Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CF0002, William Lee Evans, Judge. Affirmed as modified.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant Chadric Mark Long.
Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant Alejandro Ramirez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted defendants Alejandro Ramirez, Jr. and Chadric Mark Long of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), carrying a loaded firearm in public (§ 12031, subd. (a)(2)(A)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also convicted Ramirez of aggravated trespass (§ 602.5, subd. (b)), and found both defendants committed the offenses to benefit a criminal street gang (§ 186.22, subd. (b)(1), (d)). Defendants admitted previously suffering serious or violent felony convictions (§ 667, subd. (a)) and serving prison terms (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise specified.
Long challenges the sufficiency of the evidence to support his convictions and gang enhancements, and contends the trial court erred by denying his motion for a new trial based on his trial counsel’s failure to provide competent representation. He also argues his upper term sentence for active gang participation violated his constitutional right to a jury trial. (Cunningham v. California (2007) 549 U.S. 270 (Cunningham).) Finally, Long contends the trial court erred by imposing enhancements under both section 667, subdivision (a), and section 667.5, subdivision (b), for the same prior conviction.
Ramirez also challenges the sufficiency of the evidence to sustain his conviction for active gang participation and the gang enhancements. He contends the trial court erred by failing to instruct on the elements of the felonies comprising a pattern of gang activity, by giving a flight instruction (Judicial Council of Cal. Crim. Jury Instns. CALJIC No. 2.52), and by failing to instruct on the mental state required for aggravated trespass. He also argues we must reverse his conviction for active gang participation because it is a necessarily included offense of carrying a loaded firearm. Defendants also join in applicable arguments raised by the other. (Cal. Rules of Court, rule 8.200(a)(5).)
We conclude defendants’ contentions lack merit, except for Long’s claim the trial court erroneously imposed an additional term on one of his prior convictions. We therefore affirm the judgment as modified.
I
Factual and Procedural Background
On the afternoon of December 29, 2004, an undercover narcotics detective conducted surveillance of a residence on North Earlham Street in the El Modena area of Orange. The detective observed a blue Honda and a green Chevrolet parked side-by-side in the driveway. Ramirez and Liliana Briseno were seated in the Chevrolet. Ramirez was working on the right side of the car’s dashboard and appeared to be removing something. The detective also observed Long leave the residence wearing a dirty University of Michigan visor and join Ramirez. Based on his experience, the detective knew members the Varrio Modena Locos (VML) gang lived at the Earlham residence, and other members often stayed there. He also knew VML gang members often wore clothing with the Michigan insignia. Suspicious, the narcotics detective summoned Orange gang officers.
The men departed, Long driving the Honda and Ramirez sitting in the passenger seat of the Chevrolet driven by Briseno, who followed the Honda. The cars stopped next to each other after a few blocks. Long leaned out the Honda’s window toward the Chevrolet, which was farther from the curb. Ramirez then left the Chevrolet and entered the passenger side of the Honda.
The Honda sped off and the undercover gang officers followed in two cars on a circuitous pursuit as Long exceeded 70 miles per hour between intersections and committed numerous Vehicle Code violations. The Honda pulled into a gas station and stopped at a pump as marked patrol units arrived on the scene. Ramirez opened the door and fled, but Long remained in the car. Officers arrested Long and found a hypodermic needle on the Honda’s center console.
Ramirez, wearing a sweatshirt, ran across the front of the gas station, reached into his waistband with his right hand, pulled out a dark-colored handgun, and tossed the gun over a wall.
Officers later found the gun, a Bersa 380 semiautomatic pistol, in ivy on the other side of the wall. They also found a single round of ammunition on a walkway about five feet from the gun. The gun’s slide was locked in the rear position and two rounds of ammunition fell from the magazine when a crime scene officer picked up the weapon. The gun’s floor plate and spring were missing, but the gun was operable. The parties stipulated no fingerprints or DNA were recovered from the weapons.
Ramirez ran into a residential area and broke into a house. When the homeowner discovered him hiding in a closet about two hours later, Ramirez pulled up his sweatshirt, explained he was not armed, and claimed he was hiding from pursuing gang members. The homeowner offered to call the police, but Ramirez protested he did not want the police involved, and left through the back patio, jumping over a fence into a neighbor’s yard. Officers apprehended him a short time later coming out of his uncle’s nearby home.
Long spoke briefly with officers after they advised him of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) He claimed he met Ramirez only a few times and knew him only as “Dude.” He denied knowing Ramirez had a gun. He did not know his pursuers were police officers, assuming instead they were rival gang members or someone out to get him for past transgressions. Long’s mobile phone displayed a picture of a fox, which a gang detective opined was Long’s gang moniker. Long’s wallet contained other pictures, including one of Ramirez’s cousin Frank, who was a VML gang member, and a picture of the Michigan visor. Long had numerous tattoos on his body, including one displaying the gang’s letters, one depicting a fox, and a tattoo of a clown with a smoking gun. Long’s driver’s license listed an address in Menifee.
Officers placed Long and Ramirez in adjacent holding cells at the police station. They conversed as friends, referring to each other by their first names. Ramirez explained to an officer, “I shouldn’t have run, but I didn’t know that you were the cops.” He questioned why the officer was charging him with burglary because he “did not steal anything from in there.” One of the investigators overheard Ramirez on the phone explain “he was helping Chad [Long] put his system in his car and that he pitched a gun and hid in some guy’s house.”
Orange Detective Joel Nigro, the prosecution’s gang expert, testified the gangs in Orange are “turf[-]oriented, ” each claiming certain territory as its own. A territorial gang pursues violent criminal endeavors within its own “turf, ” thereby instilling fear in the community and deterring others from reporting them to the police. These gangs also employ violence to exclude rival gangs from encroaching on their territory, and members who resort to violence enhance their respect and stature within the gang.
Nigro explained that weapons, particularly guns, play a prominent role in the gang subculture. He defined a “gang gun” as one that is shared among gang participants and members. Gangs use guns offensively to commit crimes and instill fear, and defensively when they feel threatened by rival gangs. When threats loom, a gang member possessing a gun would be expected to share that information with his cohorts. It also would be commonly understood that a gang gun would be equally shared with other members.
Nigro described VML as a long-established Orange gang claiming the El Modena area. VML adopted the University of Michigan colors and the letter “M, ” standing for Modena, to identify itself. Nigro had investigated numerous VML crimes, and had interviewed VML gang members and members of rival gangs that posed threats to VML. Some of his criminal investigations involved the Earlham residence, known as a VML “hangout” and a “place of refuge” for its members.
Nigro defined a criminal gang as an ongoing organization of three or more individuals who share a common sign or symbol and whose primary activities encompass the crimes listed in section 186.22. According to Nigro, VML’s primary activities include assault with a deadly weapon, shooting at inhabited dwellings, robbery, kidnapping, vehicle theft, possession of stolen property, and drug sales, all crimes listed in section 186.22. Specifically, Nigro identified two VML members who committed the predicate crimes listed in section 186.22. Frank Ramirez in July 2001 pleaded guilty to possessing narcotics for sale and felon in possession of a firearm, and admitted he committed these crimes for VML’s benefit. In 2003, Jimmy Turrey pleaded guilty to carjacking, vehicle theft, drug possession, and being an active VML participant while committing these crimes.
Presented with a hypothetical question based on facts similar to the case involving Ramirez and Long, Nigro opined both individuals possessed the gun for the benefit of, and in association with their gang. Nigro also concluded the gun described in the hypothetical was a “gang gun, ” explaining, “Gang members share, they have knowledge of the guns, who has the guns.” Nigro conceded on cross-examination that whether a gun is available to other gang members depends on the facts of the particular case. Finally, Nigro also opined that the hypothetical gang member who fled the scene and broke into a nearby home did so to benefit his gang.
Ramirez testified on his own behalf. He explained numerous family members belonged to VML and therefore he was “born into it.” He admitted being an active gang member in July 2001, when he pleaded guilty to felonies, including carrying a gun and selling drugs to benefit the gang. The gang meant a lot to him, but he decided during his stint in prison it was time to grow up and leave VML.
