KANE, J.
Defendant Stephen Devon Miller, a member of the Country Boy Crips, a Bakersfield criminal street gang, shot a fellow gang member in a dispute involving respect, power, and reputation. Defendant was convicted of attempted first degree murder, assault with a firearm, and possession of a firearm by a felon. On appeal, he contends (1) the gang enhancement was not supported by substantial evidence, (2) the trial court erred in admitting opinion testimony from the gang expert on defendant's subjective intent, (3) the trial court erred in refusing to bifurcate the gang allegations, (4) the trial court erred in denying defendant's motion to dismiss for violation of his right to a speedy trial, (5) the trial court erred in denying defendant's motion for mistrial based on the disclosure at trial of defendant's prior criminality, (6) the trial court erred in denying defendant's motion for new trial based on new evidence, and (7) the errors were cumulatively prejudicial. We will affirm.
On December 12, 2008, the Kern County District Attorney charged defendant with premeditated attempted first degree murder (Pen. Code, §§ 664, 187, subd. (a), 189;
A jury convicted defendant of all counts and found true the special allegations. The trial court found true the prior conviction allegations. The court sentenced defendant to 61 years to life in prison, as follows: on count 1, a 15-year-to-life term, doubled pursuant to the Three Strikes law; plus a 25-year-to-life enhancement under section 12022.53, subdivision (d); plus a five-year enhancement under section 667, subdivision (a); plus a one-year enhancement under section 667.5, subdivision (b); plus stayed enhancements under sections 12022.53, subdivision (c), 12022.5, subdivision (a), and 12022.7, subdivision (a). On the remaining counts and enhancements, the court imposed stayed terms.
Michael Brownbey, a member of the Country Boy Crips (CBC), grew up in CBC territory in Bakersfield. He lived in what he called "Country, in Cottonwood and Planz [Roads]." He and defendant had known each other for about 20 years and they were close friends. Brownbey joined the CBC gang when he was 13 or 14 years old, and defendant joined about two years later. Brownbey's role in the gang was to sell drugs. He explained that some people in the gang sell drugs, some people shoot people, and some people just "bang," which means represent the gang by wearing colors and doing what they are needed to do. Brownbey usually hung out at places he could sell drugs, including a house on Southgate Avenue (the Southgate house) near CBC territory, where CBC members gathered.
About one month before the shooting, Brownbey loaned his 9-millimeter automatic gun to defendant. The day before the shooting, Brownbey asked defendant for his gun, but he did not give it back.
On October 12, 2006, Brownbey arrived at the Southgate house around 6:00 or 7:00 p.m. He came alone, but defendant and about six other CBC members, including Bob,
Brownbey and Bob got into an argument because Bob had invited defendant and his friends to come over and Brownbey did not want them there. Brownbey and defendant had been having some disagreements and Brownbey "just didn't want no part of him being over there." Brownbey had already told Bob he did not want anybody over, so he was angry with Bob for inviting them anyway. When defendant heard Brownbey tell Bob that they had to leave, defendant asked, "[D]o I got to go, too?" and Brownbey said, "[Y]eah." This started an argument between Brownbey and defendant as they stood around the dice game. Defendant started talking about Brownbey's girlfriend and things that had happened in the past. They both started "disrespecting each other" and calling each other names. Defendant accused Brownbey of letting someone "punk" him because the person had stolen his truck's speakers and amplifier and he knew who had done it. Defendant called him a bitch for that. Defendant also called Brownbey a fool because his girl was a "ho" who was sleeping with his homeboy. Brownbey said his girl might be a ho, but he could get $1,000 for her right now and she would just give it to him. The loaned gun came up and their argument intensified. Brownbey approached defendant, but he was "just talking," so Brownbey went back to the dice game. Then defendant said something else. Brownbey got up and said, "[Y]ou don't want to swipe me, [defendant]." At that point, defendant tried to kick Brownbey's legs. Brownbey said, "[Y]ou don't want to fight," and he walked back to the game. Defendant continued to talk and told Brownbey he was going to "run [him] out of the country," which meant the gang. Defendant did not have the authority to kick Brownbey out of the gang. When defendant said that, Brownbey hit defendant in the face. Brownbey was already mad because defendant was talking about his girl in front of all of the men, but when he threatened to run him out of the hood, which meant by any means necessary, that was disrespect. After Brownbey hit defendant, they started fighting. Defendant fell and Brownbey fell on top of him, then the crowd broke it up by pulling Brownbey off defendant. Defendant got up and told Brownbey, "[O]n my momma, I'm going to shoot you." Brownbey replied, "I got whistles, too," referring to guns. Brownbey walked back to the dice game, and defendant and Bohannon left.
Darius Key told Brownbey he would take him where he needed to go, but Brownbey told him not to worry about it. Brownbey did not think defendant was going to shoot him; he thought their relationship was "better than that." He thought defendant loved him the way he loved defendant.
Fifteen to 30 minutes later, when Brownbey was on his knees throwing the dice and looking down, he felt himself getting shot in the chest. He looked up, saw defendant's face, and fell to the ground. He saw a .38-caliber revolver in defendant's hand. Everyone got up and ran; only a person named "Cadillac" stayed with Brownbey.
