GRIMES, J.
In this third strike case, defendant Edwin Chavez was tried before a jury on charges of exhibiting a deadly weapon to a police officer to resist arrest (count 1), possession of a firearm by a felon (count 2), and transporting an unlawful assault weapon (count 3), together with allegations that the crimes were committed for the benefit of a criminal street gang. The jury found defendant not guilty on the first count, but guilty of the other two charges, and found the gang allegations true. The court found various prior conviction allegations true, denied defendant's motion to strike one of his prior strikes (a juvenile adjudication), and sentenced defendant to a total term of 33 years to life in prison.
Defendant appeals, asserting insufficient evidence to support the true finding on the gang allegations; error in the court's refusal to give a pinpoint instruction that gang membership alone was insufficient to support the gang allegations; error in admitting evidence of gang graffiti; abuse of discretion in the court's refusal to strike one of defendant's strike priors; and federal constitutional error in relying on a juvenile adjudication to enhance defendant's sentence. We affirm the judgment.
While on patrol in North Hollywood in June 2007, Sergeant Andrew Kukla and Officer Ross Jester observed a small red Honda without functioning taillights. When they checked the car's license number through their vehicle's computer, they found an outstanding warrant in connection with the license number, and Kukla activated the patrol car's lights and "chirping" siren. The passenger door of the red Honda opened slightly, and the officers thought the passenger was going to "bail." The Honda accelerated, the passenger door closed, and the Honda turned left (failing to stop at a stop sign) and proceeded southbound on Laurel Canyon Boulevard.
The Honda then slowed and defendant got out of the passenger side of the car. Defendant removed a gun from his waistband. The police officers got out of their car, and Sergeant Kukla ordered defendant to stop and drop the gun. Instead, defendant ran up the stairs toward a nearby apartment complex. Defendant could not get through the locked metal gate, ran back down the stairs with the gun swinging back and forth in his hand, and then ran southbound along the sidewalk.
Officer Jester pursued defendant, who had the gun in his right hand. Jester repeatedly shouted to defendant, "Stop! Police," but defendant kept running, then turned, swung the gun around with his right hand and pointed it at Jester. Jester shot at defendant four times. Defendant fell to the ground and dropped the gun. Defendant's gunshot wounds were consistent with having been shot while running away from (but turning back toward) the shooter.
Other police officers arrived at the scene and defendant was taken into custody. The gun defendant dropped was an assault weapon; it was not loaded, but when a police officer searched defendant, he found a large magazine with 23 rounds of .9-mm live ammunition in it.
Defendant was charged by information with exhibiting a deadly weapon to a police officer with intent to resist arrest (Pen. Code, § 417.8);
Defendant pled not guilty and denied the special allegations. At trial, the prosecutor presented Corey Tomlinson, a police officer assigned to a gang enforcement detail, as an expert witness. Tomlinson testified to his knowledge and experience relating to gangs, and in particular to the 18th Street gang (defendant's gang), to which he had been assigned to work for over four and a half years. He testified about the gang's history, geographic boundaries, number of members, rivalries with other gangs, common hand symbols, primary activities,
More particularly, Tomlinson testified that gang members "earn prestige in the gang by putting in work . . . . That's by committing crimes or doing things for the gang." Tomlinson knew defendant, though he did not come into actual contact with him; defendant was once "on the balcony of an apartment complex cussing at me." He testified that the 18th Street gang culture with regard to law enforcement was "[p]retty much they hate us."
When the prosecutor asked about gang culture "with regard to the value of an assault weapon inside that gang," Tomlinson replied that "[i]t's extremely valuable," because of "its capability, because of the number of projectiles it's capable of firing. The range, whether it's a rifle, or depending on a semi-automatic, fully automatic, an assault weapon can be an intimidation factor. If your gang has the bigger and better guns, you're going to be intimidating other gangs and keeping them away from your turf." When the prosecutor asked about gang culture "when it comes to operating the firearms or shooting the firearms," Tomlinson testified, "My opinion is that they do practice. . . . [I]t's a big thing to them. They are very involved in guns. [¶] Like I said, they practice with them. The bigger and badder the gun is, the better to show off to the homeys and everybody and the more intimidating to everybody."