Ramirez explained he had an ongoing drug problem, involving heroin and methamphetamine. He began using drugs and moved out of his mother’s house in mid December. Around the same time, he lost or left his landscaping job. He returned to El Modena because he had nowhere else to go and there he could find a place to sleep. At the time of the current incident, he was staying with Briseno and using drugs at the Earlham house. He denied other VML members congregated at Earlham.
On the day of the incident, Long came over so Ramirez could install a stereo in Long’s car. Ramirez removed his stereo from the Chevrolet because Briseno had to return the car to her uncle. They did not have the tools to finish the job so they planned to drive to Long’s uncle’s nearby home. He put the stereo in Long’s trunk. Because Briseno decided she did not want to go with them, both cars pulled over so Ramirez could ride with Long. He and Long noticed several cars following them and grew concerned because they thought gang members were pursuing them. They pulled into the gas station because it was a public area with cameras and Ramirez knew gang members would not commit crimes in front of witnesses. He saw the patrol cars and heard sirens when they arrived at the gas station. He ran because he had the gun in his waistband. Ramirez explained he bought the gun from his heroin dealer for protection because he had numerous enemies. His enemies included members of VML because he chose to walk away from the gang after prison. The gun had been in Briseno’s car, but he retrieved it before they left the Earlham residence.
Ramirez testified he and Long had known each other since grade school, and they started associating with VML when they were 13 or 14 years old. Long knew Ramirez was using heroin and tried to help him curtail his drug habit. Ramirez had stayed with Long’s grandmother in Garden Grove three days before he purchased the gun, but never showed Long the gun or told him he had the weapon, and no one except his dealer knew he had it. Although familiar with the concept of a gang gun, Ramirez claimed guns also could belong to individual gang members. He acknowledged VML identified with the Michigan logo, but he never had seen a gang member wear the visor. Ramirez denied Long’s nickname of Fox or Big Fox was a gang name, and denied he had ever been to Long’s residence in Menifee.
Following trial in June 2006, a jury convicted both defendants, previously convicted felons, of possessing and carrying a loaded firearm in public (§ 12021, subd. (a)(1) [felon in possession of firearm]; § 12031, subd. (a)(2)(A) [carrying loaded firearm in public]), and of actively participating in the gang (§ 186.22, subd. (a)). The jury found they committed the crimes to benefit the gang (§ 186.22, subd. (b)(1)), and separately convicted Ramirez of aggravated trespass (§ 602.5, subd. (b)).
Long admitted he previously had suffered two prior serious or violent felony convictions within the meaning of section 667, subdivision (a), and the Three Strikes law (§ 667, subd. (d); § 1170.12, subds. (b), (c)(2)(A)), and admitted previously serving two separate prison terms (§ 667.5, subd. (b)). After denying his motion for a new trial based on the ineffectiveness of his lawyer, the trial court sentenced Long to 18 years in prison: six years for active gang participation (double the upper three-year term after striking one of the Three Strikes law prior convictions), two consecutive five year terms under section 667, subdivision (a), and 2 one-year terms under section 667.5, subdivision (b). The court imposed concurrent terms and struck or stayed punishment on the other counts and enhancements.
The court sentenced Ramirez to nine years in prison: four years for active gang participation (doubling the two-year middle term under the Three Strikes law), and a consecutive five-year term under section 667, subdivision (a). The court imposed concurrent terms, and struck or stayed punishment on other counts and enhancements.
II
Discussion
Substantial Evidence Supports Defendants’ Conviction for Active Participation in a Criminal Street Gang
Both defendants challenge the sufficiency of the evidence to support their convictions for active participation in a criminal street gang. Defendants contend the prosecution failed to present substantial evidence they were active gang participants at or near the time of the alleged crimes.
Our review of this issue is limited. We review the entire record to determine whether substantial evidence supports the verdict. Substantial evidence is defined as evidence that is “‘“‘reasonable, credible, and of solid value....’”’” (People v. Elliott (2005) 37 Cal.4th 453, 466.) “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 jury’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 jury, 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.) The same standard of review applies in determining whether substantial evidence supports an enhancement. (People v. Gamez (1991) 235 Cal.App.3d 957, 977, disapproved on another point in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10 (Gardeley).) In applying this standard, we must affirm the judgment unless under “no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) Consequently, a defendant “bears an enormous burden” when challenging the sufficiency of the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
Active participation in a criminal street gang, defined in section 186.22, subdivision (a), has three elements. First, the prosecution must show active participation in a criminal street gang, “in the sense of participation that is more than nominal or passive.... The second element is ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity, ’ and the third element is that the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’” (People v. Lamas (2007) 42 Cal.4th 516, 523.)
As to the first element, “membership alone in a gang is not sufficient to satisfy the requirement of active participation.” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509 (Garcia).) Nor is it sufficient to show a defendant had been an active gang participant in the past. (Ibid.) As we explained in Garcia, section 186.22, subdivision (a), uses the present tense in describing this element, punishing any person who “actively participates” in a criminal street gang, and we noted that the Supreme Court in People v. Castenada (2000) 23 Cal.4th 743, 747, used the present tense in describing active participation as “involvement... that is more than nominal or passive.” (Italics added.) Consequently, “[a] defendant’s active participation must be shown at or reasonably near the time of the crime.” (Garcia, supra, at p. 1509.)
Defendants challenge only the sufficiency of the evidence supporting the first element, arguing the prosecution failed to show they were active VML participants in December 2004 when the crimes occurred. Reviewing the claim under the appropriate deferential standard, we must disagree.
The evidence showed both defendants had long-standing ties with VML. Ramirez had numerous police contacts documenting his VML involvement between 1993 and 2000 and in 2001, Ramirez was sentenced to state prison after he pleaded guilty to a felony and admitted he committed the crime for the benefit of VML. At trial, Ramirez testified he was an active VML participant when he entered his guilty plea in 2001 and received his sentence. Long also had numerous police contacts documenting his ties to VML, and admitted to Nigro after his arrest that he “bonded” with VML for protection and association.
Both defendants had tattoos signifying their gang involvement. Ramirez had gang-related tattoos on his arms, knees, and chest. Long had tattoos on his knees, calves, and chest. His arm bore the tattooed inscriptions “VML Orange County” and his gang moniker, “fox, ” next to a tattoo of a smoking handgun. Long also had a gang tattoo on the back of his head, readily visible because of his shaved head. Ramirez also had a shaved head, a style popular among gang members.
Most significantly, officers spotted defendants at the Earlham residence, a venue tied to VML activity, and located in the VML territory. Ramirez had lived at the Earlham residence for awhile, and according to Ramirez, he and Long met there to install a car stereo. Long prominently displayed a University of Michigan visor with the letter “M” inscribed on it, the emblem VML members adopted for their gang. Both men had gang monikers, and Long’s cell phone contained a picture of a then incarcerated VML gang member. After his arrest, Long lied about his relationship with Ramirez and would not identify him in a photo lineup.
Finally, Nigro provided his expert opinion that both defendants were active VML participants when arrested in December 2004. Nigro based his opinion on the foregoing facts and his experience investigating Orange County gangs, include VML.
Defendants argue the above evidence is insufficient as a matter of law to support their convictions, but upon closer examination, their argument merely boils down to a complaint about the inferences the jury drew from the evidence. For example, defendants complain about the lack of police documentation linking them to VML after 2000, but the jury could discount this fact based on evidence Ramirez was in prison from July 2001 until August 2004, and Orange Police Officer Craig Brown testified Long recently had been released from prison. Defendants correctly note no evidence showed when defendants embroidered their bodies with tattoos, but Long prominently featured the gang tattoo on the back of his head by shaving his scalp. In any event, the jury reasonably could place more reliance on evidence defendants met in VML territory at a residence linked to VML criminal activity. Long brazenly displayed a VML gang emblem on his visor, and Ramirez’s admission he temporarily lived at the Earlham residence belied his claim he was afraid of VML gang members because he no longer participated in their activities.
Defendants complain Nigro’s testimony was inadmissible under People v. Killebrew (2002) 103 Cal.App.4th 644, 658 (Killebrew), which held that a gang expert may not offer an opinion on the subjective knowledge and intent of a particular defendant on trial. But neither defendant objected to Nigro’s opinion both defendants were active gang participants when arrested in December 2004. Accordingly, defendants forfeited the issue for appeal. (See People v. Williams (1976) 16 Cal.3d 663, 667, fn. 4.)
