. at pp. 819-820.)

Akin to the numerousness/increasing seriousness factors, the fact that a defendant has served a prior prison term can be conclusively determined from the records related to the prior conviction and does not require the court to make subjective factual determinations about the defendant's past criminal conduct. We conclude this factor falls within the prior conviction exception. Under the rule enunciated in Black II, because at least one constitutionally permissible aggravating factor was established for Pierce, the upper term was the statutory maximum and there was no constitutional violation regardless of the nature of additional aggravating factors cited by the trial court.

B. Discretionary Imposition of Upper Term for Pierce

Pierce asserts the trial court abused its discretion in imposing the upper term because (1) the court failed to consider the mitigating factor of his bipolar disorder, (2) the factor of cruelty or viciousness was unsupported by the record and also inapplicable to him because he was merely the get-away driver, and (3) the record showed that Lewis, not Pierce, was the leader in the offense.

"Generally, determination of the appropriate term is within the trial court's broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational [citation]." (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) There was no showing that Pierce was suffering from acute symptoms of bipolar disorder at the time of the crime so as to diminish his level of culpability. Further, neither Pierce nor his advisory counsel urged the court to consider his mental illness as a mitigating factor. The record does not support Pierce's claim that the trial court abused its discretion in failing to consider mental illness as a mitigating factor.

At trial and in their statements in the probation report, the bank employees described their terror at being robbed at gunpoint, their feelings that they were going to die, and the severe emotional trauma they continue to suffer from the robbery. Based on the victims' statements, the trial court reasonably concluded the crime was committed with a high degree of callousness. Further, even though Pierce was not inside the bank during the robbery, the court could reasonably infer that he knew his accomplices would carry out the robbery by displaying a gun in a fashion that would cause the bank employees to experience a high level of fear. Finally, based on Edwards's description of Pierce's instructions to her to enter the bank and his subsequent inquiries to her about the bank, the record supports a finding that Pierce played a leadership role in the robbery.

DISPOSITION

The judgments are affirmed.

I CONCUR: O'ROURKE, J.

CONCURRING OPINION

AARON, J.

I join in the majority opinion, with the exception of the conclusion that it was proper for Officer Martin, the prosecution's gang expert, to testify that the bank robbery in this case was committed for the benefit of the Rolling 60's Crips (RSC) gang.

Acknowledging that a gang expert may not give an actual opinion about the particular defendant's subjective knowledge or intent (Maj. Opn. at p. 32, citing People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551), the majority asserts that although Officer Martin "gave an opinion that the robbery itself was for the benefit of . . . the gang," he "did not give an opinion about the defendants' subjective knowledge or intent." The majority concludes that Officer Martin thus, "did not purport to resolve" for the jury whether the defendants had the specific intent required for the gang enhancement. However, Officer Martin's statement that the robbery in this case was committed "for the benefit of" the gang necessarily implies that the defendants harbored the specific intent to benefit the gang, and was thus improper.

In People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513, the court observed that a number of courts have held that a gang expert may testify regarding whether a crime was committed to benefit a gang. However, the Garcia court noted that the proper method by which to elicit a gang expert's opinion as to whether a crime was committed for the benefit of a gang is through hypothetical questions based on the evidence in the case. (Id. at pp. 1513-1514; see also People v. Gardeley (1996) 14 Cal.4th 605, 619, [holding it proper for prosecutor to give gang expert "a 'hypothetical' based on the facts of the assault in this case . . . by three Family Crip members, [and] ask[ing] [gang expert] whether in his expert opinion an attack as described would be "gang-related activity'"].)

Here, Officer Martin testified that the robbery in this case was committed for the benefit of the RSC gang, not that, in his opinion, a hypothetical robbery based on the facts of this case would have been committed for the benefit of the gang. Stating that an act was performed "for the benefit of" an entity implies a specific intent on the part of the actor to benefit the entity. Thus, contrary to the majority's assertion that Officer Martin "did not give an opinion about the defendants' subjective knowledge or intent," when he testified that the robbery in this case was committed "for the benefit of" the RSC gang, he clearly communicated to the jury that the defendants in this case had the specific intent to benefit the gang when they committed the robbery. This was improper and constitutes error.

However, the error was harmless, in view of the overwhelming quantity of properly admitted evidence from which the jury could have found the gang enhancement to be true. I therefore agree with the majority that the judgment should be affirmed.