Tomlinson responded to several hypothetical questions:
On cross-examination, counsel asked Tomlinson if, under the circumstances in this case, "they [the gang members] can just be thinking about their own selfish purposes at that time, can't they?" to which Tomlinson responded, "I can't give an opinion of what he's thinking. All I can give an opinion on is the circumstances in front of me in this case. I don't know what he's thinking." Counsel then stated, "Exactly. But I'm asking you based on those things, can a person have just purely selfish motives that have nothing to do with the gang that he's part of?" and Tomlinson responded, "It's possible, but, again, in this situation, I don't believe so."
The jury found defendant not guilty of exhibiting a deadly weapon to resist arrest, but guilty of being a felon in possession of a firearm and transporting an assault weapon, both for the benefit of a criminal street gang. The court found the two prior convictions (one a juvenile adjudication) to be true. The court heard and denied defendant's oral motion to strike his juvenile strike prior under section 1385, and sentenced defendant on the conviction for transporting an assault weapon to a total term of 33 years to life in prison: 25 years to life under the Three Strikes law, the middle term of three years consecutive on the gang allegation (§ 186.22, subd. (b)(1)(A)), and a consecutive term of five years under section 667, subdivision (a)(1) (enhancement for a previous conviction of a serious felony). A prison term of one year on the section 667.5, subdivision (b) prior prison term allegation was stayed. An identical term was imposed and stayed on the conviction for possession of a firearm by a felon.
Defendant filed a timely appeal.
We find no merit in any of defendant's claims on appeal.
We review claims of insufficient evidence by examining the record in the light most favorable to the judgment, to determine if substantial evidence exists for a reasonable trier of fact to find the gang allegations true beyond a reasonable doubt. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 660.) The legal principles applicable to allegations that a crime was committed for the benefit of a gang are these.
First, as People v. Gardeley (1996) 14 Cal.4th 605 teaches, the street terrorism statute "does not criminalize mere gang membership . . . ." (Id. at p. 623.) Instead, it imposes increased criminal penalties "only when the criminal conduct is felonious and committed
Second, the trier of fact "may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation," but the expert opinion testimony allowed under this principle does not include "testimony that a specific individual possessed a specific intent." (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196, 1197 (Frank S.); see People v. Ramon (2009) 175 Cal.App.4th 843, 853 (Ramon) [expert testimony about a possible reason for being in possession of a stolen vehicle and a gun "is not sufficient to support a section 186.22[, subdivision] (b)(1) enhancement"].) Thus, some evidence besides expert testimony on gang culture and habits is necessary to establish the specific intent to promote or further criminal conduct by gang members.
Defendant contends there was insufficient evidence as a matter of law to show that his underlying offenses were gang related. Specifically, defendant points out that his criminal history and gang affiliations alone cannot support a finding that he was transporting the assault weapon with the requisite specific intent to promote the gang, and he claims there was "nothing in the gang expert's testimony from which the jury could reasonably infer that [defendant] was carrying the gun with the requisite specific intent to promote the 18th Street gang." Defendant correctly states the first point, but is wrong on the second. In addition to defendant's criminal history (it was stipulated he was a convicted felon) and gang membership (also stipulated), the circumstances of the underlying offenses themselves—involving an assault weapon—together with the expert's testimony on the value gangs place on assault weapons, was more than enough to allow the jury to infer defendant's specific intent to promote criminal conduct by gang members.
