THE PEOPLE v. JOSE MANUEL DURAN (2011)

Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL DURAN, Defendant and Appellant.

2d Crim. No. B224949

Decided: July 28, 2011

Jose Manuel Duran appeals from the judgment after a jury convicted him of assault with a deadly weapon (ADW) with a gang enhancement (count 1;  Pen.Code, §§ 245, subd. (a)(1);  186.22, subd. (b)(1)) 1, attempted criminal threats with a gang enhancement (count 2;  §§ 664/422;  186.22, subd. (b)(1)), and street terrorism (count 3;  § 186.22, subds. (a).)  Appellant admitted a prior strike conviction (§§ 667, subd. (c)(1) & (e)(1);  1170.12, subds. (a)(1) & (c)(1)) and a prior serious felony conviction (§ 667, subd. (a)), and was sentenced to 16 years state prison.2  We affirm.   Facts On January 7, 2009, Joshua Alejo was attacked by appellant and Martin Sanchez in front of Centro Market in Camarillo.   Appellant and Sanchez punched and kicked Alejo, knocking him to the ground.   During the beating, appellant grabbed a carpenter's level from a pickup and struck Alejo twice, lacerating his arm and head.   Alejo's friend, Diego G., witnessed the attack and heard appellant threaten Alejo.   Appellant said, “Barry Street gang.   I'm going to kill you.”   Other people shouted “Barry Street” and “Vario Camarillo.”   Diego identified appellant and Sanchez in a photo lineup and at a jail lineup.   He said they were gang members and their gang monikers were “Danger” and “Suspect.”   After the assault, the police executed a search warrant and found gang graffiti in appellant's house.   A gang expert, Ventura County Deputy Sheriff Daniel Alcantar, testified that appellant and Sanchez were active members of the Barry Street gang, a criminal street gang that primarily committed assaults and robberies to garner respect and fear in the community.   Centro Market was in Barry Street gang territory.   Deputy Alcantar testified that appellant had a 2004 gang-related conviction for ADW, that appellant had Barry Street gang tattoos and had admitted on several occasions that he was a gang member, and that appellant attended gang functions and had been observed loitering, riding or meeting with other gang members.   Deputy Alcantar opined that the offenses were committed for the benefit of the Barry Street gang and that a new gang member such as Sanchez may try to prove himself with the gang by taking the blame for crimes committed by older gang members.   By doing so, the new gang member “[e]arns his bones” and shows he is willing to do anything for the gang.   Appellant defended on the theory that Sanchez alone committed the offenses.3  After Sanchez pled guilty to ADW without a gang enhancement, he appeared as a defense witness.   Sanchez denied that appellant committed the offenses and claimed the assault was a personal matter and had nothing to do with the gang.   Motion to Limit Gang Expert Testimony Before trial, appellant offered to stipulate that Barry Street was a criminal street gang within the meaning of the STEP Act (§ 186.20 et seq.) but refused to stipulate that he was an active member of the gang.   The prosecution declined to enter into the stipulation.   Appellant argued that it would be prejudicial to permit Deputy Alcantar to testify that other Barry Street gang members had been convicted of robberies and armed assaults.   The trial court denied the motion to limit the expert testimony.   It found that the prosecution, in order to prove the gang offense and gang enhancement, could introduce expert testimony to show that gang members engaged in a pattern of criminal activity, that there was a common name or organization, and that gang members were aware of the criminal activity.   The prosecutor stated that it would prove the predicate offenses by introducing certified documents and asking Deputy Alcantar if the individuals in the documents were Barry Street gang members.   The deputy, however, would not be asked to discuss the facts of the predicate offenses.   Appellant agreed to the procedure but argued that the prosecution should not bring up appellant's prior gang-related conviction.   The prosecutor responded that unless appellant admitted that he was an active gang member or guilty on count 3 (street terrorism), Deputy Alcantar would testify about the prior conviction to demonstrate a pattern of criminal activity and to show that appellant knew that members of the gang committed crimes that constituted a pattern of criminal activity.   The trial court denied the motion to limit the expert testimony and permitted Deputy Alcantar to testify about the prior conviction but gave a limiting instruction.   The jury was instructed that the testimony was being admitted for the purpose of showing that appellant acted with the intent, purpose and knowledge required to prove the gang related crime and enhancements.  (CALCRIM 1403.) 4  Gang Expert Testimony Appellant argues that the prejudicial impact of the expert testimony outweighed its probative value.  (Evid.Code, § 352.)   We review for abuse of discretion.   (People v. Valdez (1997) 58 Cal.App.4th 494, 511.)   