Officers in the vicinity arrived about 60 to 90 seconds after hearing the gunshots. They saw several African-American men running and several cars leaving the area in a hurry. Several of them pointed the officers to the backyard of the Southgate house. The officers saw no White, Hispanic, or Asian males, and no females. In the backyard, the officers found Brownbey lying on the concrete patio with a gunshot wound. Another African-American male was attempting to help him. The officers rendered aid and asked Brownbey if he knew who had shot him, but Brownbey did not answer.
Brownbey remained conscious and was aware that emergency personnel were /cutting his clothes off. He told the officers he did not know who shot him because he did not want to identify defendant; he was just going to handle his business himself. He was going to look for defendant and do what defendant had done to him. He was not going to give any statement to the officers and he was not going to testify.
After Brownbey was removed, there was a puddle of blood and some bloody clothing on the concrete patio. Protruding from the clothing was $340. In the front pants pocket, officers found a driver's license and keys. Small bills were in various other locations in the yard.
Brownbey had been shot in the chin, neck, and chest. He had surgery to replace the artery in his neck and he suffered a stroke while he was unconscious. When he woke up, he could not talk. He was partially paralyzed and he temporarily lost his ability to speak, read, and spell.
When Brownbey woke up, his mother was there. She asked him if defendant shot him, and Brownbey started crying and nodding his head affirmatively. When Brownbey's father visited, Brownbey also informed him that defendant shot him. Officers showed Brownbey a photographic lineup of six suspects. Brownbey chose the picture of defendant and circled it. Brownbey was clear-headed when he picked out defendant and at trial he still had no doubt in his mind that defendant shot him.
In the hospital, Brownbey had time to think about the whole scenario. He had been shot by his best friend, all his "homies" had left him to die, and he was unable to talk.
In February 2007, about four months after the shooting, Brownbey was arrested for selling cocaine and being involved in gang activity. He was facing the possibility of 19 years in prison. While he was in jail, officers visited him three times regarding the instant case. At first, Brownbey refused to testify. He was not willing to come forward and be a victim. He agreed to plead guilty to a gang enhancement, receive another strike, and go home. Later, after several more meetings, Brownbey agreed to testify. He was not offered any kind of deal regarding his criminal matters. He was offered only to be placed in the witness protection program and relocated. He was not forced in any way to testify.
Since the shooting, Brownbey had seen defendant about four times and defendant had not threatened him in any way, but they had not spoken to each other.
At the time of trial, Brownbey was no longer in the gang. He felt his life was in danger because he was testifying against a fellow gang member. Gang members view anyone who testifies as a threat and they do not like it when gang members testify against each other. Brownbey waited two years for defendant to at least come to him and show some compassion or just ask forgiveness.
When Brownbey was in Lerdo jail, he saw Billy Johnson, a former neighbor. Johnson asked Brownbey what had happened and Brownbey described the shooting to him.
On May 18, 2009, officers interviewed Johnson. In the recorded interview, Johnson said he had seen Brownbey at Lerdo jail. Brownbey told him defendant had shot him over a dice game. When Johnson saw defendant a few weeks later, Johnson asked him, "[M]an, why you shoot—shoot [Brownbey] like that?" Defendant answered, "I don't—man. You think it was hard, you know." Johnson told the officers that he would not testify.
Johnson did testify at trial, but he did so against his will and he essentially could not remember anything.
Dupree Jackson testified that he was a former CBC member. He left the gang in 2007, after about 10 years. He had lived in a known gang drug house, and defendant used to come to Jackson's house to sell drugs. Jackson joined the CBC gang when he was about 12 years old. He wanted to be in the gang because he saw everyone else selling drugs and having money and fancy cars. At first, he liked being in the gang because he got attention and love from his homies. Even though Jackson had family in the gang, he still chose to get "jumped in," which meant physically hit, because he wanted to enhance his reputation. Jackson explained that reputation and respect are very important in the gang. Respect "[g]ets you a long way inside the gang, and you get people who, like, tell you, oh, he ain't no punk. He got heart." Respect helps a member's status within the gang. OG's are older guys who have a reputation and "stripes." They have been in the gang a long time and they are getting older. They lead the gang and run the neighborhood. They tell the other gang members what to do and pass on the history of the gang. They teach the younger members "how to bang the hood and do it with respect and ride for your dead homies who died for the hood." "[B]anging" means hanging out, selling drugs, riding, and shooting your enemies. The OG's teach the younger members the gangster code, the policy the gang members live by. That code states that if one gang member turns evidence against a fellow gang member, he will be labeled for life as a "snitch."
Jackson explained that being an active CBC member means "basically you out there putting it down. You got your hands in everything. You're being aggressive. It's, like, no limit to what you do. [¶] ... [¶] Whoever you beefing with, you go and put it down against your enemies, basically kill your enemies. [¶]... [¶] You always in the middle of some type of confrontation or argument. You just want to be the center of attention. [¶]... [¶] [Y]ou want your reputation to sky rocket .... You want to be known throughout the whole hood. You want that name for yourself. [¶] ... [¶] Nothing matters. You are fearless. [¶] ... [¶] Not afraid to kill, shoot people. Nothing."
