THE PEOPLE v. JAVIER SOTELO

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JAVIER SOTELO et al., Defendants and Appellants.

B219799

Decided: January 24, 2011

Tia Fisher, Judge.   Modified in part;  affirmed in part.   Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant Javier Sotelo. Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant Robert Leon. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Javier Sotelo was convicted, following a jury trial, of one count of willful, deliberate and premeditated attempted murder in violation of Penal Code 1 sections 664 and 187, subdivision (a).   The jury found true the allegation that the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C).  The jury found not true the allegation that Sotelo personally used a deadly and dangerous weapon.

Appellant Robert Leon was tried with Sotelo, but the jury did not reach a verdict as to Leon. A mistrial was declared.   In a second trial, Leon was convicted of one count of willful, deliberate and premeditated attempted murder in violation of Penal Code sections 664 and 187, subdivision (a).   The jury found true the allegation that the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C).

The trial court struck the gang allegation as to Sotelo and sentenced him to life in prison with the possibility of parole.   The court sentenced Leon to life in prison with the possibility of parole after he had served fifteen years in prison.

Appellants appeal from the judgment of conviction.   Leon contends that the trial court erred in allowing evidence that a witness was reluctant to testify and in imposing a $10 crime prevention fee.   Leon also contends there is insufficient evidence to support the jury's true finding on the gang allegation.   Sotelo contends that there is insufficient evidence to support the jury's finding that the attempted murder was willful, deliberate and premeditated, the court erred in admitting improper gang expert opinion testimony and the prosecutor committed misconduct in closing argument.   Each appellant joins the other's arguments to the extent applicable.   We affirm the judgment of conviction.

Facts

On January 28, 2009, Eliezer Reyes got into a fight at Nogales High School with Jonathan Lopez.   Reyes was a member of the East Side Dukes and was a student at the school.   Lopez was a member of the Townsmen gang and was known as Monkey Boy. Reyes believed that he won the fight.

Later that day, after school, Reyes walked home.   During his walk, a navy blue or dark Dodge Charger with tinted windows drove toward him and then past him.   About ten seconds later, Reyes was grabbed from behind and punched really hard all over.   Reyes's sweater came off and he was able to escape his attackers.

After Reyes ran about two blocks, his back felt wet.   He touched the wet area and then saw blood on his hand.   A passerby in a car saw Reyes and offered to give him a ride to the hospital.

Reyes remained in the hospital for five days.   He had suffered eight stab wounds to his back and his two collapsed lungs.   At the time of trial, Reyes was still suffering from shortness of breath and he lacked stamina.

Los Angeles County Sheriff's Deputy Lewis Lim spoke with Reyes in the hospital.   Reyes told him that he was attacked by two Hispanic males.   He recognized one of them as “Beaver,” a member of the Townsmen gang.   He described the other attacker as being thin and about 5 feet 7 or 8 inches tall.   Reyes said the driver of the Charger was a female.

Los Angeles County Sheriff's Detective Robert Chism also spoke with Reyes on the day of the stabbing.   Reyes said that someone named Beaver from the Townsmen gang had attacked him.   He said that he had gone to school with Beaver.   Reyes said that a blue Dodge Charger might have been involved in the incident.   At trial, however, Reyes denied telling police that Beaver was a gang member and had attacked him.   Reyes did identify Sotelo as the person he knew as “Beaver.”

The day after the stabbing, Chism went to a traffic stop in the area of the stabbing which involved a blue Dodge Charger.   When Detective Chism reached the scene, the Dodge Charger and another car were stopped.   Sotelo was sitting in the back seat of a patrol car.

Chism also went to a house in the area.   Eventually Leon came out of the house.   He gave police a false name.   Chism detained Leon as a suspect in the stabbing of Reyes.

Police prepared photographic lineups containing photos of Sotelo and Leon. Reyes identified Sotelo as Beaver, the person who had stabbed him.   He identified Leon as the other attacker.   At trial, Reyes testified that he did not remember identifying Sotelo.   He denied identifying Leon.

Los Angeles County Deputy Sheriff Ron Duval testified as an expert on gangs.   He testified that there were a number of gangs in the area where the stabbing occurred.   The gangs included the East Side Dukes and the Townsmen, which were rivals.