Even if defendants had lodged an objection, the outcome would have been the same. It is well-established that in cases charging the substantive crime of active participation in a gang, or the gang enhancement, expert testimony regarding the “‘culture, habits, and psychology of gangs’ is generally permissible because these subjects are ‘“sufficiently beyond common experience [therefore] the opinion of an expert would assist the trier of fact.”’” (Garcia, supra, 153 Cal.App.4th at p. 1512.) The permissible breadth of this evidence includes “the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like....” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez).) Thus, a gang expert may testify about the extent of a defendant’s gang involvement because this inquiry “is not a simple matter and requires the accumulation of a wide variety of evidence over time and its evaluation by those familiar with gang arcana in light of pertinent criteria.” (People v. Valdez (1997) 58 Cal.App.4th 494, 507.) Even assuming Nigro’s opinion defendants were active gang participants should have been presented in a hypothetical question, defendants do not question the admissibility of his other testimony, which provided the basis and explanation for concluding defendants were active VML operatives. In sum, ample evidence supports the jury’s verdict on the active participation count.
Substantial Evidence Supports Long’s Conviction for Possessing a Loaded Firearm
The prosecution convicted Long of being a felon in possession of a firearm (§ 12021 (count 1)) and carrying a loaded firearm in public (§ 12031 (count 2)) based on the doctrine of constructive possession. This tenet establishes possession when the prosecution proves a defendant knowingly exercised control or the right to control the prohibited item, either directly or through another person. (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084; People v. Mejia (1999) 72 Cal.App.4th 1269, 1272 [defendant need not physically have the weapon on his person; constructive possession established where a person knowingly exercised dominion and control over an item].) Possession may be shared with others. (People v. Neese (1969) 272 Cal.App.2d 235, 245.) But mere proximity to the weapon, standing alone, is not sufficient evidence of possession. (People v. Land (1994) 30 Cal.App.4th 220, 223-224.)
Section 12021, subdivision (a)(1), provides that any “person who has been convicted of a felony... who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” Section 12031, subdivision (a)(1), provides, a “person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.” Knowledge is an element common to both crimes.
Defendant challenges the sufficiency of the evidence to support the theory of constructive possession, arguing there was no substantial evidence to support the inference he knew Ramirez possessed a firearm; therefore, it follows Long “could not have any right to control that weapon....” Long notes the officers did not see him make any furtive movements as they pursued his vehicle, and his fingerprints were not found on the weapon. Accordingly, Long concludes it is mere speculation that he knew Ramirez had a handgun tucked into his waistband. We agree Long would prevail if there was no evidence he and Ramirez were active VML gang participants. But we must, as the Attorney General points out, view the circumstances of this offense through the unique prism of the criminal street gang culture. This evidence, presented by the prosecution’s gang expert, provided the basis to establish the elements of constructive possession.
Nigro testified gang weapons, particularly guns, are tools of the trade, allowing gangs to commit crimes within their claimed territory, exclude rivals from their “turf, ” and instill fear within the community and among rival gangs. The possession and use of guns also serve to increase respect within the gang for individual members who wield these weapons to further the gang’s criminal endeavors. These illicit goals breed the gang belief and practice of the communal gun, shared among gang members for offensive and defensive purposes. Accordingly, gang members would inform their cohorts if they carried a gun when the gang plied their criminal trade or confronted a rival gang.
Nigro explained VML was a typical territorial gang that used a gang gun in the same manner as other gangs. Because Long and Ramirez were active VML participants, as opposed to nominal members, the jury reasonably could conclude they would resort to typical gang practice if one of them possessed a firearm. Contrary to the Attorney General’s assertion, however, Nigro’s testimony does not support the inference Long knew Ramirez possessed a gun at the Earlham residence or when Ramirez left Briseno and entered Long’s car. At this point, no evidence showed Long and Ramirez planned to use the gun offensively to commit a crime or defensively against a rival gang, the circumstances Nigro testified would trigger a gang member to alert a compatriot he had a gun.
The situation changed, however, when Long and Ramirez believed rival gang members were following them. Long attempted to elude his pursuers, reaching speeds over 70 miles per hour through the city. The jury reasonably could conclude this perceived threat from a rival gang would prompt Ramirez to inform Long about the gun, and both would implicitly understand Long could use the weapon. The allegiance each felt toward the other as active VML participants whose friendship dated back to grade school further supports the inference Long knew about the gun. Finally, the jury reasonably could infer Long would not have lied about knowing Ramirez if Long had been unaware of the gun.
Long argues Ramirez’s gun possession did not make this particular weapon a gang gun. The evidence certainly would have supported this conclusion, especially after Ramirez testified he did not tell Long about the firearm. But the jury rejected Ramirez’s testimony, accepting instead Nigro’s explanation of how the gang subculture developed the gang gun concept and the circumstances under which it would apply.
In a supplemental letter brief, Long argues “Nigro’s testimony with respect to the gang gun concept constituted improper opinion on the ultimate issue to be decided by the trier of fact, and was merely his view as to how this case should be decided.” In essence, Long presents a two-prong attack. First, he suggests Nigro’s testimony about communal gang guns lacked foundation to support his opinion. From this, Long concludes no substantial evidence exists to support his gun possession convictions because only the gang gun concept furnished the basis to infer Long had the requisite knowledge and control for constructive possession. Second, even if an adequate basis existed for Nigro’s general testimony about gang guns, his opinion that all gang members, when faced with a threat from a rival gang, know of and have the right to control the guns held by fellow gang members, constituted an improper opinion on either guilt or an ultimate issue of fact.
Long’s failure to object at trial on foundational grounds or that Nigro’s opinion was improper forfeits the issue on appeal. (People v. Seaton (2001) 26 Cal.4th 598, 642-643 (Seaton).) The forfeiture rule applies here because the trial court had no opportunity to consider excluding Nigro’s opinion for the reasons Long now asserts on appeal. Nor did the prosecutor have the opportunity to correct the scope of his inquiry to the expert. The jury therefore could consider Nigro’s testimony in determining Long’s guilt or innocence. (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 393, p. 484 [“Material and relevant evidence that is technically incompetent and inadmissible under the exclusionary rules, if offered and received without a proper objection or motion to strike, will be considered in support of the judgment”]; id., § 394, p. 485 [citing cases applying rule to hearsay evidence]; 7 Cal. Law Revision Com. Rep. p. 143 (1965) [statutory definition of “evidence” makes it clear that “when inadmissible hearsay or opinion testimony is admitted without objection... it constitutes evidence that may be considered by the trier of fact].) Moreover, the law is clear that a gang expert may testify on the culture and habits of criminal street gangs, including their practices and beliefs. (Hernandez, supra, 33 Cal.4th at p. 1049; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 (Olguin) [“The use of expert testimony in the area of gang sociology and psychology is well established”].) Nigro’s general testimony on the importance of guns in the gang subculture and how gangs use guns as tools to ply their criminal trade fits squarely within accepted parameters and therefore constitutes substantial evidence upon which the jury could rely.
Nor did Nigro’s testimony amount to an improper opinion on the issue of guilt. Nigro’s testimony about gang guns addressed the elements of knowledge and right to control for constructive possession, but he did not express an opinion on Long’s intent to possess the firearm, a necessary element for both gun possession charges. Nigro’s testimony therefore was not an opinion on Long’s guilt because the prosecution still had to prove Long also intended to possess the gun. (Valdez, supra, 58 Cal.App.4th at p. 509 [expert’s opinion the defendant acted for the benefit of the gang “was not tantamount to an opinion of guilt or, in this case, that the enhancement allegation was true, for there were other elements to the allegation that had to be proved”].)
