Filed 11/20/14 P. v. Olivares CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B248543

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA081416)
         v.

SALVADOR IVAN OLIVARES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Alan B.
Honeycutt, Judge. Affirmed.


         Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.


                                          _____________________________
       A jury found defendant Salvador Olivares guilty of one count of first degree
murder (Pen. Code, § 187, subd. (a)),1 and one count of willful, deliberate, and
premeditated attempted murder (Pen. Code, §§ 664, subd. (a) & 187, subd. (a)). The jury
also found true gang and firearm enhancements as to both crimes (§§ 186.22, subd.
(b)(1)(C) & 12022.53, subds. (B)-(D)). On appeal, defendant contends: (1) regular and
undercover police officers elicited incriminating statements from him in violation of his
Fifth Amendment rights and the trial court erred in denying his motion to suppress those
statements; (2) the trial court erred in failing to suppress his involuntary confession in
violation of his Fourteenth Amendment right to due process; (3) the evidence was
insufficient to support findings that defendant’s gang was a “criminal street gang” within
the meaning of section 186.22, subdivision (f); and (4) if there was insufficient evidence
to support the gang enhancements, firearm enhancements could not be imposed under
section 12022.53. We affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On April 30, 2011, Jesus Piste-Naal was at a friend’s party on Eastwood Avenue
in Lennox. Shortly before midnight, Piste-Naal was standing in front of the house at the
property where the party was being held. Defendant approached on a scooter. He put the
scooter down in front of the house and walked along a driveway to the party at the back
of the property. Sergio Gomez was also at the party; defendant approached him.
Defendant said he was looking for someone to kill, then he said “Tripas” or “Lennox,”
and that he was looking for a gang member.2 Gomez told defendant it was a family party
and there were no gang members. Defendant showed Gomez a gun and again said he
wanted to kill someone. Gomez told defendant to calm down and leave. He escorted
defendant out. Gomez and Piste-Naal saw defendant walk south down Eastwood; Piste-
Naal saw defendant turn into a driveway. A few minutes later, Gomez and Piste-Naal


1      All further statutory references are to the Penal Code unless otherwise referenced.
2     At trial, a gang expert testified that “Tripas” is a derogatory name for the “Tepas
13” gang.

                                              2
heard several gunshots. Piste-Naal saw defendant running southbound; Gomez saw
someone running but could not tell who the person was.
       Just before midnight on April 30, Luis C. was in a house on Eastwood Avenue,
across the street from the home of Francisco Roman, who was known as “Little Man.”
He stepped onto the front porch and saw Roman sitting in the passenger seat of a silver
truck. Another man later identified as Francisco Macias was in the driver’s seat. Luis
saw defendant walk by on the sidewalk in front of the house where he was standing.
Defendant was wearing a baseball cap. Luis had seen defendant twice before in the area.
Defendant stopped and stared at the truck, then began shooting at it. He moved toward
the driver’s side of the truck as he shot, then ran away. Roman got out of the truck and
ran into his house.
       Defendant was a self-admitted member of the Krazy Crowd gang. Roman had the
abbreviated name of a rival gang, “SSP,” tattooed on the back of his head.
       Macias was found shot dead at close range in the truck. On the truck there were
bullet strikes on the back, driver’s side rear, rear window toward the middle and right
front passenger side, and front windshield. There were also bullet strikes on the front
door of Roman’s house, on the front porch, and on a chair on the porch. Law
enforcement officers found shell casings at the rear of the truck, and in a grassy area on
the driver’s side of the truck. A law enforcement officer found a scooter at the house
where the party had been.
       Law enforcement officers later interviewed Piste-Naal, Gomez, and Luis. Piste-
Naal described the person he had seen as “Latin,” “robust” or of medium build, between
20 and 22 years old, and around 1.65 meters tall. Piste-Naal said the man was wearing
dark clothing and a hooded jacket. Gomez described the man as “Latin,” between 22 and
25 years old,3 around five-seven to five-eight in height, around 190 pounds, with short
hair, and he was wearing a dark pair of pants, a cap, and a dark sweater with a hood. Luis