The evidence showed that defendant, a convicted felon and gang member, was in gang territory and in a moving vehicle with an assault weapon—not an ordinary firearm, but an assault weapon. When the police sought to pull over the car in which he was riding with the assault weapon, defendant repeatedly tried to evade the police, even though he must have known his flight, with the assault weapon in his hand, could lead (as it did) to gunfire in a populated neighborhood. The police officer pursuing defendant testified defendant had the assault weapon in his hand as he tried to run away from the officer, aimed the weapon at the officer, and did not drop it until he was shot. The assault weapon, as it happened, was not loaded (although defendant was carrying plenty of ammunition), so a reasonable conclusion is that he was transporting it for some reason other than immediate protection.
Tomlinson's testimony supplied a reason for defendant's otherwise inexplicable course of conduct: assault weapons are "a very powerful tool" for gang members, quite valuable to them, and are frequently passed around within the gang "so that other members can use it to put in work . . . ." From all this evidence (the circumstances of the offenses and Tomlinson's opinions), it was entirely proper for the jury to infer that defendant's transporting of the assault weapon was both for the benefit of his gang and with the "specific intent to promote, further, or assist" in criminal conduct by gang members. (§ 186.22, subd. (b)(1).)
Defendant resists this conclusion, relying on several cases that found insufficient evidence to support gang allegations. None of them requires us to reach a similar conclusion in this case.
Frank S., supra, 141 Cal.App.4th 1192 involved a minor convicted of possession of a concealed knife. A gang expert testified the minor possessed the knife to protect himself; a gang member would use the knife for protection from rival gang members and to assault rival gangs; and the minor's possession of the knife benefited his gang as it helped provide them protection should they be assaulted. (Id. at pp. 1195-1196.) The Court of Appeal found the evidence insufficient to show the minor had a specific intent to promote, further, or assist in any criminal conduct by gang members. (Id. at p. 1196.) The court observed that the gang expert "testified to `subjective knowledge and intent' of the minor," and such testimony was "`much different from the expectations of gang members in general when confronted with a specific action.'" (Id. at pp. 1197-1198.) The court observed that the prosecution "did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense," and concluded that the expert could not be allowed "to state the minor's specific intent for the knife without any other substantial evidence . . . ." (Id. at p. 1199.)
In contrast to Frank S., in this case defendant was in gang territory, with an assault weapon (not a concealed knife). The expert did not purport to testify to defendant's "`subjective knowledge and intent'" (Frank S., supra, 141 Cal.App.4th at pp. 1197-1198), but instead confined his testimony to gang use of assault weapons and the value of assault weapons to gang members, and gave responses to proper hypothetical questions. This testimony, together with the circumstances at the time of the offenses that we have just described, was more than adequate to support a finding of specific intent to promote criminal gang conduct.
Defendant next cites People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa), where the court reversed true findings on gang allegations in connection with the defendant's conviction for carjacking and being a felon in possession of a firearm. (Id. at p. 656.) In Ochoa, the defendant acted alone, and "did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing" the offenses, and there was no evidence of bragging or graffiti to take credit for the crimes. (Id. at p. 662.) The court observed that "[a] gang expert's testimony alone is insufficient to find an offense gang related" and that the "`record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.' [Citation.]" (Id. at p. 657.)
Again, in this case, unlike Ochoa, the expert's testimony was not the only evidence that defendant's offenses were gang related, and there was evidence "other than merely the defendant's record of prior offenses and past gang activities or personal affiliations . . . ." (Ochoa, supra, 179 Cal.App.4th at p. 657.) Defendant was in gang territory, swinging an assault weapon while trying to evade police pursuit and precipitating gunfire in response to his conduct. These circumstances, together with the expert's testimony, allowed the jury to conclude beyond a reasonable doubt that defendant had the specific intent to promote criminal conduct by gang members.
Finally, defendant points to Ramon, supra, 175 Cal.App.4th 843, where the Court of Appeal rejected the jury's true finding on gang allegations with respect to the defendant's crimes of receiving a stolen vehicle, being a felon in possession of a firearm, and carrying a loaded firearm in public for which he was not the registered owner. (Id. at p. 848.) The only evidence supporting the true finding was the expert's opinion, which was based on the gang membership of defendant and his codefendant and their presence in the stolen vehicle in gang territory. (Id. at p. 849.) Ramon concluded that: "[I]n order to sustain the People's position, we would have to hold as a matter of law that two gang members in possession of illegal or stolen property in gang territory are acting to promote a criminal street gang. Such a holding would convert section 186.22[, subdivision] (b)(1) into a general intent crime. The statute does not allow that." (Id. at p. 853.)