To prove Long was a felon in possession of a loaded firearm under sections 12021 and 12031, the prosecution must prove he knowingly possessed the gun and had the general intent to possess it. (People v. Spirlin (2000) 81 Cal.App.4th 119, 130 [possession of a firearm by a felon is a general intent crime; “[p]ossession may be either actual or constructive as long it is intentional”]; People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [“Wrongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm”].) Without a showing of intent, a person would be guilty of the offense even if he or she innocently possessed the prohibited item. For example, absent the intent requirement, Long would violate sections 12021 and 12031 the instant he learned Ramirez possessed the firearm and knew he had the right to control it, even if he did not intend to possess the weapon. That is not the law. As Jeffers explains, “knowledge plus physical possession may ordinarily demonstrate an intent to exercise dominion and control, but knowledge does not conclusively demonstrate such intent as a matter of law. Otherwise, a felon would be strictly liable for the crime immediately upon finding a firearm, even if found under innocent circumstances.” (Jeffers, at p. 922.) Long, however, does not challenge the sufficiency of the evidence on the element of general intent.
Nigro did offer an opinion on ultimate factual issues, however. On Long’s gun possession charges, Nigro testified that gang members would know who among them has a firearm because all of them would have the right to share the weapon when threatened by rival gangs. Nigro also testified on the ultimate factual issues that Long was an active VML participant when arrested, and he jointly possessed the firearm for the benefit of or in association with his gang.
Expert testimony on ultimate factual issues is not necessarily inadmissible. (Evid. Code, § 805; People v. Wilson (1944) 25 Cal.2d 341, 349.) As the Supreme Court in Wilson observed, “There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. ‘We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved....’” (Wilson, at p. 349.) Where the subject matter is beyond the common experience of most jurors, an expert may offer opinions on ultimate issues to assist the jury in reaching a decision. (People v. Torres (1995) 33 Cal.App.4th 37, 47; Olguin, supra, 31 Cal.App.4th at p. 1371.) As Torres notes, “There are some crimes a jury could not determine had occurred without the assistance of expert opinion as to an element of the crime.” (Torres, at p. 47, original italics.) Gang crimes generally fall into this category.
Thus, in People v. Ward (2005) 36 Cal.4th 186 (Ward), the prosecutor posed “fact-specific hypothetical questions to elicit testimony from these experts that a gang member going into rival gang territory - like defendant - would do so as a challenge and would protect himself with a weapon.” (Id. at p. 209.) The Supreme Court rejected the defendant’s argument “the specificity of the hypothetical questions converted the answers by the experts into improper opinions on [the defendant’s] state of mind and intent at the time of the shooting.” (Ibid.) Rather, the court concluded the expert opinions fell within the gang culture and habit evidence approved in Gardeley, explaining, “The substance of the experts’ testimony, as given through their responses to hypothetical questions, related to defendant’s motivation for entering rival gang territory and his likely reaction to language or actions he perceived as gang challenges.” (Ward, at p. 210.) Similarly, Nigro’s opinion that a gang member would know of and share a firearm held by another gang member when confronted with a perceived threat from a rival gang merely described a “likely reaction” based on gang psychology, practices, and beliefs, and therefore is “not tantamount to expressing an opinion as to defendant’s guilt.” (Ibid.)
Nigro also could offer an opinion on the ultimate factual issue of whether defendants acted for the benefit of their gang. (Valdez, supra, 58 Cal.App.4th at p. 507 [trial court did not abuse its discretion in permitting expert opinion on “ultimate factual issue” of whether defendant acted for gang’s benefit].) Moreover, as noted above, Nigro could offer an opinion on whether defendants were active VML participants when arrested. (Ibid.) In Garcia, supra, 153 Cal.App.4th at pp. 1513-1514, we concluded a gang expert could offer an opinion that the facts in a hypothetical question showed the crime was committed to benefit a criminal street gang even though this covered an ultimate issue.
In sum, Nigro’s testimony about the gang gun concept was properly admitted. Based on this testimony, we cannot say no rational jury could have inferred from this evidence Long knew about Ramirez’s firearm and had the right to possess it. (People v. Romero (2008) 44 Cal.4th 386, 399 [standard of review for evidentiary sufficiency is whether “‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’”].) Substantial evidence therefore supports Long’s convictions for felon in possession of a loaded firearm.
Substantial Evidence Supports the Gang Enhancements
Defendants challenge the sufficiency of the evidence to support the gang enhancements associated with the gun possession charges (counts 1 to 4). Ramirez also contends no substantial evidence supports the gang enhancement on his aggravated trespass conviction (count 6). They contend the prosecution failed to present substantial evidence VML constituted a criminal street gang, as defined under the gang statute. Defendants also contend the prosecution failed to show they specifically intended to promote, further or assist in any criminal conduct by gang members or that they committed the charged crimes for the benefit of, at the direction of, or in association with a criminal street gang. We do not find any of these arguments persuasive.
Criminal Street Gang
Section 186.22, subdivision (b)(1), imposes additional punishment if the crime was “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....” “To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran); § 186.22, subd. (f).)
Defendants do not contest that VML was an ongoing association of three or more individuals who shared a common name and identifying emblem, earmarks of a typical criminal street gang. But they contend no substantial evidence supports the gang expert’s opinion VML’s primary activities included several of the crimes listed in section 186.22, subdivision (e), or that VML members engaged in a pattern of criminal gang activity. Specifically, they complain Nigro’s testimony, which furnished the evidentiary basis supporting the primary activity and pattern of criminal conduct elements, lacked an adequate foundation because the prosecution failed to show Nigro based his opinion on reliable sources.
The short answer to this argument is that defendants may not complain Nigro’s opinion lacked an adequate foundation because they failed to object on this ground in the trial court. Simply put, the issue is forfeited. (Seaton, supra, 26 Cal.4th at pp. 642-643; 3 Witkin, Cal. Evidence, supra, Presentation at Trial, § 393, p. 484 [“Material and relevant evidence that is technically incompetent and inadmissible under the exclusionary rules, if offered and received without a proper objection or motion to strike, will be considered in support of the judgment”]; id., § 394, p. 485 [citing cases applying rule to hearsay evidence]; 7 Cal. Law Revision Com. Rep., supra, p. 143 [statutory definition of “evidence” makes it clear that “when inadmissible hearsay or opinion testimony is admitted without objection... it constitutes evidence that may be considered by the trier of fact].) Nevertheless, we consider the merits of defendants’ arguments to forestall a later habeas claim that the failure to object constituted ineffective assistance of counsel.
Primary Activities
Nigro testified VML’s primary activities included assault with a deadly weapon, shooting at inhabited dwellings, robbery, extortion, kidnapping, vehicle theft, and selling narcotics. To support his opinion, he described his years of training and experience, which included numerous interviews of gang members, including members of VML, criminal investigations of numerous gang crimes, discussions with other gang investigators and police officers, review of police reports on gang activity, and interviews with gang crime victims. Nigro testified he had investigated VML crimes, some of which involved the Earlham residence. Nigro also identified several specific predicate acts committed by VML gang members Frank Ramirez and Jimmy Turrey. Ramirez pleaded guilty to possession of narcotics for sale and felon in possession of a firearm, and admitted he did so to benefit VML. Turrey pleaded guilty to carjacking and vehicle theft to benefit VML.
Defendants’ foundational attack on Nigro’s testimony is similar to those rejected by our Supreme Court in Gardeley and People v. Gonzalez (2006) 38 Cal.4th 932 (Gonzalez). In Gardeley, the gang expert based his opinion on interviews with the defendant and other members of the defendant’s gang, and on “his personal investigations of hundreds of crimes committed by gang members, ” including discussions with investigators from his own police department and other law enforcement agencies. (Gardeley, supra, 14 Cal.4th at p. 620.) The Supreme Court concluded this provided an adequate basis for the expert’s opinion that the primary activities of the defendant’s gang included the prohibited offenses listed in section 186.22, subdivision (e). In Gonzalez, the prosecution’s gang expert conceded his opinion rested in part on potentially inaccurate hearsay statements he had “‘received in the street.’” (Gonzalez, supra, 38 Cal.4th at p. 947.) The court rejected a claim the expert based his opinion on unreliable hearsay, explaining, “A gang expert’s overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable.” (Id. at p. 949.)
