PEOPLE v. LOEUN (1995)

Statement of the Case 1

Defendant Chanda John Loeun appeals from a judgment entered after a jury convicted him of assault with a deadly weapon and of committing a crime for the benefit of a criminal street gang.  (§§ 245, subd. (a)(1), and former 186.22, subd. (c).)  The jury also found that he committed the assault for the benefit of a criminal street gang and in doing so personally used a deadly weapon and inflicted great bodily injury.  (§§ 186.22, subd. (b)(1), 667, 1192.7, 1203, subd. (e)(3), 12022.7.)   On appeal, he claims the court erred in failing and refusing to appoint an interpreter for him and that there was insufficient evidence to support the conviction and enhancement concerning gang activity.   We affirm the judgment.

Facts

On May 27, 1993, Ariel Ramirez was working at a Chevron station.   A group of Cambodian males came in to buy cigarettes and stared at him, taking particular note of a red-colored work rag hanging from his pocket.   They left but returned a short time later with several more Asian males.   They were dressed prominently in blue.   One of the original group looked Ariel up and down and raising a hand menacingly said, “ ‘What's up?’ ”   Another said, “ ‘Crip 'cuz.   You got a problem?’ ”   The group then left.

Ariel became frightened and flagged down his cousin, Jose Ivan Corral (Ivan), who was driving by the station.   Ariel's brother Ulises Ramirez and a friend Jamie Amador were driving behind Corral and also stopped.   Ariel explained that Asians had come by and given him a hard time about the red rag.

Ivan saw the group at a nearby basketball court and decided to ask them what the problem was and resolve it.   Ulises, Jamie, and two of Ivan's brothers followed him.   They testified that they had no weapons and no intention of fighting.   As they crossed a field, Ivan saw about 15 people crowded around a car near the basketball court.   The trunk of the car was open.   He saw more people in the area.   When he was about 50–60 feet from the car, he saw someone take a baseball bat from the trunk.   Suddenly a group started running toward Ivan.   Two or three had weapons.   Ivan and his friends turned and ran.

Ariel saw the Asians chasing Ivan.   He saw a group of about 20 running toward the station.   Defendant was in front and had a bat.   Others also had weapons, including bats, a jack, and crowbars.   Ivan ran into the station.   When he saw defendant approaching with a bat, he grabbed a metal pipe and went outside to meet him.

Ivan and defendant confronted each other.   Defendant held the bat as if he were ready to use it.   Ivan held the pipe toward the ground to show he would use it only for protection.   Ivan asked what the problem was.   Defendant asked why Ivan and the others were “trying to rush us.”   Ivan denied it, explaining he only wanted to find out what the problem was between defendant and Ariel.   Defendant was agitated and said, “ ‘Fuck that Norte shit.’ ”   Ivan said he did not belong to any gang.   Many more people gathered behind defendant.   Ivan saw two or three variously armed with a pool cue, jack, and knives.   Defendant spoke to the others, and they began to surround Ivan and his friends.

Ivan put down his pipe, raised both hands, and stepped back, saying, “ ‘Look, I'm even willing to put my pipe on the floor and talk it over.’ ”   Defendant said “ ‘No.’ ”   Ivan heard members of defendant's group say “ ‘Crip’ ” and one person say, “ ‘You want to mess with Crips.’ ”   Defendant said, “I'm a Cambodian Crip.”

When Ivan realized defendant would not put down his bat, he picked up the pipe.   Those next to defendant said, “ ‘Fuck this shit’ ” and the group moved forward.   Ivan stepped back and fell over a bicycle.   While Ivan was on the ground, defendant started hitting him with the bat.   The person next to defendant hit Ivan with a jack.   While still being hit, Ivan managed to get up and run away.

Officer Joel Gonzales of the San Jose Police Department witnessed the assault.   He saw defendant hit Ivan numerous times with the bat.   He also saw someone next to defendant wearing a black numbered jersey hit Ivan with a long thin object.   Gonzales testified that the victim had done nothing to provoke the attack.   Gonzales identified defendant and the other attacker.

Officer Patrick Boyd interviewed defendant and Chad Hen, the other attacker, as well as numerous others in the group with defendant.   All claimed to be members of CWA, i.e., Cambodians with an Attitude or Crips with an Attitude.