Jackson said that inside the gang, some people sell drugs ("hustle") all day, some just want to go shoot at the enemies ("put it down"), some drive around the boundary to protect the gang territory, and some (the "pretty boys") bring all the females in the neighborhood to the gang. Sometimes the older members pressure everyone else to be a shooter and killer. They want everyone to "go ride for the hood." When a member disobeys, a couple of members are sent to beat him up and discipline him. He will be given the choice of complying or being "run ... out of the hood," which means his life will be threatened. He will be killed if he remains in the neighborhood. He can never return. Being run out of the hood is a very serious thing.
The CBC color is powder blue. Some CBC tattoos include "CBC," "NC" (the University of North Carolina logo, which is used to mean "Notorious Country"), "C Dub" (for Cottonwood Road), "South Side," and "ESK" (for East Side Killer; East Side is the rival of CBC). Gang members get tattoos after they have been to jail or have "already lied down." It makes them look tougher and raises their status somewhat.
Jackson said the Southgate house was a CBC hangout, even though it was not in CBC territory. The CBC gang would sell drugs from the Southgate house and keep guns there.
Jackson considered Brownbey one of his "older homies from the Country." Defendant and Brownbey were friends of Jackson's oldest brother and Jackson had grown up around them. Jackson and defendant hung out together every time defendant got released from prison.
Jackson was at the Southgate house during the shooting. He had just gotten out of prison several days earlier for possession of cocaine for sale, which was his only felony conviction. He and Key arrived in the afternoon, when four or five people were already there. The CBC members present that evening included defendant, Brownbey, Jackson, Key, Collins, and Foreman.
During the dice game, defendant and Brownbey started arguing about a gun and their girlfriends. The argument was getting personal. Defendant said, "I run this out here." Brownbey responded, "I got the same stripes as you, you know.... You just came in the gang in the '90s." Defendant said, "I'll run you out the hood." Brownbey took offense and said, "You can't run me out my own hood. It's my hood, too. I got stripes just like you got stripes." At that point, they started fighting physically. Brownbey was the aggressor and he was getting the best of defendant. When they stopped fighting, they "still started talking crap to each other." Defendant told Brownbey, "You better not be here when I get back." Brownbey answered, "I ain't trippin'. He ain't the only one with a whistle."
After defendant left, Jackson and the others told Brownbey he should leave and they would take him anywhere he wanted to go. But Brownbey said, "Man.... I am not trippin'.... He ain't the only one that got ... a whistle.... Nobody going to run me from my own spot. This is my spot." After about 10 minutes, defendant returned. He opened the gate and walked toward them with a black revolver pointed at the ground. He was wearing dark jeans and a dark hooded top. Jackson stared at defendant in shock and disbelief. Jackson got a good look at defendant's face. Jackson did nothing because he did not want to get shot. Brownbey was standing up, counting his winnings. Defendant walked quickly, as though he had a one-track mind and knew what he was going to do. Defendant approached Brownbey, raised his gun, and started firing from about four to five feet away. He fired two or three times, hitting Brownbey in the chin and neck. Brownbey fell to the concrete and all his money scattered. Defendant turned around and left the way he had come.
At this point, panic broke out. Jackson was on parole and he had just witnessed "one of [his] homies getting shot by the next homey." Jackson told Key, "Get me up out of here." Foreman was not on parole, so he volunteered to call the ambulance and stay with Brownbey. Everyone else left.
A few days later, defendant told Jackson, "Don't be putting my name," and "Don't be saying what you saw." Defendant said he was on the run from parole. He said he was going to turn himself in to parole and see what happened.
Jackson testified that defendant was not an OG in the gang, but he was a shot caller or ring leader. Jackson felt he was in danger by testifying because there is one thing a gang member is not supposed to do and that is snitch on one of his homies. The snitch will be killed.
The parties stipulated that defendant was a convicted felon.
An officer had seen defendant's tattoos about four years earlier. On March 19, 2001, the officer was called to the Hollywood Market on Planz Road and Shellmacher Avenue. When he arrived, defendant was in a vehicle with someone named Foreman. The officer observed that defendant had tattoos on his face, above and below the left eye. Above the eye was "CBC" and below was "ESK."
On September 16, 2005, at about 10:00 p.m., an officer was called out to the D & A market on Cottonwood Road, as he had been many times. The market had "No Loitering" signs posted. When he arrived, he found over 20 vehicles and more than 50 people in the parking lot. Officers detained defendant, who was wearing tennis shoes with powder blue coloring, the color of the CBC gang. Two or three other people in the lot were wearing the same shoes. Defendant had a "CBC" tattoo on his chest, a "C" on one arm, and a "W" on the other.
Officer Brent Stratton, the gang expert, described the boundaries of the CBC territory, the area the members consider home and feel safe in, but he also noted that members frequently leave the gang territory for various purposes. The Southgate house, which is one to one and one-half miles outside the CBC territory, is in a territory not claimed by any gang and thus gangs in nearby territories might be found there. Within their territory, gang members tag property with their graffiti to advertise their presence and their ownership of the neighborhood. Tattoos, which show dedication, are extremely important to the gang. When they are on body parts that are not covered by clothing, they show even greater dedication.