But here we have much more than mere "possession of illegal or stolen property in gang territory . . . ." (Ramon, supra, 175 Cal.App.4th at p. 853.) In Ramon, the defendant did nothing untoward when the police initiated a traffic stop of the stolen vehicle (in which a handgun was found under the driver's seat). (Id. at p. 847.) Here, we have a gang member who is a convicted felon, in gang territory, who gets out of a vehicle being pulled over by the police and openly carries an assault weapon while trying to evade pursuit by a police officer. This conduct, together with the expert's extensive testimony on the value gangs place on assault weapons and their customary actions with respect to such weapons, constituted substantial evidence from which a jury could infer defendant specifically intended, when he transported the assault weapon, to "promote, further, or assist" criminal conduct by gang members. Unlike the case in Ramon, here there was no "improper opinion." (Id. at p. 851.) Tomlinson did not speculate; indeed, he specifically declined to speculate about what defendant was thinking: "I don't know what he's thinking." But the jury could infer defendant's intent from the combination of his conduct at the time of his offenses and the expert testimony about the culture and habits of criminal street gangs. (Id. at p. 853.)
In sum, none of Frank S., Ochoa, or Ramon stands in contradiction to the result in this case. Here, the evidence of defendant's conduct at the time of his offenses, together with the expert testimony, constituted substantial evidence from which a reasonable trier of fact could find beyond a reasonable doubt that defendant possessed and transported the assault weapon with the specific intent to promote criminal conduct by gang members. We therefore affirm the true finding on the gang enhancement.
A criminal defendant "is entitled, on request, to instructions that pinpoint the theory of the defense case." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) "Such instructions relate particular facts to a legal issue in the case or `pinpoint' the crux of a defendant's case, such as mistaken identification or alibi," and are required to be given upon request "when there is evidence supportive of the theory . . . ." (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Thus, for example, it would be "`error to refuse to give an instruction requested by a defendant which "directs attention to evidence from . . . which a reasonable doubt of guilt could be engendered." [Citation.]'" (People v. Wright (1988) 45 Cal.3d 1126, 1140 (Wright), quoting People v. Sears (1970) 2 Cal.3d 180, 190.)
At the same time, there is a "well settled rule against argumentative instructions on a disputed question of fact." (Wright, supra, 45 Cal.3d at p. 1137.) "[I]nstructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories `is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.'" (People v. Wharton (1991) 53 Cal.3d 522, 570 (Wharton), quoting Wright, supra, at p. 1143.) And, it is not error to refuse a properly drafted instruction if it simply elaborates on the general instructions. (People v. Hendricks (1988) 44 Cal.3d 635, 643.)
Here, the trial court refused to give an instruction proffered by defense counsel, namely that:
Defendant asserts that this was a correct statement of law; that "[o]ther than [defendant's] gang affiliation, there was no evidence giving the jury any reason to believe that [defendant's] possession of the gun was gang-related"; and that he was "deprived of his right to have the jury advised of this correct statement of law."