It is well settled that opinion testimony by a gang expert may be used to establish the elements of a gang enhancement or a substantive gang offense.  (People v. Gardeley (1996) 14 Cal.4th 605, 619–620.)   The trial court reasonably concluded that the probative value of the expert testimony outweighed the potential for prejudice.  (People v. Hernandez (2004) 33 Cal.4th 1040, 1051;  People v. Gardeley, supra, 14 Cal.4th at p. 619.)   Evidence of past or present criminal acts is admissible to establish a pattern of criminal gang activity.   (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)  “Evidence of the defendant's gang affiliation – including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like – can help prove identity, motive, modus operandi, specific intent, means of applying fear or force, or other issues pertinent to guilt of the charged crime.  [Citations.]”  (People v. Hernandez, supra, 33 Cal.4th at p. 1049.)   Citing People v. Memory (2010) 182 Cal.App.4th 835, appellant argues that the gang expert testimony was inflammatory.   In Memory, defendant stabbed the victim in a fight outside a bar and was convicted of second degree murder.   The trial court received evidence that defendant was a member of a motorcycle gang even though a gang enhancement was not alleged.   The Court of Appeal reversed the conviction on the ground the gang evidence was irrelevant and inflammatory.  (Id., at pp. 862–863.)  “ ‘Gang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character․’  [Citation.]”  (Id., at p. 859.)   Unlike People v. Memory, supra, appellant was charged with both a gang offense and a gang enhancement.   Expert testimony about appellant's prior conviction and gang contacts was probative to prove the street terrorism count and the gang enhancements.  (See e.g., People v. Tran (2011) 51 Cal.4th 1040, 1044.)   Although gang evidence should be excluded where it is only tangentially relevant to the charged offenses (see e.g., People v. Albarran(2007) 149 Cal.App.4th 214, 223), this is not such a case.   In order to convict on the street terrorism count, the prosecution had to prove that appellant actively participated in a criminal street gang, knew that its members engaged in a pattern of criminal gang activity, and that appellant willfully promoted, further or assisted in felonious criminal conduct by fellow gang members. ( § 186.22, subd. (a);  see People v. Lamas (2007) 42 Cal.4th 516, 523.)   To prove the gang enhancements, the prosecution had to show that appellant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang with the “specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1);  see People v. Williams (2009) 170 Cal.App.4th 587, 639.)   The prosecution also had to prove the Barry Street gang (1) was an ongoing association of three or more persons with a common name or common identifying sign or symbol, (2) that the gang had, as one or more of its primary activities, committed ADWs and robberies, and (3) that the gang members, whether acting alone or together, engaged in or have engaged in a pattern of criminal activity. (§ 186.22, subd. (f);  CALCRIM 1401.)   Appellant claims the expert testimony was “redundant and cumulative to the point of being unduly prejudicial.”   Deputy Alcantar identified eight Barry Street gang members who had been convicted of gang related crimes.   The deputy further stated that appellant met 12 of the Camarillo Police Department's 15–point criteria for determining gang membership, and identified each criteria and the number of times appellant met the criteria.   Appellant did not object, waiving the alleged error.  (People v. Catlin (2001) 26 Cal.4th 81, 122–123;  People v. Champion (1995) 9 Cal.4th 879, 918.)   Waiver aside, the alleged error was harmless.  (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710];  People v. Watson (1956) 46 Cal.2d 818, 836.)   The gang expert evidence was no more inflammatory than the testimony of how appellant beat and threatened to kill the victim.   Diego's identification of appellant was independently corroborated by a video surveillance of appellant and Sanchez inside the store just before the assault.   The standard of review is not whether the trial court admitted more evidence than was “necessary” but whether the court admitted irrelevant evidence or evidence whose prejudicial effect substantially exceeded its probative value.  (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)   Here the predicate offenses, appellant's prior conviction, and his contacts with the gang were properly admitted to prove identity, motive, intent, knowledge, and modus operandi, and to explain why Sanchez would try to take the blame for appellant.   The expert evidence further showed that appellant's gang involvement was active, on-going, and more than nominal or passive.  (People v. Castenada (2000) 23 Cal.4th 743, 752.)   It was an element of the street terrorism count. (§ 186.22, subd. (a);  CALCRIM 1400.)   The fact that relevant and admissible gang evidence may prove damaging to the defense does not warrant its exclusion as overly prejudicial under Evidence Code section 352.  (People v. Karis (1988) 46 Cal.3d 612, 638.)