Officer Stratton identified some CBC members. He testified that Darius Key, known as "D-Key," was an admitted CBC member who had been arrested for CBC-related crimes; in Officer Stratton's opinion, Darius was a CBC member. Bobby Collins, known as "Little Bob," had been contacted in CBC territory and arrested for CBC-related crimes; in Officer Stratton's opinion, he was a CBC member. Officer Stratton identified four other people he considered CBC members.
Officer Stratton testified that the CBC gang's primary activities, which he had personally investigated, include murder, assault with a deadly weapon, possession of firearms, witness intimidation, criminal threats, burglary, carjacking, and sale of narcotics.
Officer Stratton presented evidence of four predicate, gang-related crimes committed by CBC members, to show the ongoing pattern of criminal activity by the CBC gang.
Officer Stratton was familiar with defendant. His moniker was "Little V." The officer presented photographs of defendant's tattoos, which included "CBC" above his left eye to show that he was a CBC member, and "ESK" below his left eye to show he would kill his rival East Siders. In Officer Stratton's opinion, these facial tattoos were significant because they could not be concealed by clothing. The "CBC" tattoo on defendant's chest showed his membership, and the "C" and "W" on his arms showed he belonged to the CBC subset of Cottonwood. Officer Stratton had not seen gang-related tattoos on someone who had never been a gang member. Officer Stratton detailed defendant's contacts with law enforcement, including his prior arrests, which involved gang-related conduct. In Officer Stratton's opinion, defendant was an active member of the CBC gang on October 12, 2006.
When the prosecutor presented Officer Stratton with a hypothetical of facts nearly identical to those of the shooting in this case, the officer opined that the incident in the hypothetical was gang-related because CBC gang members were gathered, two gang members got into a fight, part of the fight involved respect, and one gang member threatened to have the other forced out of the gang. Officer Stratton believed the hypothetical crime was committed in association with the CBC gang. And he believed the crime also benefitted the gang member by enhancing his violent reputation within his own gang, and the gang member's enhanced reputation benefitted the gang as a whole because it informed other gangs that the CBC gang members are capable of violence, even among their own, and that they should be feared. And if the victim was perceived as a weaker member of the gang, his elimination could potentially benefit the gang as well. When asked if he thought the hypothetical shooter "just [did] that selfishly," Officer Stratton answered, "No, sir. I don't think so. I think when you're talking about—in your hypothetical you talk about running someone from the hood or running them from the gang[,] that has a broader connotation than just himself." When the prosecutor asked for further explanation, Officer Stratton said, "Well, he's talking about the hood. He's talking about the gang and a hood. And a gang by its very definition is more than one person. So I think he's talking about it being bigger than just his—for his selfish purposes."
Acoy Bohannon was present when Brownbey was shot. Bohannon arrived at the house with Brownbey around 7:00 or 8:00 p.m. Bohannon had seen the seven or eight men before, but he did not really know them. He did not see defendant there. He joined in the dice game and was drinking with the others. Everyone was African-American except for the person "that came up shooting." Bohannon got a good look at the shooter and observed that he was a "Hispanic male with a light goatee, maybe 25 years old, and he had a hoodie sweatshirt with his hoodie on with the hood over his head." The Hispanic man walked up and asked Brownbey something to the effect of "Give me the money," and then started shooting. Everyone scattered and ran away. Bohannon jumped a gate and a fence, then ran a block down the street. He returned and helped Brownbey, staying with him until the police came. At that point, he took off because he was on parole. He did not speak to law enforcement.
On cross-examination, Bohannon testified that each time he had been booked in the Kern County Jail, he had asked to be housed with Crips. He was not a gang member, but he was more comfortable being housed with Crips. He did not think he had ever been specific about which gang, such as the CBC gang. He had been convicted of felonies and he was currently on parole. When shown a field interview card, Bohannon did not remember being contacted by police in that area.
Bohannon explained that he watched the Hispanic shooter "just walk[] up casual." There were men coming and going, so Bohannon did not suspect anything. The shooter had his hands inside his sweatshirt. When he approached, Brownbey was kneeling down and shooting dice. The shooter pulled a chrome gun out of his sweatshirt and started shooting. He fired two to four shots. Bohannon left, stood by his car for about 30 seconds, and watched everyone run away. He returned to see what had happened and he found Brownbey lying on the ground, bleeding. There was an older man, maybe 40 years old, with Brownbey. Bohannon stayed for three to five minutes. Defendant was never present that evening. Bohannon did not know defendant personally, but he knew him by appearance. Bohannon knew Collins, but Collins was not the man who stayed with Brownbey.
Bobby Collins testified he had gone to high school with defendant, and he had known Brownbey for seven or eight years. Collins was present when Brownbey was shot. Collins and Brownbey were roommates at the time. Collins arrived at the Southgate house around 5:00 or 6:00 p.m. While Collins was on his knees gambling, he heard someone from the side say, "[Brownbey], you owe me some money," or something to that effect. When Collins looked up, he saw a big, dark revolver pointed at Brownbey. The shooter was a Hispanic man with a goatee. His hood covered half of his head. Collins testified he was sure the man was Hispanic, but he could have been some other race. Collins had never seen the man before. Before Brownbey could stand up, the man fired two or three shots. Collins took off running. He jumped the gate and ran down the street. He did not return and he never spoke to law enforcement.