The Defense

Defendant testified that he was a member of CWA.   He said he initially went to the gas station because someone there had allegedly called a friend names and given him a problem.   Defendant wanted to find out what happened and solve the problem.   There, Ariel said there was no problem, and defendant left.   He attached no significance to Ariel's red-colored rag.

A short time later, defendant saw a group of Hispanic persons walking toward him, all carrying baseball bats and car jacks.   Defendant retrieved a bat from the trunk of a car.   He then managed by himself to chase the Hispanic group back to the gas station.   Defendant did not consider this a confrontation between rival gangs but simply a disagreement that got out of hand.

He followed the group to the gas station and armed with his bat confronted the Hispanic group, most of whom also had baseball bats.   Ivan, however, had a pipe.   Defendant asked why this was happening since they had settled everything.   Defendant's friends and members of CWA congregated behind him.   Some were armed with pool cues.

Ivan tried to make peace, talk defendant into putting his bat down, and assure him that he was not part of a rival Norteño gang.   Defendant thought Ivan was trying to trick him and was afraid to put his bat down.   Defendant challenged Ivan, saying, “ ‘Fuck that Norte shit.’ ”   When Ivan did not react, he concluded Ivan was not a Norte and asked him, “Why do you want to fuck with the Crips?”   Ivan said he had no problem with Crips.

Defendant was ready to leave, when he heard a bottle smash and “people just started swinging.”   Defendant saw a bat swing toward him but not who was swinging it.   Defendant ducked and began to swing back in self-defense.   He hit Ivan and upon seeing blood ran.   He said he hit Ivan only once.

I. Failure to Appoint an Interpreter

Defendant contends that court erred in failing to appoint an interpreter for him at the beginning of trial and in later ruling that he could only have an interpreter for his own testimony.   He further claims that he did not knowingly and voluntarily waive his right to be assisted by an interpreter during his own testimony.

A. Background

Defendant is Cambodian.   On the first day of trial, he appeared with an interpreter, and the court held a hearing to determine whether to appoint an interpreter for him.   Defense counsel stated that neither he nor defendant felt the need for an interpreter during the couple of hours they had conferred up to that time or during the preliminary hearing.   Counsel did not get the impression from either defendant or the record that defendant had had any difficulty understanding the Miranda² advisement given by police before he waived his rights and made a statement.   However, counsel noticed that defendant had previously had some difficulty understanding the “dispositional options” presented to him.   He felt that defendant's command of English was “simple” and his vocabulary “not particularly sophisticated” and thought that at trial defendant might not understand some of the terminology used or be able to follow rapid-fire cross-examination.   According to counsel, defendant initially thought he could manage in English, but after the preliminary hearing, he realized the seriousness of his case and wanted an interpreter.

The court examined defendant in English and learned that he had been living in the United States for over seven years and had attended all English schools from fifth through eleventh grades, although he might not have completed full years from sixth through eighth grades.

The court concluded defendant had failed to establish the need for an interpreter.   It noted that during the hearing, defendant responded in English before the interpreter finished relating the questions to him.   The court further noted defendant's cooperation with counsel in preparing the case and that up to then had never indicated the need for an interpreter.

In apparent response to defense counsel's comment that the jury “might look at [defendant] and say this guy doesn't speak English very well[,]” the court agreed to allow an interpreter if it made defendant feel more “comfortable.”

For the record, defense counsel conceded that his communications with defendant in English were adequate to prepare defendant and a defense, that defendant understood the nature of the proceedings, and that defendant understood the substance of various plea offers he had rejected.   However, noting the importance of trial and defendant's limited English, counsel felt “uncomfortable” proceeding to trial without defendant having the “fall back” of an interpreter who could make sure he understood and comprehended every word.

Later, when defense counsel said he intended to petition the Conflicts Program for funds to hire an interpreter, the court stated that its ruling was not based on the cost of an interpreter but rather on a finding that “there was no necessity for an interpreter because [defendant] had, I saw no indication that he was unable to understand English so as to require the appointment of an interpreter.”   The court said it would consider the issue again if Conflicts funded an interpreter but pointed out that although defendant might feel more “comfortable” with an interpreter, he had not sufficiently established a need for one.

At trial, defendant elected to testify.   At that time and outside the presence of the jury, the court noted that a Cambodian interpreter was present to assist defendant.   However, the interpreter was immediately excused after revealing a conflict.   Although the court said, “Let's see what we can do about rounding [up] a new interpreter[,]” defendant ultimately testified without one.