The Townsmen gang had about 100 documented members.   The gang engaged in the sale and distribution of narcotics, burglaries, robberies, car theft, murder and attempted murder and drive-by shootings.

The East Side Dukes had been “kind of dormant lately.”

Duval opined that Sotelo was a member of the Townsmen gang and that Leon was a member of the West Side Via Locos gang.

Duval testified that reputation and respect was everything to Hispanic gangs.   If one gang member was disrespected, it would not be acceptable to other members of the gang.

Duval opined that the stabbing in this case was done for the benefit of a criminal street gang.   Based on Reyes's East Side Dukes gang membership and fight with a member of a rival gang, Duval opined that the stabbing was payback for the fight.   Sotelo would benefit because he would earn “big time stripes” in the gang.   The Townsmen gang would benefit from the stabbing because they would “save face” from the fight and the stabbing would show other gangs that they should not mess with the Townsmen and that the Townsmen would retaliate for harm to any member of their group.

Leon would benefit because it would show the Townsmen that he was willing to back up their gang.   This would allow him to live in the Townsmen neighborhood without fear.   Leon's gang would benefit because it would show that that gang was just as tough and just as bad as the Townsmen.

Sotelo and Leon did not present any defense evidence.

Sotelo was convicted of the charges.   The jury could not reach a verdict as to Leon. Leon was subsequently retried and convicted.

Virtually all of the evidence introduced at the first trial was again introduced at Leon's retrial.   Some additional evidence was also introduced at the retrial.

One new witness, Mayra Garcia, testified.   Garcia was the passenger in the car which took Reyes to the hospital.   She testified that she saw a blue Charger just before she saw Reyes on the day of the stabbing.   The Charger was being driven by a female.   Garcia recognized one of the passengers as Beaver.   During the drive to the hospital, Reyes told Garcia that somebody named Beaver had stabbed him.   Reyes did not mention any other attackers.

Two days after the stabbing, Garcia was followed by the same Charger and a blue Suburban.   When the vehicles stopped, a woman named Boxer got out of the Suburban.   Boxer told Garcia that she did not know who she was “fucking with” and that she was Boxer from the Townsmen gang.   Boxer punched Garcia in the nose, causing it to bleed.   Boxer was Leon's girlfriend.

Evidence related to Leon's cell phone was also introduced at the retrial.   The phone contained a text message that was sent at 1:52 p.m. on January 29.   It said:  “Tell Monkey Boy I am not going to make it to go pick him up.   Call me.”   The message also said “Varrio La Via” which was an apparent reference to the West Side Via Locos, the gang claimed by Leon. Records showed that on January 28, the day of the stabbing, at 3:08 p.m., Leon's cell phone was used to make a call that connected through a cell phone tower in East Valinda or Industry, near Galleano and Gendel.   All of the calls made from that phone between 1:30 p.m. and 5:00 p.m. that day connected to cell phone towers in the Industry area.

Deputy Duval also offered additional testimony at the retrial.   He testified that Nogales High School was in an area claimed by the East Side Dukes.   Members of both gangs attended the high school.

Duval testified that the Townsmen gang had a clique that was primarily female, called Brown Pride Hainas.   Elvira Gutierrez, known as Boxer, was a member of that gang.   According to Duval, Leon was dating Boxer's sister.

Duval explained that sometimes members of one gang will date women related to members of another gang.   If the two gangs are not enemies, they form a kind of bond and coexist with mutual respect.   Since Leon was dating someone who belonged to a family of Townsmen gang members, he was allowed to coexist with them.

Duval opined that if a Townsmen gang member was beaten by an East Side Dukes gang member, the Townsmen gang would retaliate.   The loser of the fight would have lost face to the rival gang and to other gangs in the area.   Retaliation would be necessary to show that the East Side Dukes “may have won that battle but [they were] not going to win the war.”   Retaliation would create a sense of fear and intimidation and respect within the gang community and among the general public.

Leon would be earning respect within the Townsmen and would be viewed as a good ally by them.   His gang would also earn respect from the Townsmen.