On cross-examination, Collins testified that he had never been a CBC member, had never admitted being one, and did not hang out with them. But he had lived inside CBC territory and had gone to school with a lot of CBC members. Law enforcement always labeled him a CBC member because he lived in that territory, but he had never been in a gang. His drug selling had nothing to do with the gang. In 2007, he suffered a gunshot wound in CBC territory. Collins had been convicted of a felony for selling cocaine and he was currently on probation.
Collins denied ever having a conversation with Officer Pratt about the shooting. Collins would not have forgotten the conversation. When asked which CBC members were present the night of the shooting, Collins answered, "No one."
Darius Key testified that he had known defendant since they were children. Key also knew Brownbey from growing up together and from gambling. On the night of the shooting, Key arrived at the Southgate house at around 4:00 p.m. The crowd remained the same; people did not really come and go. The men playing dice were all African-American, but three Hispanic people were watching them over the fence. Southgate was a Hispanic area. When it got dark, someone wearing a hooded sweatshirt and carrying a gun approached and said something about some money. The man was a tall, "like white-skinned guy, like you [k]now brown-skinned, like he could be Hispanic." Key did not get a good look at the man, but he saw "a Hispanic face." Key immediately started running and jumped the gate. Everyone ran, but Brownbey was handicapped from a previous shooting. Once out of the yard, Key heard gunshots.
On cross-examination, Key testified that he had never been a CBC member. Key explained that when the shooter approached, he peeked and watched the men gambling. Then he went down and crept up with the gun. Key testified: "Whoever the person was, he have to be watching us. So as he is watching us, he popped up kind of like a movie, kind of like how the police officers do when they trying to stake you out. They watch you. And it was a reaction, like—you know what I mean? I guess at the time, I don't know what he was doing or how he did it. It seemed like he didn't want to make sure—he probably didn't think if there was a gun in there or not. Whoever it was, he probably was scared, too." When the shooter jumped around and Key saw him, he was already pointing the gun and charging at them, saying, "Where the money at? Where the money at?" Brownbey had a wad of money because he was a good gambler and he was winning that night. Key explained what he did when he saw the gun: "First thing you are going to do is run. Like, I didn't try to sit to watch or nothing. All I saw was this bright skin, and I'm gone." Key looked at the shooter for about two seconds. Key did not return and he never spoke to law enforcement.
Deputy Pratt testified that in November 2008, he contacted Collins's family and left his card. On November 21, 2008, Collins called Deputy Pratt at work and identified himself. Deputy Pratt recorded their conversation, which was played for the jury.
In the recorded interview, Collins stated he was not present at the shooting. When someone called and told him that Brownbey had been shot, he came immediately and stayed with Brownbey when he was down on the ground. When Collins arrived, only one person, named "Cadillac," was there with Brownbey. Collins referred to Brownbey as his cousin. Collins told Deputy Pratt he would tell him who shot Brownbey if he knew. He said people were being confidential about it so they must be afraid to tell. When Deputy Pratt told Collins that defendant shot Brownbey, Collins was surprised because defendant and Brownbey were so close.
Officer Stratton testified that he had researched Bohannon, but had not met him personally. In Officer Stratton's opinion, Bohannon was at least an associate of the CBC gang. He had been contacted in September 2003 within CBC territory and he admitted to the officer that was a CBC member. In addition, on each of his 25 arrests between 1996 and 2006, Bohannon had claimed to be a Crip and asked to be housed with Crips. On nine of those arrests, he specifically claimed to be a CBC member.
Defendant contends insufficient evidence supported the gang enhancement because the shooting was between two best friends who just happened to be fellow gang members. He explains there was no evidence the fight between them involved the gang or would benefit the gang. We disagree.
The substantial evidence standard of review applies to gang enhancements and gang participation convictions. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.) "Our review of the sufficiency of the evidence is deferential. We review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We focus on the whole record, not isolated bits of evidence. [Citation.] We presume the existence of every fact the trier of fact could reasonably deduce from the evidence that supports the verdict. [Citation.] If the verdict is supported by substantial evidence, we accord due deference to the verdict and will not substitute our evaluations of the witnesses' credibility for that of the trier of fact. [Citation.]" (People v. Killebrew (2002) 103 Cal.App.4th 644, 660; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) Substantial evidence includes circumstantial evidence and the reasonable inferences this evidence allows. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) "We may reverse for lack of substantial evidence only if `"upon no hypothesis whatever is there sufficient substantial evidence to support"' the conviction or the enhancement. [Citation.]" (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508.)
To establish a gang enhancement, the prosecution must prove two elements: (1) that the crime was "committed for the benefit of, at the direction of, or in association with any criminal street gang," and (2) that the defendant had "the specific intent to promote, further, or assist in any criminal conduct by gang members ...." (§ 186.22(b)(1).)
"[T]o prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs. [Citation.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048 (Hernandez); People v. Ferraez, supra, 112 Cal.App.4th at p. 930 ["It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a ... finding on a gang allegation"].) "`Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth." [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however. [Citations.]' [Citation.]" (People v. Ward (2005) 36 Cal.4th 186, 209.) But "[a] gang expert's testimony alone is insufficient to find an offense gang related." (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) Rather, the expert testimony must be accompanied by some substantive factual evidentiary basis from which the jury could reasonably infer the crime was gang related. (Id. at p. 660 ["something more than an expert witness's unsubstantiated opinion that a crime was committed for the benefit of, at the direction of, or in association with any criminal street gang is required to justify a true finding on a gang enhancement"]; People v. Ramon (2009) 175 Cal.App.4th 843, 852; People v. Morales (2003) 112 Cal.App.4th 1176, 1198; People v. Ferraez, supra, at p. 931.)