After the jury retired to deliberate, that court noted for the record that the interpreter had been unable to proceed and although further arrangements to find one were offered, defense counsel informed the court that defendant had decided to proceed without an interpreter.   The court emphasized, “I just want to make it clear that the decision to testify without the assistance of the interpreter was made by the defense and not because [defendant] was being deprived of the services of an interpreter if he wished one.”  (Emphasis added.)

Defense counsel responded that he had told defendant the court would consider a recess to contact an interpreter but defendant said he would testify without one rather than wait until one could be located.

B. Applicable Principles and Analysis

 A person unable to understand English who is charged with a crime has a constitutional right to an interpreter throughout the proceedings.   (Cal. Const., art. I, § 14.)   The defendant, however, must affirmatively show that his or her “understanding of English is not sufficient to allow him to understand the nature of the proceedings and to intelligently participate in his defense.”  (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1454, 250 Cal.Rptr. 812.)   Although the court must appoint an interpreter if the defendant meets this burden, the court enjoys considerable discretion in initially determining whether an accused's comprehension of English is so minimal as to render the services of an interpreter necessary.  (People v. Carreon (1984) 151 Cal.App.3d 559, 566–567, 198 Cal.Rptr. 843;  see People v. Estany (1962) 210 Cal.App.2d 609, 611, 26 Cal.Rptr. 757.)   Factors relevant to this determination include the defendant's request for an interpreter, whether one has previously been provided, and the defendant's birthplace, community, level of education in the United States, and employment history.  (See People v. Aguilar (1984) 35 Cal.3d 785, 789, fn. 4, 200 Cal.Rptr. 908, 677 P.2d 1198;  In re Raymundo B., supra, 203 Cal.App.3d at p. 1455, 250 Cal.Rptr. 812.)

“When evaluating a determination as to the necessity of appointing an interpreter, the policy of upholding a lower court's decision based upon informed discretion is strong.   The trial judge is in a unique position to evaluate the reactions and responses of the accused and to determine whether he or she does or does not require an interpreter in order to be adequately understood or in order to adequately understand the proceedings.   This exercise of discretion should not be reversed unless there is a complete lack of any evidence in the record that the accused does not understand English, thereby rendering the decision totally arbitrary.”  (In re Raymundo B., supra, 203 Cal.App.3d at p. 1456, 250 Cal.Rptr. 812.)

 Here, defendant was a resident for over seven years and attended all-English classes during those years.   He did not need or ask for an interpreter when arrested.   He conferred with counsel about his case in English and attended the preliminary hearing.   Neither before nor at the hearing, did defendant or counsel request or suggest a need for an interpreter.   Later, when defendant requested an interpreter, the court questioned him in English.   Defendant responded in English without relying on the interpreter present at the time.   Later, when the defense interpreter could not proceed, defendant elected to testify without one and did so.   Last, we note that at no time during the trial did defense counsel suggest to the court that defendant was unable to follow the proceedings, participate in his defense, or understand what was going on.³  Given these circumstances, we do not find the trial court's decision “arbitrary.”   Rather, the record supports a finding that defendant did not need an interpreter.

Defendant's additional claim that he did not knowingly and intelligently waive his right to an interpreter proceeds from the faulty premise:  that he had a constitutional right to the services of an interpreter at that time.   However, defendant brought his own interpreter because he wanted one.   Defense counsel did not make a new showing of need or formally ask the court to redetermine the issue.   Nor did the court did make a finding that he, in fact, needed an interpreter.

Defendant suggests that in allowing an interpreter to assist defendant if and when he testified, the trial court implicitly found that he needed an interpreter.   Given the court's previous ruling and the circumstances supporting it, however, we do not consider it reasonable to infer such a finding.  (Cf. People v. Estany, supra, 210 Cal.App.2d at p. 611, 26 Cal.Rptr. 757.)   Rather, the record indicates that the court simply accommodated defendant's apparent wish to use the interpreter he brought to trial on the day he was scheduled to testify and was willing to recess the trial when the interpreter could not proceed.   Under the circumstances, defendant's election to proceed did not necessitate or involve the waiver of a constitutional right to the assistance of an interpreter.

II. Gang Conviction and Enhancement

Defendant contends there is insufficient evidence to support findings essential to the conviction and enhancement for participating in a criminal street gang.