In his defense, Leon offered the testimony of Miguel Villareal, a jobsite supervisor for Unik Modular Installations, a company owned by Leon's aunt, Bertha Gutierrez.   According to Villareal, he picked up appellant in the morning of January 28, 2009, drove him to the jobsite in Burbank and drove him home.   Villareal and Leon worked in the same room and Leon was never out of Villareal's sight for more than 30 minutes.   The men worked from 6:00 a.m. to 4:40 p.m. Villareal did not recall seeing Leon making phone calls that day.

Bertha Gutierrez testified that she did a walkthrough of the job site on January 28 and remembered seeing Villareal and Leon.

Discussion

1. Sufficiency of the evidence - premeditation and deliberation

Sotelo contends that there is insufficient evidence to support the jury's finding that the attempted murder was willful, premeditated and deliberate.   He specifically contends that the gang expert's testimony that the stabbing was retaliation does not constitute evidence of premeditation and deliberation.   Leon joins in this contention.2  As we explain in section 2 of this opinion, we see no error in the expert testimony.   Even in the absence of that evidence, we see sufficient evidence to support the finding.

In reviewing a challenge to the sufficiency of evidence, “the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.   The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.”  (People v. Mincey (1992) 2 Cal.4th 408, 432.)

The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt.  (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)  “If the circumstances reasonably justify the trier of fact's findings, the

A finding of premeditation and deliberation requires more than a showing of an intent to kill.  (People v. Harris (2008) 43 Cal.4th 1269, 1286.)   Premeditation requires action that is planned in advance.   Deliberation involves a careful weighing of considerations in deciding on action.   (People v. Felix (2009) 172 Cal.App.4th 1618, 1626;  In re C.R. (2008) 168 Cal.App.4th 1387, 1393.)

There are three categories of evidence which can sustain a finding of premeditation and deliberation:  planning, motive and method.  (People v. Elliot (2005) 37 Cal.4th 453, 470, citing People v. Anderson (1968) 70 Cal.2d 15.)   These factors are not prerequisites for proving premeditation and deliberation in every case, and are not the only means to establish premeditation and deliberation.  (People v. Hawkins (1995) 10 Cal.4th 920, 957;  People v. Tafoya (2007) 42 Cal.4th 147, 172.)   Here, there was evidence of all three factors.

Here, Reyes was in a fight at school with Jonathan Lopez.   Reyes believed that he had won the fight.   Reyes was a member of the East Side Dukes gang.   Lopez was a member of the Townsmen gang.   The gangs were rivals.

As Reyes was walking home from school later that day, a blue Charger drove toward him and then past him.   The Charger was driven by a female.   Shortly thereafter Sotelo and Leon attacked Reyes from behind.   Reyes was stabbed eight times in the back.   There were no demands for money or personal possessions, and nothing in Reyes's testimony indicates that there was any attempt to take anything from him by force.   Reyes told police that he recognized one of his attackers as Sotelo, whom he had known since junior high school.   He also told police that Sotelo was a member of the Townsmen gang and was known as Beaver.

Given the nature and timing of the attack on Reyes, it is reasonable to infer that the attack was done in response to Reyes's earlier fight with Lopez.   This inference is strengthened by the fact that Sotelo was in a gang which was a rival of Reyes's gang.   Thus, there is ample evidence of motive.  (See People v. Anderson, supra, 70 Cal.2d at pp. 26-27 [motive to kill may be inferred from “facts about the defendant's prior relationship and/or conduct with the victim”].)   Although Leon was not in the Townsmen gang, there was evidence that he was dating a woman whose family members were in the Townsmen gang.   Further, Leon's jury heard evidence that a text message on Leon's cell phone showed that Leon knew Lopez.

Neither Sotelo nor Leon attended Nogales High School, yet they were in the vicinity of the school around the time the school got out for the day, on the day the fight occurred.3  It is reasonable to infer that they were looking for someone from the school and that their search was related to the fight.   Sotelo had an opportunity to see and recognize Reyes as he drove past.   There is no evidence that Reyes did anything to directly provoke the occupants of the Charger, yet those occupants chose to stop and attack Reyes.   They did not attempt to rob him.   This supports a reasonable inference that an attack was planned, and that the attack was related to the fight earlier in the day.   (See People v. Anderson, supra, 70 Cal.2d at pp. 26-27 [planning may be inferred from “facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing”].)