The foundation for the expert’s opinion in Gardeley is substantially similar to the basis Nigro provided for his opinion. And Nigro, like the expert in Gonzalez, properly based his opinion on his overall experience investigating criminal gangs, including VML. Moreover, Nigro’s testimony that VML gang members Ramirez and Turrey committed several predicate offenses by itself provided substantial evidence on the primary activities element necessary to find VML constituted a criminal street gang. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith) [evidence the group’s members committed predicate offenses by itself may be sufficient proof of gang’s primary activities].) The jury also could consider Ramirez’s admission he possessed drugs for sale and possessed a gun to benefit VML in July 2001, and also could consider the crimes that defendants committed in the present case. Substantial evidence therefore supports the jury’s implicit determination VML’s primary activities included several of the prohibited offenses listed in the gang statute.
Pattern of Criminal Gang Activity
Defendants complain that Nigro’s testimony concerning the predicate offenses Ramirez and Turrey committed failed to show a pattern of criminal gang activity, demonstrating only the “occasional commission of specified crimes by two specified VML members.” According to defendants, under Sengpadychith, supra, 26 Cal.4th at page 324, the prosecution must prove the group’s members “consistently and repeatedly” committed the criminal activity listed in the gang statute. Defendants misunderstand what is necessary to prove a pattern of criminal gang activity. (Original italics.)
Section 186.22, subdivision (e), defines a pattern of criminal gang activity as “the commission, of attempted commission of, ... or solicitation of, ... two or more” enumerated predicate offenses “committed on separate occasions, or by two or more persons.” (§ 186, subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 9 (Loeun).) Thus, two or more predicate offenses establish the requisite pattern if committed on separate occasions or by two or more persons on the same occasion. (Id. at pp. 9-10.) The jury may consider the charged crime as a predicate offense. (Gardeley, supra, 14 Cal.4th at p. 625.) Here, it is clear the prosecution satisfied the requirement of two or more predicate offenses.
Defendants’ reliance on Sengpadychith is misplaced. There, the court explained, “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.” (Sengpadychith, supra, 26 Cal.4th at p. 323.) The court observed that “proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Id. at p. 324.) It is evident the court’s comments pertain only to the primary activities component necessary to establish a criminal street gang under section 186.22, subdivision (f). As noted above, a pattern of criminal gang activity is separately defined in subdivision (e), and the prosecution produced ample evidence establishing the necessary statutory criteria.
Crime Committed for the Benefit of, at the Direction of, or in Association with Any Criminal Street Gang
To establish the gang enhancement under section 186.22, subdivision (b)(1), the prosecution must prove the following elements: (1) a defendant committed a felony offense for the benefit of, at the direction of, or in association with any criminal street gang, and (2) the defendant acted with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1).) The enhancement applies only if the felony offense is “‘gang related.’” (Gardeley, supra, 14 Cal.4th at p. 622; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 (Frank S.) [“‘[t]he crime itself must have some connection with the activities of a gang’”].) The prosecution need not establish all three factors (benefit, direction, association) to prove the first element; proof of any one is sufficient. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1332; see also Loeun, supra, 17 Cal.4th at p. 9 [use of disjunctive “or’ indicates legislative intent to designate alternative ways to satisfy statutory requirements].) Nor must the prosecution prove a defendant harbored the specific intent to benefit the gang. (People v. Leon (2008) 161 Cal.App.4th 149, 163.)
Defendants argue the prosecution failed to present substantial evidence on either element of the enhancement, asserting “[t]he major weakness in the prosecution case was Nigro’s amorphous and vague explanation of how the charged offenses benefitted” the gang. Defendants in essence base their argument on the premise Nigro’s opinion lacked supporting evidence connecting defendants’ gun possession to a gang activity or purpose. Defendants correctly note that a gang expert’s testimony alone is insufficient to support a finding the crime was committed for the benefit of a gang. (People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (Ochoa).) Our review of the record, however, convinces us there was an adequate evidentiary basis to support Nigro’s testimony.
Nigro explained VML was a territorial gang, focused on controlling a specified area through fear and intimidation, which allowed it to commit crimes without interference. VML’s criminal endeavors included assault with a deadly weapon, shooting at inhabited dwellings, robbery, extortion, kidnapping, vehicle theft and drug sales, crimes that often involve the use of a gun. Nigro explained the importance of guns to gangs, which were used offensively to commit crimes and defensively as protection against rival gangs. Gangs therefore viewed guns as necessary tools to achieve their objectives. The use of violence enhanced a gang’s power and prestige by spreading fear throughout the community, and from the preverse and distorted view of gangs, violence also brought increased respect to individual members. Nigro’s testimony fits squarely within the parameters of permissible expert testimony on gang subculture, including its practices and beliefs. (See Ward, supra, 36 Cal.4th at p. 210 [expert testimony on defendant’s motivation and likely reaction to perceived gang challenges]; Killebrew, supra, 103 Cal.App.4th at p. 657 [“whether and how a crime was committed to benefit or promote a gang” is proper subject for gang expert].)
Nigro’s opinion that defendants’ gun possession benefited VML was based on evidence before the jury, including facts showing defendants were active VML gang participants. Nigro noted Ramirez and Long, wearing a gang emblem, drove through VML territory carrying a loaded firearm after leaving a residence connected to past VML crimes. The evidence also showed defendants believed rival gang members were pursuing them for a possible confrontation. Based on these facts, coupled with Nigro’s testimony on gang culture, practices and beliefs, the jury reasonably could infer defendants possessed the gun for VML’s benefit because it could be used for protection or to launch a counter assault. The jury also could conclude Ramirez’s efforts to avoid arrest by committing an aggravated trespass was for the benefit of his gang. As Nigro explained, successfully evading arrest would enhance the stature of both VML and Ramirez and allow him to continue his active participation in gang activities. Defendants presented substantial evidence showing these crimes were committed for personal reasons and were not gang related, but the jury rejected their evidence, and based on the evidence cited above, we cannot say the jury based their gang enhancement finding on inferences lacking evidentiary support.
The Attorney General also argues the jury also could infer defendants, as active gang participants, were more likely to commit or help other VML members commit the crimes Nigro identified as VML’s primary activities, such as robbery, shooting at inhabited dwellings, and assault with a deadly weapon. Nigro testified guns facilitated the commission of these offenses. The jury therefore reasonably could conclude that defendants, as active VML gang participants, as opposed to nominal members, belonging to a gang whose primary activities include crimes involving guns, would more likely possess a firearm to benefit their gang as they drove through territory VML claimed. We need not address the point because, at the very least, defendants’ joint firearm possession offered a means of protection against their pursuers, who they assumed were gang rivals, and therefore they held the gun for their gang’s benefit.
Moreover, the enhancement applies if the prosecution shows a defendant committed a crime “in association with any criminal street gang.” (§ 186.22, subd. (b)(1).) Here, defendants jointly possessed a loaded firearm and actively participated in the same gang. This constitutes an independent basis to support the jury’s finding. (Martinez, supra, 158 Cal.App.4th at p. 1332; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [“the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members”].) Thus, substantial evidence supports this element of the enhancement.
Specific Intent to Promote, Further, or Assist in Any Criminal Conduct by Gang Members
To secure a true finding on the enhancement, the prosecution also must prove defendants harbored the specific intent to promote, further, or assist criminal conduct by gang members. Commission of a crime in concert with known gang members constitutes substantial evidence that a defendant acted with the requisite specific intent. (Leon, supra, 161 Cal.App.4th at p. 162; Garcia, supra, 153 Cal.App.4th at pp. 1511-1512 [sufficient evidence supported gang enhancement on gun possession charge where defendant admitted he received the gun from another gang member for the defendant’s protection]; People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Here, Ramirez does not challenge the evidence supporting his convictions, and we have determined substantial evidence supported the inference Long constructively possessed the firearm held by Ramirez. As active participants in the same gang, defendants undoubtedly knew of the other’s gang status. The jury therefore reasonably could infer defendants acted with the necessary specific intent.