To establish the offense and enhancement, the prosecution had to prove that defendant acted for the benefit of, at the direction of, or in association with “a criminal street gang.”   Section 186.22, subdivision (f), in pertinent part, defines a “criminal street gang” as “any ․ group of three or more persons ․ having as one of its primary activities the commission of [certain statutorily enumerated crimes] ․ and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”  (Emphasis added.)

Section 186.22, subdivision (e), in pertinent part, defines a “pattern of criminal gang activity” as “the commission, attempted commission, or solicitation of two or more of [certain statutorily enumerated offenses], provided at least one of those 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 are committed on separate occasions, or by two or more persons․”

Defendant specifically claims there is insufficient evidence to support findings concerning both the “primary activity” and the “pattern of criminal gang activity” definitional elements of a criminal street gang.

A. Primary Activity

The prosecutor sought to prove the “primary activity” element through the testimony of Officer Patrick E. Boyd of the San Jose Police Department.   He was qualified to testify as an expert on criminal street gangs in general and the “nature and activities” of CWA in particular.   The record reveals that he has been a member of the San Jose Police Department for 13 years, the last year assigned as a “gang detective.”   He receives yearly training but has gained his most specific knowledge and experience about the local gangs from extensive contact with individuals on the street and conversations about their names, monikers, titles, etc.   Boyd explained that his unit develops and maintains information about individuals suspected of being gang members or associates and investigates the crimes they are suspected of committing.   He collects similar information from fellow officers about crimes, who committed them, who admits gang membership, and who associates with whom.   He also meets with and shares information with other law enforcement agencies.

Boyd testified specifically about CWA.   He recounted that he used to be a “beat” officer in the Poco McCreery area of San Jose and had dealt with CWA members on numerous occasions and assisted other officers on cases.   He noted that originally CWA was a Cambodian gang (Cambodians with Attitude).   However, as its membership broadened to include other Asian nationalities, it became a Crip gang subset, claiming the color blue.

He explained that CWA and a Sureño gang occupied the Poco McCreery area, and both had been subject to drive-by shootings and baseball bat attacks by outside Norteño gangs, which claim the color red.   As a result, the two “blue” gangs associated together to protect their turf and attack Norteño gangs.   He explained that it is very important for CWA to protect its turf and make it known to the outside that they will attack those who try to intimidate them.   Based on his knowledge and experience of CWA, he opined that one of CWA's primary activities was the commission of assaults with a deadly weapon.

Boyd said he had reviewed department documents and investigative reports concerning CWA's activities.   In particular he related a shooting that occurred on November 24, 1992, and involved a person named Sam Ponlok.   Boyd reviewed the police reports and other documents associated with that incident and had also been privy to discussions by the investigating officer when the case was being developed.   Boyd related that on November 24, Ponlok fired a shotgun at another person.   Based on this information, he opined that Ponlok was a CWA member and that he had been riding in the car with another CWA member at the time of the shooting.   He further opined that the shooting was a CWA “payback,” retaliation for attacks against it on its own turf and a “wake-up call for the other gang to quit messing with them.”

Boyd testified about the attack on Ivan Corral.   Noting that it took place on CWA turf, gang-related language was exchanged, the insult “Fuck that Norte shit” was thrown out, the participants attacked others with weapons at a time and place that blatantly advertised their willingness to protect their turf, and every person interviewed claimed CWA membership, he opined that CWA engaged in a pattern of criminal gang activity and that the attack on Ivan was for the benefit of CWA.

Defendant acknowledges that the “primary activity” element may be proved by expert testimony.  (See In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1005, 279 Cal.Rptr. 236.)   However, he claims that Boyd failed to provide a proper and sufficient factual basis for his opinion on this element.   Rather, according to defendant, Boyd's opinion was based on uncorroborated and conclusory generalizations about how groups like CWA are motivated and how they react to real or perceived insults and on inadmissible hearsay concerning the Ponlok incident.   We disagree.

Evidence Code section 801, subdivision (b) provides that if a witness is testifying as an expert, his testimony in the form of opinions is limited to those “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates․”

 Here, Officer Boyd's testimony and opinions were based on his background and training, personal knowledge and experience with CWA, information gathered from contact and conversations with CWA members, and information contained in the police department's investigative files.   Courts have long recognized these sources of information as being the type upon which a police officer may reasonably rely in forming an opinion concerning gangs and their activities.  (See, e.g., People v. McDaniels (1980) 107 Cal.App.3d 898, 904, 166 Cal.Rptr. 12;  People v. Gamez (1991) 235 Cal.App.3d 957, 966–969, 286 Cal.Rptr. 894.)