There was no error. While it is true that gang membership alone does not prove specific intent to promote criminal gang conduct, defendant's proposed instruction is, in the context of the evidence, simply argumentative. It does not purport to "relate particular facts to a legal issue in the case" (People v. Saille, supra, 54 Cal.3d at p. 1119), but instead, by focusing on a point of law, suggests there is a lack of facts relevant to defendant's specific intent. But that was a matter for argument, not instruction. (Cf. Wharton, supra, 53 Cal.3d at p. 570 ["the effect of certain facts on identified theories `is best left to argument by counsel'"].) An instruction pinpointing defendant's theory (here, the claimed lack of any evidence) is required to be given only "when there is evidence supportive of the theory" (People v. Saille, supra, at p. 1119)—which in this case would mean
Moreover, the jury was properly instructed with CALJIC No. 17.24.2 (felonies committed for the benefit of criminal street gangs), which defines "criminal street gang," "pattern of criminal gang activity," and "primary activities," and advised the jury that the "essential elements" of the gang allegation included two items: that the crimes charged "were committed for the benefit of, at the direction of, or in association with a criminal street gang" and that they were "committed with the specific intent to promote, further, or assist in any criminal conduct by gang members." Nothing in this instruction suggests that gang membership alone would suffice to prove specific intent, and defense counsel was free to argue (and did argue) that issue to the jury. Under these circumstances, it is not reasonably probable that a result more favorable to defendant would have been reached if the instruction had been given. (People v. Watson (1956) 46 Cal.2d 818, 836; Wharton, supra, 53 Cal.3d at p. 571.)
Defendant contends the trial court abused its discretion (and violated his constitutional rights to due process and a fair trial) when it admitted in evidence photographs of gang graffiti. The testifying witness (Tomlinson) did not know where or when the photographs were taken or who was responsible for the graffiti in the photographs. The graffiti in the photographs included the notation "Fuck LAPD" as well as several monikers, among them the moniker "Osito." Respondent told the jury in opening statement that "Osito" was defendant's gang name, but produced no evidence to that effect. Tomlinson testified that he had "seen writing like this" before, "[a]ll over the 18th Street area of North Hollywood Division" and then testified to the meaning of the graffiti in the photograph.
The trial court acknowledged there was no indication "as to where [the photograph] came from . . . or that, in fact, it has anything to do with [defendant]," but found the photograph admissible as "demonstrative evidence to show what gang graffiti looks like and what street graffiti looks like and how it's used, and for that limited purpose I will allow it."
Defendant asserts lack of foundation and that the photographs were more prejudicial than probative. We conclude there was sufficient foundation given the limited purpose for which the photographs were admitted; the photographs were relevant to issues at trial and not unduly prejudicial; and if there were any error in admitting the photographs, it would have been harmless.
Ordinarily, a foundation for authenticating a photograph must be laid "by showing that the picture is a faithful representation of the objects or persons depicted," and the showing "must be made by a competent witness who can testify to personal knowledge of the correctness of the representation." (2 Witkin, Cal. Evidence (4th ed. 2000) Demonstrative Evidence, § 16, p. 25.) While Tomlinson could not authenticate the photographs in this way (his partner took the photographs and gave them to him), the photographs were admitted not for the purpose of establishing that a particular person tagged the graffiti at a particular place or time, but only to show "what gang graffiti looks like and . . . and how it's used . . . ." Tomlinson's qualifications as a gang expert and his testimony that he had "seen writing like this" before, "[a]ll over the 18th Street area of North Hollywood Division" were a sufficient foundation for admission of the photographs for that limited purpose.
Nor were the photographs more prejudicial than probative as defendant claims. Evidence of the gang's common signs or symbols was relevant to the gang allegations, as defendant acknowledges in his brief. Defendant argues the probative value was "minimal" because Tomlinson's testimony was sufficient on that point and because defendant admitted his gang affiliation; he asserts the photographs were "extremely prejudicial" because they depicted the moniker the prosecutor said was defendant's, and "worked against [defendant] to show that he had a criminal disposition and was also involved in other illegal activities such as gang graffiti."
This was a matter addressed to the discretion of the trial court. We cannot disturb its ruling "in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice." (People v. Avitia (2005) 127 Cal.App.4th 185, 193.) No such showing has been made. It is highly unlikely a jury would be swayed by mere photographs of gang graffiti in a case involving a convicted felon with an assault weapon and all the related evidence of the gang's criminal activities. (Indeed, the testimony showing defendant's gang tattoos showed that among those tattoos was one of "a police with an X through it, which is a common thing that gang members do. They cross out their enemies.") The trial court's ruling was not arbitrary or capricious and it did not result in a miscarriage of justice.