Reyes was stabbed eight times in the back and his lungs were punctured.   Thus, the method of the attack supports a finding of premeditation and deliberation.  (See People v. Pride (1992) 3 Cal.4th 195, 247;  see also People v. Harris, supra, 43 Cal.4th at p. 1287;  People v. Elliot, supra, 37 Cal.4th at p. 471.)

Sotelo contends that there is no evidence that he or Leon knew of the fight and that the evidence shows only a random beating.   There is no direct evidence of their mental states, but that can be inferred from circumstantial evidence.   As we have just discussed, it is reasonable to infer that Sotelo and Leon planned their attack.   It is much less reasonable to infer, as Sotelo suggests, that he and Leon were in the area of a school they did not attend at the end of the school day for some unknown reason unrelated to the earlier fight at the school and randomly decided to attack someone walking down the street who did nothing to provoke them, and that person coincidentally turned out to be someone known to Sotelo who coincidentally was a member of a rival gang and who also coincidentally had been in a fight with a member of Sotelo's gang earlier that same day.

2. Expert gang testimony

Sotelo contends that the trial court erred in admitting the expert testimony of Deputy Duval because the testimony lacked a proper foundation and improperly went to the ultimate issues of knowledge and intent.   Sotelo contends that the error violated his state and federal rights and was prejudicial because Duval's testimony was the only evidence to support the jury's premeditation and deliberation finding.4

The prosecutor asked:  “Well, so that's your opinion that if Mr. Reyes had been in a fight with a Townsmen gang member and beats that guy up, that if he gets stabbed later, it's for force or necessarily for retaliation?”   Deputy Duval replied:  “Yes. It's payback.”

The prosecutor next asked:  “Hypothetically speaking, then, you know, I'll use the same groups we're talking about.   You know, if an East Side Dukes gang member gets in a fight with a Townsmen gang member, beats him up, in your experience with your knowledge of Hispanic criminal street gangs, is it okay for the group, that individual who does get beat up or his group, to just let that go and forget about it?”   Deputy Duval replied that it was not okay because “[t]hey have to save face” and “to prove

themselves, ․ to one up them if you will and to take it one step further” and to answer back.

The prosecutor then asked:  “Well, in this hypothetical, if, then, the, you know, the person that prevails in that fight, the East Side Duke or the Duke member, you know, within hours is assaulted and you either know or believe that his assailants or one of them is a member of Townsmen, does that ratify or support your theory?”   Sotelo's counsel stated:  “I'm going to object as that calls for the ultimate question.”   The objection was overruled and Duval answered that it enhanced and strengthened his opinion.

Respondent contends that Sotelo has forfeited these claims by failing to make a timely and specific enough objection in the trial court.   We agree that Sotelo's “ultimate issue” objection was untimely.   The prosecutor had already asked, without objection, if in the expert's opinion the stabbing of Reyes was payback for the earlier fight.   The prosecutor had also asked, without objection, two more general questions about gang behavior in response to one of the gang's members being beaten up.   Sotelo's objection did not come until after those questions.

Sotelo contends that he also made an objection based on lack of foundation.   This objection was not sufficient to preserve his claim that the answer to the above questions lacked foundation.   The actual objection by Sotelo came earlier, in response to a question by the prosecutor which asked Duval to state what he based his opinion on.   As the court explained in overruling the objection, the question asked what the basis of the opinion was.   An objection that this question lacked foundation had no merit.   Duval explained that it was based on a conversation between Detective Chism and Reyes.   Sotelo did not object to this foundation.

Assuming for the sake of argument that the issue was not waived, we would find no error in the admission of the evidence.

Gang experts may properly testify about the culture, habits, and psychology of gangs, including the fact that retaliation and intimidation are generally a gang's motive for a crime.  (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512;  People v. Valdez (1997) 58 Cal.App.4th 494, 506.)

Duval testified that a gang would usually retaliate if one of their members was beaten up.   This was proper testimony.   Sotelo contends that Duval's opinion was improper because through the use of hypotheticals it assumed that Sotelo and/or Leon had specific knowledge of the fight and possessed the specific intent to find Reyes and retaliate against him.