Resisting this conclusion, defendants assert we are bound by the decisions in Frank S. and People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon). In Frank S., a police officer detained a minor for failing to stop at a red traffic light while riding a bicycle. The officer found a concealed knife on the minor, who explained he carried the knife for protection against the “Southerners, ” a local gang. The minor later admitted he was affiliated with a rival gang. The prosecution’s gang expert testified the minor’s possession of the knife benefitted his gang because members would use the knife for protection or to assault rival gangs. The appellate court reversed the true finding on the enhancement, explaining the prosecution presented no evidence to support the expert’s general opinion regarding gangs and her opinion the defendant met the criteria to apply the enhancement. The court explained, “The prosecution did not present any evidence that the minor was in a gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.” (Frank S., supra, 141 Cal.App.4th at p. 1199.) The court emphasized the evidence showed no more than the minor had affiliated with the gang, and “membership alone does not prove a specific intent to use the knife to promote, further, or assist in criminal conduct by gang members.” (Ibid.) The court concluded no substantial evidence supported the expert’s opinion the minor acted with the requisite specific intent. (Ibid.)
Frank S. is readily distinguishable. Unlike the expert in Frank S., Nigro’s extensive experience investigating gangs, including VML, provided the basis to explain how gangs use guns to further their criminal objectives. In VML’s case, their primary crimes, such as assault with a deadly weapon and shooting at inhabited dwellings, directly depended on the use of these weapons. In contrast to the minor in Frank S., who acted alone and was not in gang territory, defendants drove through an area their gang claimed and shared a firearm held for VML’s benefit. Their active participation in VML stands in contrast to the minor’s status of an affiliate in Frank S., and thereforestrengthens the inference they held the firearm with the specific intent to promote, further or assist the criminal conduct of gang members. In Frank S., the prosecution’s gang expert failed to present evidence connecting the minor’s possession of the knife to criminal conduct by his gang members, such as evidence the minor’ gang used knives to commit certain offenses. The remaining evidence showed only that the minor, an affiliate of a gang, acted alone and was not in gang territory. This simply did not support the expert’s unsubstantiated and speculative opinion. These circumstances bear no resemblance to the present case.
In Ramon, a deputy sheriff stopped defendant and his passenger, both members of the same gang, while driving a stolen car through territory the gang claimed. The deputy found a loaded unregistered firearm under the driver’s seat. A jury convicted the defendant of receiving stolen property, gun possession and found the gang enhancement to be true. At trial, the prosecution’s gang expert identified the primary activities of the defendant’s gang as narcotics sales, theft, extortion, burglaries, robberies, and car theft. Relying on evidence the defendant and his passenger belonged to the same gang, and that officers apprehended them in territory their gang claimed, the expert concluded the defendant acted with the requisite intent for the gang enhancement because, according to the appellate court, “the gun and the stolen vehicle could be used to facilitate the commission of a crime, and the [defendant’s gang] commit crimes, and [therefore] the two must have been acting on behalf of the [gang].” (Ramon, supra, 175 Cal.App.4th at p. 849.) The appellate court overturned the true finding on the enhancement explaining, “There were no facts from which the expert could discern whether [the defendant and his passenger] were acting on their own behalf the night they were arrested or were acting on behalf of [their gang].” (Id. at p. 851.)
Initially, it appears the facts in Ramon are similar to defendants’ case. In both cases, two gang members drove through their gang’s claimed territory with a loaded gun in the vehicle. The similarities end there, however. The expert in Ramon relied primarily on the fact the defendant and his passenger belonged to the same gang and drove the stolen car through gang territory. From these facts, the expert surmised the gun and stolen vehicle “could” facilitate the commission of the gang’s primary crimes, none of which involved receiving stolen property or possessing firearms. Inexplicably, the possibility the defendant could have intended to promote a crime by gang members led the expert to conclude the defendant did in fact specifically intend to promote, further, or assist criminal conduct by gang members.
Nigro, in contrast, never offered an opinion on whether defendants entertained the necessary specific intent. Rather, Nigro’s testimony, as discussed above, provided substantial evidence connecting defendants’ crimes to their gang’s primary crimes. True, possession of loaded firearms was not listed as a primary VML activity, but the crimes VML specialized in, like shooting at inhabited dwellings or assaults with deadly weapons, could not be committed without employing firearms, and Nigro fully explained their importance and function in the gang subculture. Substantial evidence also supports the conclusion defendants were long-standing and involved VML participants. In contrast to affiliates or nominal members, the jury could infer defendants, as active participants, and in their own territory, were more likely to possess the loaded firearm with the specific intention of promoting or furthering the criminal conduct of each other or other VML gang members. Ramon, therefore, does not support defendants’ contention no substantial evidence supported the enhancement.
We agree with the observations of Ochoa, supra, 179 Cal.App.4th 650, that the evidence summarized in Ramon supports the true finding on the enhancement. As Ochoa points out, the defendant in Ramon acted in association with his gang when he drove a stolen vehicle with a fellow gang member as a passenger. (Ochoa, at p. 661, fn. 7.) The defendant’s possession of the stolen vehicle also established his “specific intent to promote, further, or assist criminal conduct by gang member[s] (himself and perhaps his passenger).” (Id. at p. 661, fn. 6, original italics.)
Finally, defendants rely on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, which interpreted the gang enhancement statute to require the defendant to specifically intend to further criminal gang activity other than the charged offense. (Id. at p. 1103 [“there is no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime”].)
We disagree with Garcia’s interpretation of section 186.22, subdivision (b)(1), and decline to follow it. (People v. Burnett (2003) 110 Cal.App.4th 868, 882 [intermediate federal appellate decisions are not binding on matters involving state law].) We agree with People v. Romero (2006) 140 Cal.App.4th 15, 19, which also rejected Garcia’s reasoning, explaining, “‘By its plain language, the statute requires a showing of specific intent to promote, further, or assist in “any criminal conduct by gang members, ” rather than other criminal conduct.’” (See also People v. Hill (2006) 142 Cal.App.4th 770, 774, original italics.)
Defendants also rely on United States v. Garcia (1998) 151 F.3d 1243 and Mitchell v. Pruntz (1997) 107 F.3d 1337, overruled on another ground in Santamaria v. Horsley (9th Cir. 1998) 133 F.3d 1242, 1248, but these cases did not deal with the gang enhancement statute and therefore lend no support to defendants’ arguments.
The Trial Court Did Not Err by Failing to Instruct the Jury on the Elements of the Predicate Felonies
Defendants argue the trial court erred by failing to instruct the jury on the elements of the predicate felonies that gang expert Nigro asserted were the primary activities of the gang. The court provided CALJIC Nos. 6.50 and 17.24.2, which told the jury that to constitute a “pattern of criminal gang activity” gang members must have been convicted of “two or more of the following crimes, namely, Carjacking, Vehicle Theft, Narcotics Sales & Illegal Firearms Possessions.”
The definition of “criminal street gang” requires a finding its “members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) The phrase “‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [enumerated] offenses, provided 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).)
Thus, the prosecution may prove section 186.22 predicate offenses by showing gang members had been convicted of the requisite offenses or proof of the underlying conduct. (Duran, supra, 97 Cal.App.4th at p. 1461, fn. 5.) Here, the prosecution established the “pattern of gang activity” when it introduced the convictions of gang members Frank Ramirez and Jimmy Turrey for crimes that are among the listed offenses in section 186.22, subdivision (e). The statute does not provide for the jury to evaluate the underlying facts supporting the convictions. Thus, where there is competent evidence of two convictions of gang members for qualifying offenses, the jury may find the requisite pattern without any consideration of the constituent elements of the predicate offenses. The trial court did not err.
In any event, any conceivable error was harmless beyond a reasonable doubt. Here, the trial court instructed the jury that to constitute a “pattern of criminal gang activity” the prosecution must show gang members suffered convictions for “two or more of the following crimes, ” including “Illegal Firearms Possession.” The trial court instructed the jury on the elements and the jury found defendant Ramirez guilty of two predicate offenses, possession of a firearm by a felon (§ 12021) and carrying a loaded firearm (§ 12031). (§ 186.22, subd. (e)(31), (33)). The court instructed the jury that the conduct necessary to establish a pattern of criminal activity included the current offense if all elements were otherwise satisfied. The jury’s guilty verdict on the charged offenses (including active gang participation) was tantamount to a finding of two predicate offenses by gang members (Ramirez) and established a pattern of criminal gang activity.