As we have explained, the first element of the gang enhancement may be satisfied by any one of three prongs—the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) In this case, sufficient evidence supported two of the three prongs.
There was evidence to support the finding that the shooting was committed for the benefit of the CBC gang. The gang expert testified that such a crime would enhance the violent reputation of not only the gang member who did the shooting, but the gang as a whole. Other gangs would know that CBC members were to be respected and feared because of what they were capable of doing. The reputation of active CBC members, as Jackson explained, is based on unlimited aggressiveness. That reputation skyrockets when a member shows fearlessness and a willingness to kill.
There was also ample evidence that the shooting was committed in association with the CBC gang. Association with the gang requires more than association with a gang member; it requires evidence that the crime was gang related. (People v. Gardeley, supra, 14 Cal.4th at p. 622; In re Frank S., supra, 141 Cal.App.4th at p. 1199.) As the gang expert testified, the shooting was gang related and committed in association with the gang because it occurred at a gang gathering, two gang members got into a fight, the fight involved disrespect, and one gang member threatened to have the other forced out of the gang. Defendant's claim that the shooting was not gang related, but just happened to occur between two fellow gang members, is completely contradicted by the evidence, which established that the motivation for the crime was gang related. Other witnesses testified that the argument started with disrespectful comments, which were particularly egregious because they were spoken in the presence of a group of fellow gang members. Defendant told Brownbey that he ran "this out here," and they argued about their status in the gang. The argument escalated until defendant threatened to run Brownbey out of the gang—a comment so serious and disrespectful that it drove Brownbey to strike defendant. When Brownbey prevailed in the ensuing physical fight, defendant swore he would shoot Brownbey and he left for a gun.
Jackson explained that reputation and respect are very important in a gang, particularly for a gang member's status within the gang. Indeed, a prospective gang member who, through family contacts, is eligible to simply join the gang might instead choose the physical abuse of getting "jumped in" because it immediately elevates his reputation. If a gang member is run out of the gang or hood, his life is threatened and he will be killed if he remains in the neighborhood. He can never return. A threat to run someone out of the gang is a very serious and disrespectful comment.
Based on this evidence, it is clear the shooting was motivated by a struggle for power and respect within the gang, and by the desire to enhance defendant's notoriety for violence and fearlessness. In other words, the crime was intimately related to the activities of the gang.
Defendant also maintains that the gang expert's testimony that the shooting was not for defendant's selfish purposes, which defendant claims was the sole evidence presented on the issue, did not constitute substantial evidence of the second element—that defendant acted with "the specific intent to promote, further, or assist in any criminal conduct by gang members ...." (§ 186.22, subd. (b)(1).)
The mental element of the gang enhancement requires substantial evidence from which the jury can infer that in committing the gang-related criminal act, defendant specifically intended to engage in or promote criminal gang conduct. (People v. Albillar, supra, 51 Cal.4th at p. 68.) A finding of specific intent requires a subjective desire. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 5, p. 204.) However, "[i]ntent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal.App.4th 413, 420.)
"There is no requirement in section 186.22, subdivision (b), that the defendant's intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense defendant commits. To the contrary, the specific intent required by the statute is `to promote, further, or assist in any criminal conduct by gang members.' [Citation.] Therefore, defendant's own criminal [act] qualifie[s] as the gang-related criminal activity.... [¶] ... [T]here is no requirement in section 186.22 that the crime be committed with the intent to enable or further any other crime ...." (People v. Hill (2006) 142 Cal.App.4th 770, 774.) This is not to say, however, that a gang member's intent to merely commit the crime—that is, to promote his own criminal act—suffices to establish the specific intent required by the statute. But when the circumstances surrounding the crime establish that the crime itself was related to the activities of the gang, an inference of specific intent to promote criminal conduct by gang members reasonably may be drawn. (See In re Frank S., supra, 141 Cal.App.4th at p. 1199.)
Here, there was evidence that the circumstances of the shooting were rooted in the gang culture of respect, power, and reputation. The gang expert opined that a threat to run a gang member from the gang or the hood has a broad, gang-related meaning, and therefore the hypothetical shooting was not simply a selfish crime. Abundant evidence established the critical importance of respect in the gang, and the gang members' aspiration to gain a reputation for aggression, violence, and fearlessness. Defendant and Brownbey were engaged in a power struggle over their positions and reputations within the gang. They exchanged words of disrespect, argued about who was running things and who had the "stripes," and defendant ultimately threatened to force Brownbey out of the gang. In our opinion, a reasonable jury could infer from the circumstances of the crime and the customs and priorities of the gang that defendant intended his shooting of a disrespectful fellow gang member to have the effect of elevating and expanding his reputation as an aggressive and violent member, thus facilitating future crimes committed by defendant and his fellow gang members. Sufficient evidence supported the mental element of the gang enhancement.