Boyd testified about CWA's composition, color, and turf.   He explained how and why it was important for CWA to protect its turf and inform others, especially gangs claiming the color red, that it would resist insults and intimidation from others by attacking them.   To this end, CWA had committed assaults with deadly weapons.   Thus, he opined that CWA engaged in such assaults as one of its “primary activities.”   Evidence of the present incident corroborated his opinion.

 That Boyd relied in part on hearsay about the Ponlok incident does not render his opinion improper or inadmissible.   On the contrary, police reports and conversations with the investigating officers concerning the Ponlok incident as well as other information gathered by police in the field, though hearsay, are a reasonable basis for an expert opinion on matters related to criminal street gangs.   Indeed, in People v. Gamez, supra, 235 Cal.App.3d at page 968, 286 Cal.Rptr. 894, the court stated, “We fail to see how the officers could proffer an opinion about gangs, and in particular about gangs in the area, without reference to conversations with gang members.   While the credibility of those sources may not be beyond reproach, nevertheless ․ ‘[t]he variation in the permissible bases of expert opinion is unavoidable in light of a wide variety of subjects upon which such opinion can be offered.’   [Citation.]  To know about the gangs involved, the officers had to speak with members and their rivals.”

If it is reasonable to consider conversations with gang members in forming an opinion about gang related activity, then it is all the more reasonable to consider police reports and investigative information gathered by the police to help combat gang violence.

We are mindful that “ ‘[w]hile an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible.   [Citations.]  The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence.  [Citation.]’ ”  (People v. Coleman (1985) 38 Cal.3d 69, 92, 211 Cal.Rptr. 102, 695 P.2d 189.)   Thus, an officer may not simply recite what he was been told but must provide foundational testimony for his opinions which is sufficiently corroborated by other competent evidence, both physical and testimonial.

Here, however, Boyd's opinion did not rest entirely upon a detailed recitation of hearsay information about the Ponlok incident.  (Cf. Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653 [where an expert's testimony was based entirely on secondhand information from an unidentified source].)   Rather, it was based on personal knowledge, observations, experience and the investigation in this case.   Nor was the hearsay itself general, vague, and unspecific.  (Cf. In re Leland D. (1990) 223 Cal.App.3d 251, 272 Cal.Rptr. 709.)

The ultimate question before us is whether “ ‘a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.’ ”  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738;  see Jackson v. Virginia (1979) 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560.)

 We believe that the jury reasonably could have found Officer Boyd's opinion highly probative on the issue of “primary activity.”   His opinion coupled with the circumstances of the attack on Corral constitute evidence “ ‘of ponderable legal significance ․ reasonable in nature, credible, and of solid value[,]’ ”  (People v. Johnson, supra, 26 Cal.3d at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738), which we find sufficient to support a finding that one of CWA's primary activities was the commission of assaults with deadly weapons.  (Cf. In re Nathaniel C., supra, 228 Cal.App.3d 990, 279 Cal.Rptr. 236 [expert testimony insufficient because it failed to identify the gang as one of those in the area who commit enumerated criminal acts].)

B. Pattern of Criminal Gang Activity

Defendant asserts that to establish the “ ‘pattern of criminal gang activity’ ” element, the prosecutor had to prove either one prior enumerated offense occurring within three years of the current offense and involving more than one person or two prior enumerated offenses occurring on separate occasions within three years of the current offense.   He argues that the only evidence of a prior offense was the Ponlok incident, which was hearsay and thus not competent to prove that the incident occurred.   Thus, there is insufficient evidence to support the “pattern” element.

 We disagree with defendant's view that proof of a “pattern” requires proof of a “prior” enumerated offense.   Courts have either explicitly or implicitly allowed the offense for which a defendant is on trial to be used as one of the requisite offenses.  (See, e.g., In re Jose T. (1991) 230 Cal.App.3d 1455, 1462, 282 Cal.Rptr. 75;  In re Nathaniel C., supra, 228 Cal.App.3d at pp. 1004–1005, 279 Cal.Rptr. 236;  In re Lincoln J. (1990) 223 Cal.App.3d 322, 328, 272 Cal.Rptr. 852;  In re Leland D., supra, 223 Cal.App.3d at p. 258, 272 Cal.Rptr. 709.)