Trial Court Did Not Err by Instructing the Jury on Flight (CALJIC No. 2.52)
Ramirez contends the trial court erred when it instructed the jury on flight. The instruction provided: “The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.” (CALJIC No. 2.52.) The instruction is required in “any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt....” (§ 1127c.)
Ramirez asserts “the flight instruction could have had no effect other than to confuse the jurors” and that “there was no reason for the defendants to know the pursuers were law enforcement officers... [and] therefore no logical basis to impute ‘guilt’ to th[at] flight.”
A flight instruction is proper when the circumstances of defendant’s departure from the crime scene logically permits an inference that his movement was motivated by guilty knowledge. (People v. Turner (1990) 50 Cal.3d 668, 694; see also People v. Abilez (2007) 41 Cal.4th 472, 521-522.) Defendant acknowledges the flight instruction was “appropriate to give regarding [his] running from the police at the gas station” and his flight from the house. But he complains the instruction “was hardly necessary given his explanation that he fled from the police because he had a loaded gun” and the trial court’s failure to limit the instruction to defendants efforts to evade the pursuing undercover surveillance team misled the jury. Given the evidence of flight, the court did not err in providing a standard flight instruction. Defendant took no action to limit the instruction to omit reference to the vehicle chase and thus forfeited a claim of error on this basis. (People v. Farley (1996) 45 Cal.App.4th 1697, 1711.)
We also note the instruction did not apply unless the jury found Ramirez’s conduct constituted “flight.” The instruction cautioned the jury that flight, “if proved, ” permitted only an inference of guilt, and permitted the jury to attach whatever weight it deemed appropriate to the evidence. Even if the jury found flight, CALJIC No. 2.52 cautioned the jury it could not infer guilt from flight alone. We discern no error.
Trial Court Did Not Prejudicially Err by Failing to Define “Willfully” When Instructing the Jury on Trespass
Ramirez contends we must reverse his aggravated trespass conviction (§§ 602.5, subd. (b), 186.22, subd. (d) (count 6)) because the trial court did not define the mental state of willfulness required to commit the offense. We disagree.
Section 602.5, subdivision (a), provides, “Every person other than a public officer or an employee acting within the course and scope of his employment in performance of a duty imposed by law, who enters or remains in any noncommercial dwelling house, apartment, or other residential place without consent of the owner... is guilty of misdemeanor.” Subdivision (b) provides that a person “who enters or remains” in the dwelling “while a resident, or another person authorized to be in the dwelling, is present at any time during the course of the incident is guilty of aggravated trespass....”
The trial court instructed the jury per CALJIC No. 16.350, as follows: “Defendant Ramirez is accused in Count 6 of having violated § 602.5, subd. (a) of the Penal Code, a misdemeanor. [¶] Every person who enters or remains in any noncommercial dwelling house [etc.] without the consent of the owner or his agent is guilty of a violation of... § 602.5, subdivision (a), a misdemeanor. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person willfully entered or remained in a noncommercial dwelling house belonging to another; and [¶] 2. That person entered or remained without the consent of the owner....”
Unlike the general trespass statute (§ 602), aggravated trespass (§ 602.5) does not expressly contain a willfulness element. Assuming the mental state of willfulness is an element of section 602.5, the failure to define that term for the jury did not constitute error. “The word ‘willfully, ’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” (§ 7.) The trial court has no sua sponte duty to define ordinary words or commonly understood phrases because jurors are presumed to understand them. (People v. Rodriguez (2002) 28 Cal.4th 543, 546-547.) The word “willfully” falls into this category. (People v. Brucker (1983) 148 Cal.App.3d 230, 239.) In any event, any conceivable error in failing to define the term is harmless beyond a reasonable doubt. Overwhelming and uncontested evidence demonstrated that defendant purposefully and willingly entered a dwelling without consent of the homeowner.
The Failure to Instruct on Aggravated Trespass Constituted Harmless Error
Ramirez contends we must reduce his aggravated trespass conviction (§ 602.5, subd. (b)) to simple trespass (§ 602.5, subd. (a)) because the trial court’s jury instructions defined simple, not aggravated trespass.
The Attorney General concedes the trial court erred by failing to instruct the jury to determine whether a “resident, or another person authorized to be in the dwelling, is present at any time during the course of the incident.” (§ 602.5, subd. (b).) The presence of an authorized person transforms simple trespass into aggravated trespass.
Failure to instruct on an element of the offense does not require reversal per se, however. (People v. Flood (1998) 18 Cal.4th 470, 502-503.) The error is harmless if it did not contribute to the verdict, which occurs when the evidence of guilt is overwhelming or not contradicted. (Ibid.)
Based on the clause “any time during the course of the incident, ” section 602.5, subdivision (b), is violated if a resident returns home while the defendant is trespassing, even where the defendant immediately departs and does not remain on the premises. (See CALCRIM No. 2933 [jury must decide whether resident was present at some time while the defendant was trespassing].) Here, undisputed evidence demonstrated Ramirez broke into the house without consent and hid in a closet until the owner discovered him. The evidence Ramirez committed an aggravated trespass is clear, rendering the error harmless.
Defendant’s Conviction for Active Gang Participation Is Not a Lesser Included Offense of Carrying a Loaded Firearm in Public
Finally, defendants contend we must reverse their convictions for active gang participation (§ 186.22, subd. (a) (count 5)) because it is a lesser included offense of their convictions for carrying a loaded firearm in public by a previously convicted felon (§ 12031, subd. (a)(1), (2)(A) (count 4).) We disagree.
Defendants’ argument hinges on viewing their conviction for carrying a loaded firearm in conjunction with the true finding on the gang enhancement. Because they possessed the firearm for their gang’s benefit with the specific intent to promote, further or assist in criminal conduct by gang members, defendants reason this conduct includes the elements of street terrorism or active participation. This argument quickly runs aground because “enhancement allegations are not to be considered in determining lesser included offenses.” (People v. Toro (1989) 47 Cal.3d 966, 972, disapproved on another point in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.)
Even if we accept the premise of defendants’ argument and consider the gang enhancement elements, “the statutory elements of the criminal street gang crime and the criminal street gang enhancement are disparate.” (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1095.) As Ybarra points out, one may act for the benefit of a gang without actively participating in that gang. Consequently, the statutory elements of the purported greater offense, carrying a loaded firearm for the gang’s benefit, do not include all the statutory elements of street terrorism defined in section 186.22, subdivision (a). Consequently, defendants fail to show active participation is a lesser included offense to carrying a loaded firearm as enhanced by the gang enhancement. (Id. at pp. 1095-1096.)
The Trial Court Did Not Err in Denying Long’s Motion for a New Trial
Long filed a new trial motion alleging his trial counsel’s performance violated his Sixth Amendment right to the effective assistance of counsel. Specifically, Long complained his trial attorney rendered incompetent representation when (1) he failed to call a gang expert to refute Nigro’s “gang gun” testimony; (2) failed to object to Nigro’s description of Long’s tattoo; and (3) failed to call Long’s uncle, Darrell Poncey, to the stand. The trial court denied the motion after conducting an extensive hearing on Long’s claims. Long urges us to overturn the trial court’s decision, but we see no basis to do so.
At the hearing on Long’s new trial motion, Long presented the testimony of James Hernandez, a criminal justice professor at California State University Sacramento. Hernandez taught courses on street gangs and had testified as an expert on Northern California Hispanic gangs in numerous criminal cases. Hernandez rejected Nigro’s testimony on the communal nature of gang guns, explaining that gang members normally would not share their guns with other members because of the expense and effort in obtaining them. Hernandez disagreed with Nigro’s interpretation of Long’s tattoo of a gun, characterizing it as a generic tattoo worn by young adults that did not indicate gang activity. Hernandez did not believe the evidence showed Long was an active VML participant in December 2004 or that he was involved in gang activity with Ramirez.
Poncey, a retired Orange County Deputy Sheriff, testified that he informed Michael Molfetta, Long’s trial attorney, that Long lived and worked outside VML territory. Poncey lived one-half mile from the Earlham residence, had the tools to install a stereo and Long had Poncey’s permission to use the tools. Molfetta decided not call Poncey after asking him if he knew Long on the day of his arrest lived in Anaheim with his grandmother, and not in Menifee.