At most, Duval's testimony can be understood as stating that based on gang culture, if Townsmen gang members attacked a rival gang member who hours earlier had beaten up a Townsmen, the motivation for the attack would be retaliation.   This opinion contains or is based on an inference that the attackers knew of the fight.   As we discuss above, such an inference is reasonable in light of the time and nature of the attack;  indeed, it is the most reasonable explanation for the attack.   Retaliation, like any other motive, supports a finding of premeditation and deliberation.   That does not transform motive testimony into testimony on the ultimate issue in the case.

Further, assuming that the testimony was erroneously admitted, we see no reasonable probability or possibility that Sotelo would have received a more favorable result in the absence of the testimony.   As we discuss, ante, Duval's testimony was not the only evidence supporting premeditation and deliberation.   Common sense would largely tell the jury that if a person wins a fight with someone, and hours later, the loser's friends attack the victor, the attack is related to the earlier fight.   The missing link in this case was the relationship between the loser (Lopez) and one of the attackers (Sotelo).   Properly admitted evidence showed that Lopez and Sotelo were members of the same gang and thus provided the missing link.

3. Witness fears

Sotelo contends that the prosecutor committed prejudicial misconduct in closing argument by telling the jury that witnesses did not testify at trial because they were afraid of retaliation.   He further contends that the misconduct resulted in an unfair trial which violated his federal constitutional right to due process.5

Respondent contends that Sotelo forfeited his claim by failing to request an admonition.   We do not agree.   The jury was effectively admonished by the trial court, sua sponte.   There was nothing more for Sotelo to request.   Further, Sotelo's claim is that any admonishment would have been ineffective.   Thus, his claim is not forfeited.  (See People v. Hill (1998) 17 Cal.4th 800, 820 [defendant need not request admonition if it would be futile].)

A prosecutor's conduct violates the federal Constitution when it infects the trial with such a degree of unfairness that it results in a denial of due process.  (People v. Jablonski (2006) 37 Cal.4th 774, 835.)   A prosecutor's actions which fall short of resulting in fundamental unfairness constitutes misconduct under state law “ ‘if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.’ ”  (Id. at p. 835.)

A prosecutor commits misconduct when he refers to matters outside the record.  (People v. Cunningham (2001) 25 Cal.4th 926, 1026.)   The prosecution has broad discretion to state its views regarding which reasonable inferences may or may not be drawn from the evidence, however.  (Ibid.)

Here, the prosecutor argued:  “We adduced evidence through not the investigating officer but Ron Duval that gangs kind of thrive on this fear that they instill in the community that people are going to be retaliated against.   I think we adduced from Detective Chism that we had two witnesses who didn't show up.   Well, we're not - we might suggest to you that they didn't show up for that reason but - “ Sotelo's attorney objected at that point.   The prosecutor finished his sentence:  “but not Reyes.”

The court sustained the objection and told the jury:  “[T]he argument relative to the speculation about why they didn't show up is stricken.”   During jury deliberations, defense counsel moved for a mistrial on the basis of the prosecutor's statement.   The court denied the motion, finding that any harm was cured by the admonition and the standard jury instructions telling the jury not to speculate and that what lawyers say is not evidence.

We agree that the prosecutor's argument was improper.   As the trial court recognized, there was no evidence concerning the reason for the witnesses' failure to appear.   Although the prosecutor may well have believed that he was drawing a proper inference from the general gang evidence, we agree with the trial court that the prosecutor was in fact speculating about the reason.

We do not agree that the remark was incurably prejudicial.   Reyes, the victim, testified about the attack.   The evidence showed that there were no other witnesses to the actual attack.   Thus, there was nothing in the record to suggest to the jury that the absent witnesses were key in any way, and the prosecutor's argument did not imply anything about the content of the witnesses' testimony.