In In re Nathaniel C., supra, 228 Cal.App.3d 990, 279 Cal.Rptr. 236, the court further explained that a single incident for which a defendant is on trial could establish a pattern.   There the defendant was charged with different offenses arising from a single incident on October 12, 1989.   On that evening, a group of people, including members of a gang, talked about whether they would find members of a rival gang at a dance and if so whether they would fight them in retaliation for a prior stabbing.   The group was armed with various weapons.   Defendant joined this group when it left the dance to find and attack rival gang members.   Some were found and chased with the weapons.  (Id. at pp. 996–997, 279 Cal.Rptr. 236.)

On appeal, the court explained “To constitute a ‘pattern,’ the statute requires only that the offenses be ‘committed on separate occasions, or by two or more persons․'  [Citation, emphasis in original.]   The use of the disjunctive in defining ‘pattern of criminal gang activity’ means a pattern can be established by two or more incidents, each with a single perpetrator, or by a single incident with multiple participants committing one or more of the specified offenses.   For example, the October 12 incident in Cypress Park had the potential for constituting a ‘pattern of criminal gang activity.’   However, the evidence failed to show that more than one member of the [gang] actually engaged in the ‘commission, attempted commission, or solicitation’ of an assault with a deadly weapon.'   Therefore, that incident alone cannot establish the pattern as defined and required by the statute.”  (In re Nathaniel C., supra, 228 Cal.App.3d at p. 1003, 279 Cal.Rptr. 236, emphasis added.)

 Given the statutory definition of “pattern,” we agree with the Nathaniel C. court's view that a single incident, even the one on which a current prosecution is based, can provide the factual basis to find the “pattern” element.

 The record here reveals substantial evidence that defendant hit Corral with a bat, that another person, later identified as Chad Hen, hit Corral numerous times with a long thin object, and that both defendant and Hen were members of CWA.   Thus, there is substantial evidence from which the jury could reasonably have found two separate and independent assaults with deadly weapons by CWA members.   These two assaults properly serve as the predicate offenses necessary to find that CWA engages in a “pattern of criminal gang activity.”

 We agree that evidence of the Ponlok incident, which was admitted only to establish a basis for Officer Boyd's opinion, is not competent evidence upon which the jury could have found one of the offenses necessary to establish a “pattern.”   However, as is clear from our discussion above, this evidence was not the sine qua non of a finding of “pattern.”   Moreover, the court instructed the jury not to consider the evidence about the Ponlok incident for its truth, but only as the basis for Boyd's opinion.   We may reasonably presume the jury did not improperly rely on evidence of the Ponlok incident to establish the pattern element.  (See People v. McLain (1988) 46 Cal.3d 97, 119–120, 249 Cal.Rptr. 630, 757 P.2d 569.)

 In a letter brief, the People point out that during closing argument the prosecutor offered the jury two alternative theories for finding a “pattern of criminal gang activity.”   One theory was based solely on the Corral incident;  the other was based on both the Ponlok incident and the Corral incident.   It is settled that where, as here, the prosecution propounds alternative factual theories of guilt, and there is insufficient evidence to support one of them, we may properly affirm the judgment absent some affirmative indication that the verdict was based on the inadequate theory.   (People v. Guiton (1993) 4 Cal.4th 1116, 1129–1130, 17 Cal.Rptr.2d 365, 847 P.2d 45.)

The record does not suggest that the jury based its finding of “pattern” on the hearsay testimony concerning the Ponlok incident.   As noted above, we may reasonably presume the jury properly limited its consideration of this evidence to an understanding of Officer Boyd's expert opinion.

Disposition

The judgment is affirmed.

FOOTNOTES

1.   Unless otherwise specified, all statutory references are to the Penal Code.

2.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

3.   In his opening brief, defendant argues that his testimony demonstrates several times his “difficulty understanding English.”   In particular, he notes his difficulty with the court's statement that he was still under oath or the prosecutor's use of the word “recall.”   These few examples on collateral issues do not as a matter of law reveal that defendant did, in fact, need an interpreter.   On the contrary, notwithstanding these few examples, defendant's testimony reveals his ability to speak and understand English and thus retrospectively supports the court's order.

WUNDERLICH, Associate Justice.

COTTLE, P.J., and MIHARA, J., concur.