Molfetta, a criminal defense lawyer and former prosecutor with over 250 jury trials, testified he believed calling a gang expert would highlight Long’s gang affiliation and lend credence to the prosecution’s claim the weapon Ramirez held was a gang gun shared with Long. Molfetta explained he did not want to turn the trial into a “gang case, ” and instead chose to emphasize the evidence showing Long was no longer an active VML participant. Molfetta’s strategy included a vigorous cross-examination of Nigro and an attack on his testimony, which he felt the jury would view as “overstated.” Molfetta decided not to call Poncey because if Poncey testified Long lived in Anaheim, it would place Long closer to VML territory and undermine the evidence Long lived in Menifee far from VML activities. Molfetta also was concerned the court would view Poncey’s testimony as character evidence and allow the prosecution to introduce Long’s prior convictions.
David Haigh, a criminal defense attorney with over 30 years of experience, testified Long received incompetent representation at trial. Haigh faulted Molfetta for failing to raise a Killebrew objection to Nigro’s testimony that guns are considered communal property in a gang, and that each member would know of and have the right to share a fellow gang member’s gun. Haigh criticized Molfetta’s failure to call an expert witness on gangs to refute Nigro’s testimony on gang guns. He also faulted Molfetta for failing to object to Nigro’s testimony concerning Long’s tattoo of a gun, and failing to call Poncey as a witness to show Long was driving to Poncey’s residence rather than embarking on criminal gang activity.
On appeal, Long does not reassert Haigh’s claim Molfetta’s failure to object under Killebrew to Nigro’s testimony about gang guns constituted ineffective assistance. We recognize Long may pursue the issue in a habeas proceeding, especially after the recent decision of People v. Vang (June 7, 2010, D054343) ___ Cal.App.4th ___ [2010 D.A.R. 8400]. There, the appellate court held a “prosecutor may not circumvent [the Killebrew] rule by asking the expert a hypothetical question that thinly disguises the defendants’ identity.” (Id. at p. 8402.)
The trial court denied Long’s new trial motion, finding Molfetta provided a reasonable explanation for not calling a gang expert, and choosing instead to focus on evidence Long no longer participated in VML activities. The court found Molfetta acted reasonably in declining to call Poncey because of the risk his testimony would open the door to admission of Long’s prior convictions, and did not fault Molfetta for not objecting to Nigro’s testimony about Long’s tattoo.
To establish a claim of ineffective assistance of counsel, Long must show his trial attorney’s representation fell below an objective standard of reasonableness and that he suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Prejudice is shown only if there is a reasonable probability of a more favorable result, defined as a probability sufficient to undermine confidence in the outcome. (In re Clark (1993) 5 Cal.4th 750, 766.) On appeal, we presume counsel acted competently unless the record affirmatively excludes a rational basis for the attorney’s tactical choices. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.) Judicial scrutiny is therefore highly deferential, and we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances under which counsel acted, and to evaluate the conduct from counsel’s perspective at the time. (Strickland, at pp. 689-690.)
In reviewing the denial of a new trial motion based on inadequate assistance of counsel, we defer to the trial court’s express or implied factual findings if supported by substantial evidence, but independently review whether trial counsel’s performance was constitutionally adequate. (People v. Taylor (1984) 162 Cal.App.3d 720, 724.) The trial court’s decision is entitled to great weight, especially where, as here, the defendant is represented by a different lawyer and the allegations of incompetent representation are explored at length. (See People v. Wallin (1981) 124 Cal.App.3d 479, 483.) As the Supreme Court observed, “It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them.” (People v. Fosselman (1983) 33 Cal.3d 572, 582.)
We agree with the trial court the record does not show Long’s trial counsel lacked a rational basis for making his tactical choices. For instance, counsel considered but ultimately decided against calling a gang expert because he believed this would underscore the gang aspects of the case, and detract from his emphasis on evidence Long no longer participated in VML activities. Molfetta feared turning the trial into a battle of experts and risking a decision based solely on which expert the jury preferred. He instead sought to focus on what he believed was a lack of evidence Long knew about Ramirez’s gun and highlight the evidence Long had severed ties with the gang. This approach, if successful, would undermine the gang expert’s testimony about gang guns because the concept would not apply to Long if he no longer participated in the gang. Molfetta also believed his cross-examination would reveal Nigro had overstated his opinions, and Nigro on cross-examination did concede whether a gang member would know another gang member held a gun would depend on the facts of the particular case.
Long does not criticize Molfetta’s strategy of attacking Nigro’s testimony about gang guns by pointing to evidence Long had cut his ties to VML, but argues only a gang expert, like Hernandez, could have demonstrated the fallacy of the gang gun concept and also undermine Nigro’s opinion Long was an active gang participant. Molfetta cannot be faulted for not calling Hernandez, whose expertise covered only Northern California gangs. Moreover, Hernandez had no experience with VML and his rejection of the notion gangs use a communal gun was open to attack because no one in California law enforcement shared this view, as he acknowledged. Even if the more prudent course would have been to call a gang expert familiar with Southern California Hispanic gangs, a case Long makes with the benefit of hindsight, Long fails to prove his trial attorney made an irrational tactical decision.
The decision not to call Poncey was a rational tactical decision based on the risk Poncey’s testimony could be seen as introducing evidence of Long’s good character and allowing the prosecution to introduce Long’s prior convictions. Moreover, Poncey knew Long was living in Anaheim, not Menifee, which would have weakened the claim Long had moved far away from his Orange and VML roots. In sum, the record supports the trial court’s conclusion Molfetta had a rational basis for not calling these witnesses.
Nor did Long’s lawyer act unreasonably in not objecting to Nigro’s testimony about Long’s tattoo of a gun. Molfetta objected to the introduction of evidence connecting the tattoo to Long’s conviction for shooting at an inhabited dwelling, and the trial court directed the prosecutor to avoid the connection. When Nigro testified Long’s tattoo “signifies that someone has been an active shooter in an incident, ” Molfetta chose not to object because he feared doing so would highlight the evidence to the jury. This does not demonstrate Molfetta acted unreasonably. As the Supreme Court observed, “‘deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.’” (People v. Chatman (2006) 38 Cal.4th 344, 384.)
The Trial Court Erroneously Enhanced Long’s Sentence by Imposing a One-Year Prison Term Under Section 667.5, Subdivision (b)
Long contends the trial court erred by enhancing his sentence with a one-year prison term for his 2001 conviction for conspiracy to commit robbery, pursuant to section 667.5, subdivision (b). That section provides for a one-year prison term for each prior separate prison term served on an earlier felony conviction.
The trial court also imposed a five-year enhancement per section 667, subdivision (a)(1), on the same 2001 conspiracy to commit robbery conviction. Section 667, subdivision (a)(1), provides for a five-year enhancement for prior convictions involving serious felonies. Conspiracy to commit robbery qualifies as a serious felony. (§ 1192.7, subd. (c)(1).)
Long correctly notes the one-year enhancement for a prior conviction under section 667.5, subdivision (b), does not apply when a five-year enhancement under section 667 attaches to the same conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1150 [“when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply”].) The Attorney General concedes the point. Consequently, we will amend the abstract of judgment to reflect the one-year enhancement imposed under section 667.5, subdivision (b), is stricken.
The Trial Court Did Not Violate Long’s Right to a Jury Trial
long contends the trial court violated his Sixth Amendment right to a jury trial when it imposed an aggravated term for actively participating in a criminal street gang. (§ 186.22, subd. (a) (count 5).) The trial court selected the upper term based on Long’s status as a parolee at the time of the offense. Long complains he was entitled to have a jury decide whether this constituted an aggravating factor, relying on Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny, including Cunningham, supra, 549 U.S. 270.
The California Supreme Court has rejected the identical claim in People v. Towne (2008) 44 Cal.4th 63, 83.) We are bound by the Towne decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, Long’s challenge to his sentence for active participation is rejected.
III
Disposition
The judgment is modified to strike Long’s one-year prison term imposed under section 667.5, subdivision (b), on Long’s February 2001 conviction for conspiracy to commit robbery. As modified, the judgment is affirmed.
WE CONCUR: MOORE, ACTING P.J., IKOLA, J.