In a related argument, defendant asserts that the gang expert's testimony was improper because the expert gave his opinion on defendant's subjective knowledge and intent, and because the expert's opinion was based on a transparent hypothetical. On the latter point, defendant relies on People v. Vang, which was granted review on September 15, 2010 (S184212), following the filing of his opening brief.
A jury may rely on expert testimony about gang culture and habits when reaching a verdict on gang-related offenses or findings on gang enhancement allegations. (Evid. Code, §§ 720, subd. (a), 801, subd. (a); see People v. Gardeley, supra, 14 Cal.4th at p. 617; People v. Ferraez, supra, 112 Cal.App.4th at p. 930.) Generally, an expert may give opinion testimony based on hypothetical questions that are rooted in the evidentiary facts. (People v. Gardeley, supra, at p. 618.) An expert may not testify on the subjective knowledge and intent of a specific individual. (People v. Gonzalez (2006) 38 Cal.4th 932, 946; People v. Killebrew, supra, 103 Cal.App.4th at p. 658.) A trial court's admission of expert testimony is reviewed for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45.)
We need not reach the merits of this claim because we conclude any error in the admission of the gang expert's testimony about the hypothetical was harmless. As we have explained, evidence other than that offered by the gang expert overwhelmingly demonstrated that defendant was motivated by disrespect from a fellow gang member and committed the crime to enhance his gang reputation for violence and fearlessness. It is not reasonably probable had the challenged expert testimony been excluded, defendant would have obtained a more favorable result. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019; People v. Earp (1999) 20 Cal.4th 826, 878.)
Defendant contends the trial court erred in denying his pretrial motion to bifurcate the gang allegations. He explains that the issue was the identity of the shooter and "there was nothing inherent in the facts of the shooting to suggest any specific gang motive." He claims the only evidence that the crime was gang related was the expert's testimony concerning defendant's intent. Gang evidence, he explains, was "mostly unrelated to the events of the evening" and consumed a major portion of the trial. He maintains the admission of irrelevant and highly prejudicial gang evidence deprived him of due process. We could not disagree more.
"[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. 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 force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]" (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) "Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself ... a court may still deny bifurcation." (Id. at p. 1050.) Hernandez explained that a "trial court's discretion to deny bifurcation of a charged gang enhancement is ... broader than its discretion to admit gang evidence when the gang enhancement is not charged." (Ibid.) Bifurcation is required only where a defendant can "`clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' [Citation.]" (Id. at p. 1051.)
In applying this law, Hernandez noted that much of the gang evidence presented in that case was relevant to the charged offense, specifically on the issues of motive and intent. (Hernandez, supra, 33 Cal.4th at p. 1051.) Hernandez acknowledged that evidence of prior criminal acts by the defendants' fellow gang members and some of the expert testimony would not have been admissible at a trial that was limited to the charged offense (ibid.), but held that the trial court had acted within its discretion in denying the motion to bifurcate (ibid.).
In this case, gang evidence was inextricably intertwined with the substantive offense. The shooting was gang related, and the evidence was clearly relevant to the substantive crime to establish motive, intent, and identity. Under the facts of this case, we conclude the court acted within its discretion in refusing to bifurcate trial of the gang enhancement from trial of the charged offenses. (Hernandez, supra, 33 Cal.4th at pp. 1050-1051.)
Defendant asserts that his due process right to a speedy trial was violated because the prosecution refiled a complaint more than two years after the first complaint was dismissed. According to the parties' papers, the first complaint was filed on October 23, 2006, and the case was dismissed on November 3, 2006, prior to the preliminary hearing. Over two years later, on November 21, 2008, the prosecution refiled the charges against defendant. We find no error here.
"[T]he Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause." (United States v. MacDonald (1982) 456 U.S. 1, 7, fn. omitted.) "Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. [Citations.] A claim based upon the federal Constitution also requires a showing that the delay was undertaken to gain a tactical advantage over the defendant. [Citations.] `[P]rejudice may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.' [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 107.)
"Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt.... A prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt." (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 914-915.)
In this case, we agree with the trial court that defendant failed to show that he was prejudiced by the delay or that the prosecution intentionally delayed to gain a tactical advantage. Brownbey had initially identified defendant as the shooter, but he had refused to give a statement or testify. There was simply not enough evidence to proceed with the trial until Brownbey agreed to testify. The additional witnesses, Jackson and Johnson, located during the delay were, as the prosecutor put it, bonuses. Defendant did not show that he lost witnesses or the memories of witnesses. In fact, he presented a good defense with witnesses who testified that he was not the shooter. Substantial evidence supported the trial court's findings and therefore the trial court did not err in denying defendant's motion to dismiss. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 911-912 [whether delay was unreasonable and prejudicial is question of fact; we uphold trial court's ruling on motion to dismiss if supported by substantial evidence].)
Defendant maintains that the trial court abused its discretion and violated due process when it denied his motion for mistrial based on mention at trial of his prior prison terms and his parole status. In violation of a pretrial ruling, Jackson twice mentioned defendant's criminality when he testified that he hung around defendant every time defendant got released from prison and that defendant told him he was on the run from parole. We conclude the comments were harmless and thus the court did not abuse its discretion in denying the motion.