Sotelo's reliance on People v. Bolton (1979) 23 Cal.3d 208 and People v. Gaines (1997) 54 Cal.App.4th 821 to show incurable prejudice is misplaced.   In both cases, the prosecutors argued that there was evidence unfavorable to the defendant outside the record.   In Bolton, the evidence supposedly concerned the defendant's prior convictions.  (People v. Bolton, supra, 23 Cal.3d at pp. 212-213.)   In Gaines, the prosecutor argued an alibi witness was not called by the defense because he would have impeached the defendant.   (People v. Gaines, supra, 54 Cal.App.4th at pp. 823-824.)   There were no similar references to substantive testimony in this case.   At one point, the prosecutor did ask Detective Chism if the non-appearing witnesses were the two people in the car who drove Reyes to the hospital.   The trial court called counsel to a sidebar before this question was answered, and the question was not subsequently answered.   Thus, even if the jury improperly considered this question as evidence, the most they would know would be the identity of the witnesses.   Since the witnesses picked up Reyes after he had run about two blocks away from his attackers, there would be no reason for the jury to believe that the witnesses had any important information about the crime itself.6

Sotelo contends that the argument improperly boosted the prosecutor's theory that Reyes was attacked in retaliation for an earlier fight.   We do not agree.   There was properly admitted expert testimony that gangs retaliate for attacks on other gangs and that gangs try to instill fear of retaliation in the community.   We see no reason that the jury could not follow the trial court's instruction to disregard the prosecutor's argument as speculative.   Thus, we see no reasonable probability or possibility that Sotelo would have obtained a more favorable outcome in the absence of the argument.

4. Evidence of witness fear

Leon contends that the trial court erred in his retrial by admitting evidence of witness fear.7  We do not agree.

At the beginning of Garcia's testimony, the prosecutor asked her if she was nervous about testifying, and she replied that she was not.   Later, Detective Chism testified that Garcia was reluctant to go forward with prosecuting Boxer for the incident which occurred two days after Garcia took Reyes to the hospital.   Garcia told Chism that she was afraid of retaliation.   Leon objected to this testimony on hearsay grounds, but the court found that Garcia's statement to Chism was admissible as a prior inconsistent statement.   Leon contends that the trial court erred.

Prior inconsistent statements of a witness may be admitted if the witness has been given an opportunity to explain or deny the statement or the witness has not been excused from giving further testimony.  (Evid.Code, §§ 770, 1235.)   Garcia was not questioned by the prosecution about the inconsistency, but was excused subject to recall.   That is sufficient to satisfy the procedural requirements of Evidence Code section 770.

“Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement.”  (People v. Ervin (2000) 22 Cal.4th 48, 84, internal quotation marks omitted.)

Leon is correct that Garcia was never asked if she feared retaliation.   She was asked only if she was nervous about testifying.   She denied that she was.   Taken in context, however, Garcia's statement about retaliation was inconsistent with her denial of nervousness.

As the court was aware, Garcia failed to appear at trial after being subpoenaed, and Detective Chism had to bring Garcia to court.8  Although it is not the only possible inference from Garcia's conduct, that conduct supports a reasonable inference that Garcia was nervous about testifying.   This inference is strengthened by her statement to Detective Chism that she did not want to prosecute Boxer for the second incident for fear of retaliation.   Boxer was Leon's girlfriend, and thus had an interest in Leon's trial as well.   If Garcia feared retaliation from Boxer for one incident, it was relevant to this case as well.

Assuming for the sake of argument that the trial court erred in admitting the evidence, we see no reasonable probability that Leon would have received a more favorable result if the evidence had been excluded.

Leon points out that Garcia testified that Reyes told her that “some guy, Beaver, had stabbed him.”   When asked if Reyes told her how many guys were involved, Garcia responded, “No. He just said Beaver.”   He contends that this testimony was favorable to him, because he is not Beaver, and that evidence that Garcia was afraid of retaliation could have made her less credible in the eyes of the jury.   He also contends that the jury might have believed that Garcia knew more than she admitted, and might have speculated about what she knew.

Even assuming for the sake of argument that evidence of Garcia's fear had the results suggested by Leon, we see no reasonable probability that this influenced the jury's verdict on the attempted murder charge.   The evidence against Leon was strong.   Reyes gave police a description of the second attacker which matched Leon's appearance.   Reyes subsequently identified Leon in a photographic lineup.   There was evidence of a text message on Leon's cell phone about Monkey Boy (Lopez, the loser of the fight with Reyes) which indicated that Leon knew Monkey Boy fairly well.   There was also evidence that Leon's cell phone connected to cell phone sites in the area where the attack on Reyes occurred.