Finally, as will already be apparent, it is not reasonably probable that defendant would have obtained a more favorable result if the photographs had been excluded. (People v. Avitia, supra, 127 Cal.App.4th at p. 194.)
The trial court found two prior convictions of a serious or violent felony to be true: a juvenile adjudication in 1998 for robbery (when defendant was 16 years old), and a 2002 conviction for assault with a firearm (committed when defendant was 17 years old). Defendant contends the trial court abused its discretion when it denied his oral motion to strike the juvenile strike prior in the interests of justice under section 1385. We see no abuse of discretion.
Our review of the trial court's ruling is governed by principles established in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 (Romero), and elaborated in People v. Carmony (2004) 33 Cal.4th 367 (Carmony). The burden is on defendant "`"to clearly show that the sentencing decision was irrational or arbitrary."'" (Carmony, at p. 376.) Sentencing courts must follow "stringent standards . . . in order to find . . . an exception" to the Three Strikes law. (Carmony, at p. 377.) The court (trial or appellate) "`must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.'" (Ibid., quoting People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
The trial court's power to depart from the sentencing norm of the Three Strikes law is "carefully circumscribe[d]," and its failure to strike a prior strike conviction would constitute an abuse of discretion in the "extraordinary case—where the relevant factors described in Williams . . . manifestly support the striking of a prior conviction and no reasonable minds could differ . . . ." (Carmony, supra, 33 Cal.4th at p. 378.)
In attempting to meet his burden of proof, defendant points out that he was young (16 and 17) when he committed his prior strike offenses, and since the robbery (which occurred in 1999), he suffered only two misdemeanor convictions, with the most recent one in 2000. In 2002, defendant was convicted of the 1999 robbery and sentenced to five years in prison; since his release in 2004, defendant had no other convictions until the present offense, committed in June 2007 at age 26. He argues his convictions are of decreasing severity; he has family support (his sister and mother testified on his behalf at sentencing); he has a young daughter and wants a chance to change for his daughter and family. He contends a determinate sentence of 25 years would be a more than adequate sentence and he would be in his late 40's before being released from prison.
The circumstances defendant recites do not constitute the "extraordinary case" that "manifestly support[s] the striking of a prior conviction" such that no reasonable minds could differ. (Carmony, supra, 33 Cal.4th at p. 378.) Indeed, the case is clearly to the contrary. At sentencing, the prosecutor argued (and submitted supporting documentation) that defendant was on parole at the time of the current offenses and had been arrested on 13 occasions over the preceding 12 years, with four sustained juvenile petitions, three adult misdemeanor convictions and one adult felony conviction. (Defense counsel acknowledged defendant's "numerous contacts with the police" and that there were "some pretty strong things" in the documentation submitted to the court, but pointed out that "the vast majority of these were never proven beyond a reasonable doubt" and "were not convictions.") The trial court concluded that, while there were "certainly a lot of people here who think highly of [defendant] and don't want to see the court impose the third strike," the court "heard nothing that would require the court or allow the court in its [discretion] under 1385 to grant the motion pursuant to Romero."
The record amply supports the trial court's refusal to strike one of defendant's convictions; certainly the circumstances here do not "manifestly support" the striking of a prior conviction. Consequently, there is no basis for reversing the trial court's ruling.
Defendant also argues that the use of his juvenile adjudication as a strike to enhance his sentence violated his Sixth Amendment and Fourteenth Amendment rights because he was not afforded the right to a jury trial in the juvenile adjudication. That claim is foreclosed by our Supreme Court's decision in People v. Nguyen (2009) 46 Cal.4th 1007, 1028 ("the absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi [v. New Jersey (2000) 530 U.S. 466] preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person").
The judgment is affirmed.
WE CONCUR.
RUBIN, Acting P. J.
O'CONNELL, J.