"[E]xposing a jury to a defendant's prior criminality presents the possibility of prejudicing a defendant's case and rendering suspect the outcome of the trial. [Citations.] [¶] Whether in a given case the erroneous admission of such evidence warrants granting a mistrial or whether the error can be cured by striking the testimony and admonishing the jury rests in the sound discretion of the trial court. [Citation.] `"A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." [Citation.]'" (People v. Harris (1994) 22 Cal.App.4th 1575, 1580-1581; People v. Avila (2006) 38 Cal.4th 491, 573.)
In light of all the evidence, the jurors' awareness that defendant had been in prison and had been on parole could not have prejudiced defendant. He did not have, nor did he desire, a reputation as a law-abiding citizen. Indeed, he and his fellow gang members cultivated a reputation for lawlessness—specifically, violence, fearlessness, and a ready willingness to kill. Furthermore, the jurors also learned that defendant had been convicted of a felony, that he went to Jackson's house (a known drug house) to sell drugs, that he was a shot caller or ring leader in the gang, that gang members get tattoos after they have been to jail or have shot at their enemies, that defendant had conspicuous gang tattoos on his body and face, that many gang members have frequent contacts with the police, that defendant had contacts with officers in 2001 and 2005, that Brownbey had loaned defendant a gun, that defendant claimed he ran things, that he and Brownbey were arguing about their status within the gang, and that defendant shot Brownbey for disrespecting him and to enhance his reputation for violence. There is no conceivable possibility that the jurors were surprised to learn that defendant had served time in prison or had been on parole. We cannot believe that these disclosures made defendant look any worse a criminal. Under these circumstances, we have no doubt that the two incidental remarks were harmless in that it is not reasonably probable defendant would have obtained a more favorable result had the remarks not been made. (People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California (1967) 386 U.S. 18, 24; see, e.g., People v. Rolon (1967) 66 Cal.2d 690, 693 [improper reference to a prior conviction is nonprejudicial in the light of a record that points convincingly to guilt]; People v. Harris, supra, 22 Cal.App.4th at pp. 1580-1581 [any error harmless in light of overwhelming evidence].) The trial court did not abuse its discretion by denying the motion for mistrial.
Defendant argues that the trial court erred by denying his motion for a new trial on the basis of the discovery of evidence that Jackson had lied on the stand. The new evidence included information from two of Jackson's relatives, Anthony Henderson and Theodore Richards. Anthony Henderson would testify that Jackson told him he was forced to testify falsely because he was in custody, and he was not actually present when the shooting occurred. He said he should not have testified as he had, but he did not want to go to jail. Theodore Richards would testify that Jackson told him he was not present at the shooting, and he had testified because he did not want to be prosecuted for murder. At the hearing on the motion, the court found the testimony not credible, concluded the evidence would not have changed the outcome of the trial, and denied the motion. We see no abuse in the trial court's ruling.
Section 1181 provides in relevant part: "When a verdict has been rendered ... against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶]... [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." "In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: `"1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits."'" (People v. Delgado (1993) 5 Cal.4th 312, 328, italics added.)
"Such a motion is generally looked upon with disfavor .... In determining whether there has been a proper exercise of discretion, each case must be judged upon its own factual background.... In its consideration of these ... factors [to be considered in ruling on the motion], the trial court may weigh the credibility of the new evidence in determining whether its introduction would render a different result on retrial reasonably probable." (People v. Cole (1979) 94 Cal.App.3d 854, 859-860, overruled on other grounds in In re Kelly (1983) 33 Cal.3d 267, 277.) The weight and credibility to be given to the new evidence is for the trial court. (People v. Hill (1969) 70 Cal.2d 678, 699.) "`The moving party must make a clear case, showing ... the truth ... of such evidence. Newly discovered evidence after defeat is looked upon with suspicion.'" (People v. Singh (1909) 11 Cal.App. 427, 429.) "`The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.'" (People v. Williams (1988) 45 Cal.3d 1268, 1318, abrogated on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 560-561.)
In this case, the new evidence, if believed, impeached Jackson's testimony that he saw defendant shoot Brownbey. Defendant claims Jackson's testimony was the only evidence that corroborated Brownbey's story, but there was evidence from Johnson that he spoke to defendant about his shooting Brownbey. Moreover, Brownbey's testimony was highly detailed and he unequivocally identified defendant as the shooter, both in and out of court. Even without Jackson's testimony, Brownbey's testimony was sufficient to support the conviction. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259 [one witness, if believed by the jury, is sufficient to sustain a verdict].) And defense counsel cross-examined Jackson extensively about whether he had previously stated that he was not present when the shooting occurred, what he had previously told investigators, and his agreement to testify in another case. Jackson did not recant. Finally, the defense presented evidence that a Hispanic man, not defendant, was the shooter—evidence that was rejected by the jury. Under these circumstances, we conclude the trial court, which expressly discredited the new evidence, did not abuse its discretion in denying the new trial motion.
Lastly, defendant asserts that even if the foregoing claims of error do not amount to reversible error individually, their cumulative effect does. Because we have found either no error or harmless error in each instance, defendant's contention that he prejudicially suffered from the cumulative effect of errors must fail.
The judgment is affirmed.
WE CONCUR:
Levy, Acting P.J.
Gomes, J.