We also see no reasonable probability that the jury would have made a more favorable finding on the gang allegation in the absence of the retaliation statement.   Deputy Duval's expert testimony on gang behavior and culture was more than sufficient to prove the gang allegation.   Garcia's fear added very little to that.   Further, there was really no dispute at trial that as a general rule, gangs retaliate.   The main dispute at trial was whether gang members could have learned of the fight before the attack on Reyes.   There was also some question as to why Leon, who was a member of the West Side Via Locos gang, would help the Townsmen, but that question was answered by his relationship to a woman in or affiliated with the Townsmen gang and by his apparent friendship with Lopez, as shown by the text message.

5. Sufficiency of the evidence - Gang allegation

Leon contends that there is insufficient evidence in the retrial to support the jury's finding that the Townsmen gang's primary activities were attempted murder, murder, burglary and robbery.   He contends that the gang expert testified that the primary activity of the Townsmen gang was the distribution and sale of narcotics, and that the gang's other criminal activities were intended only to support the narcotics business.9

In order to prove that a gang enhancement is true, the prosecution must show that the crime was committed “for the benefit of, at the direction of, or in association with any criminal street gang.” (§ 186.22, subd. (b)(1).)   A criminal street gang is defined as “any ongoing organization, association, or group of three or more persons ․ having as one of its primary activities the commission of one or more” specified acts. (§ 186.22, subds.(e), (f).)

“Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute.”  (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.)

Narcotics sales and distribution which violate Health and Safety Code sections 11054 through 11058 are crimes specified in section 186.22, subdivision (e)(4).   The trial court did not instruct the jury on those crimes, however.   The court instructed the jury that it could find that the crime in this case was committed for the benefit of a criminal street gang if it found that the gang has “as one or more of its primary activities the commission of attempted murder, murder, burglary, and robbery.”

Here, the prosecution asked:  “What categories or kinds of criminal conduct in your experience do you find that they primarily involve themselves in?”

Detective Duval answered:  “Some of the primary activities that Townsmen engages in as well as most Southern California Hispanic gangs is the sales and distribution of narcotics.  [¶] However, to help control their business and to further their business and support their business, they engage in drive-by shootings, murder, kidnappings, robberies.   They do residential burglaries to obtain weapons, street robberies to obtain weapons or to attain money to buy more drugs or ammunition for the weapons, things like that.”

Detective Duval directly testified that narcotics sales and distributions were a primary activity of the Townsmen gang.   It is reasonable to understand his answer as a whole as stating that drive-by shootings, murder, kidnappings and robberies are also primary activities of the Townsmen gang.   As described by Detective Duval, these other criminal activities are inextricably linked with the Townsmen's narcotics business, so that they too are primary activities.   It would also be reasonable to infer that if these other criminal activities support the primary activity of drug sales, those other activities must be committed “consistently and repeatedly,” and thus qualify as primary activities.  (See People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)

Leon relies on In re Alexander L. (2007) 149 Cal.App.4th 605 to show error.   That reliance is misplaced.   The gang expert in Alexander L. never “directly testif[ied] that criminal activities constituted [the gang's] primary activities.”  (Id. at p. 612.)   On cross-examination, he testified that “the vast majority of cases connected to [the gang] that he had run across were graffiti related.”  (Ibid.) The gang expert's testimony suggested that the graffiti did not even constitute a felony.  (Ibid.)

6. Crime prevention fine

Leon contends that the trial court improperly imposed a $10 “crime prevention fund fine” pursuant to section 1202.5, and that the fine must be stricken.   Sotelo joins in this contention.   Respondent agrees that the fine must be stricken.   We agree as well.

Section 1202.5, subdivision (a) states that a $10 fine must be imposed in “any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488, or 594.”

Disposition

The $10 crime prevention fine imposed on Leon and Sotelo pursuant to section 1202.5 is ordered stricken.   The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting this change and to deliver a copy to the Department of Corrections and Rehabilitation.   The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. We see some merit to respondent's argument that Leon should not be allowed to join Sotelo's argument because Leon was convicted in a separate trial.   As respondent acknowledges, however, the prosecutor submitted substantially the same evidence in both trials.   We will assume for the sake of argument that all of the evidence from the first trial which we rely on in this section was also introduced at Leon's separate trial, and accept his joinder on that basis.   Leon has forfeited any claim that there were unique evidentiary deficiencies in his trial by failing to identify any such deficiencies..  FN2. We see some merit to respondent's argument that Leon should not be allowed to join Sotelo's argument because Leon was convicted in a separate trial.   As respondent acknowledges, however, the prosecutor submitted substantially the same evidence in both trials.   We will assume for the sake of argument that all of the evidence from the first trial which we rely on in this section was also introduced at Leon's separate trial, and accept his joinder on that basis.   Leon has forfeited any claim that there were unique evidentiary deficiencies in his trial by failing to identify any such deficiencies.

FN3. Reyes testified that he got out of school at 2:00 p.m., but stayed at school until about 3:00 p.m. to take care of some tasks in the library..  FN3. Reyes testified that he got out of school at 2:00 p.m., but stayed at school until about 3:00 p.m. to take care of some tasks in the library.

FN4. Although Leon initially stated that he joined in this argument, he acknowledged in his reply brief that there was no error in his separate trial involving expert testimony about “ultimate issues” of “subjective knowledge and intent.”   Thus, we do not consider this claim as to Leon..  FN4. Although Leon initially stated that he joined in this argument, he acknowledged in his reply brief that there was no error in his separate trial involving expert testimony about “ultimate issues” of “subjective knowledge and intent.”   Thus, we do not consider this claim as to Leon.

FN5. Leon initially stated that he joined this contention, but acknowledged in his reply brief that prosecutorial misconduct did not occur in his separate trial.   Thus, we do not consider this claim as to Leon..  FN5. Leon initially stated that he joined this contention, but acknowledged in his reply brief that prosecutorial misconduct did not occur in his separate trial.   Thus, we do not consider this claim as to Leon.

FN6. The car's passenger, Mayra Garcia, testified at Leon's separate trial, and did have some substantive information to offer.   She noticed a blue Charger just before she saw Reyes and also noticed that it was being driven by a female.   Two days later, she was followed by the same blue Charger and was confronted by a woman who stated that she was Boxer from the Townsmen gang.   Boxer was Leon's girlfriend.   There was nothing in the first trial to suggest such testimony, however..  FN6. The car's passenger, Mayra Garcia, testified at Leon's separate trial, and did have some substantive information to offer.   She noticed a blue Charger just before she saw Reyes and also noticed that it was being driven by a female.   Two days later, she was followed by the same blue Charger and was confronted by a woman who stated that she was Boxer from the Townsmen gang.   Boxer was Leon's girlfriend.   There was nothing in the first trial to suggest such testimony, however.

FN7. Sotelo joins this contention.   There was no testimony about Garcia's reluctance to go forward with prosecuting Boxer in Sotelo's trial, so his claim fails..  FN7. Sotelo joins this contention.   There was no testimony about Garcia's reluctance to go forward with prosecuting Boxer in Sotelo's trial, so his claim fails.

FN8. Chism testified to this conduct by Garcia immediately after his testimony about Garcia's fear of retaliation for prosecution..  FN8. Chism testified to this conduct by Garcia immediately after his testimony about Garcia's fear of retaliation for prosecution.

FN9. Sotelo joined this claim.   Leon's argument relies on evidence in his retrial.   The gang expert's testimony in Leon's retrial was not identical to his testimony in Leon's earlier trial with Sotelo.   Since Sotelo has not offered any argument concerning the evidence in his trial, we do not consider his claim.   We note that Deputy Duval did testify in the joint trial that murder was a primary activity of the Townsmen..  FN9. Sotelo joined this claim.   Leon's argument relies on evidence in his retrial.   The gang expert's testimony in Leon's retrial was not identical to his testimony in Leon's earlier trial with Sotelo.   Since Sotelo has not offered any argument concerning the evidence in his trial, we do not consider his claim.   We note that Deputy Duval did testify in the joint trial that murder was a primary activity of the Townsmen.

TURNER, P. J. MOSK, J.