3     At the preliminary hearing, Gomez testified he told police the man he saw was
around 25 or 30 years old.


                                             3
told police the shooter was around six feet tall and 200 pounds, wearing a black shirt and
light-colored cargo shorts.
       In May 2011, Piste-Naal, Gomez, and Luis identified defendant’s picture from a
six-pack photographic lineup. Gomez noted the picture of defendant looked like the man
from the night of the shooting, except that night he did not have a mustache. Luis also
noted defendant did not have a mustache on the night of the shooting. Piste-Naal and
Gomez both identified defendant again at a preliminary hearing, and at trial. Luis
identified defendant at trial. At trial, Luis testified defendant was not wearing a “hoodie”
on the night of the shooting.4
       The scooter was swabbed for DNA. A partial DNA profile was generated from
the sample taken from the handlebars of the scooter and compared with a sample of
defendant’s DNA. A Los Angeles County Sheriff’s Department criminalist concluded
defendant was a possible source of the DNA found on the scooter. The criminalist
further concluded “[t]he random max probability estimate of this profile is one out of 18
million,” with 18 million representing: “[S]tatistically if I gather up a group of 18 million
people, at most there could be another person unrelated to [defendant] who can also have
contributed to this profile.”
       At trial, defendant offered expert testimony regarding the DNA evidence. The
defense expert opined the DNA sample used by the prosecution was insufficient to reach
any meaningful results. She concluded there was not enough data available to “even
begin to make a decision about whether someone is excluded or included” as a possible
source of the DNA swabbed from the scooter.




4      At trial, Gomez and Luis testified they did not see any facial tattoos on the man
they saw on the night of the shooting. Defendant has a facial tattoo. A homicide
detective involved in the case testified that when he first spoke to defendant in June 2011
he did not notice any facial tattoos; the tattoo was very faint. However, by the time of the
preliminary hearing the tattoo was much darker and noticeable.

                                              4
         The jury found defendant guilty of one count of murder and one count of
attempted murder. As to both counts, the jury also found true the allegation that
defendant personally used a firearm within the meaning of section 12022.53, subdivision
(b), he personally and intentionally discharged a firearm within the meaning of section
12022.53, subdivision (c), and he personally and intentionally discharged a firearm which
caused death to Macias within the meaning of section 12022.53, subdivision (d). The
jury further found true gang enhancements on both counts. (§ 186.22, subd. (b)(1)(C).)
The trial court sentenced defendant to a total prison term of 90 years to life.
                                       DISCUSSION
I.       No Reversible Error With Respect to Defendant’s Admissions
         Before defendant was charged with the crimes at issue in this case, but while he
was being held on another charge, police orchestrated an undercover operation to elicit
incriminating statements from him. Defendant made numerous inculpatory statements to
two undercover police officers who were posing as fellow inmates who had committed
crimes. The trial court denied defendant’s pre-trial motion to suppress the statements.
On appeal, defendant contends the undercover operation, and the subsequent admission
of his statements into evidence, violated his rights under the Fifth Amendment. He
further contends the police methods employed violated his right to due process and
produced involuntary admissions that should have been excluded. We find no reversible
error.
         A. Background: The Undercover Operation
         In June 2011, homicide detectives with the Sheriff’s Department organized an
undercover operation to investigate defendant’s involvement in the April 30 shootings.
Defendant was in custody on an unrelated matter. On June 9, two homicide detectives
met with defendant and advised him of his Miranda rights.5 Defendant admitted he was
a member of the Krazy Crowd gang. When the detectives said they wanted to talk about



5        Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

                                              5
a murder that had occurred on Eastwood Avenue, defendant refused to talk with them
further.
       On June 11, defendant was placed in a holding cell with two undercover deputy
sheriffs. After a little over an hour, the detectives had defendant escorted to an office
where they were waiting. As soon as defendant arrived at the office, “he wanted to turn
around and walk away.” The two detectives told him murder charges would be filed
against him. They had “a conversation with [defendant] earlier about Miranda,” and they
asked if he wanted to speak with them. One detective said: “If you want to talk to us, I’ll
Mirandize you,” but defendant walked away. He said he wanted nothing to do with the
detectives. As one of the detectives began showing defendant photographs related to the
crime, defendant again said he wanted nothing to do with the detectives and walked
away. Defendant said he wanted to talk to his lawyer.6




6     A portion of this discussion was recorded. It included the following colloquy:
“[Detective]: What do you think [defendant]? Want to look at the photos again?
[Defendant]: I want to speak to my lawyer.
[Detective]: There’s the man you killed right here. You shot him.
[Defendant]: I want to speak to my lawyer.
[Detective]: C’mon man.
[Defendant]: I don’t know what you’re talking about.
[Second Detective]: That’s cool with your lawyer.
[Detective]: What about Lil Man?
[Defendant]: I got nothing to say to you.
[Detective]: What about your fingerprints on the scooter?
[Defendant]: I don’t know what you’re talking about.
[Detective]: Want to see the scooter?
[Defendant]: I don’t know what you’re talking about?
[Detective]: How about the crime scene? It’s got your DNA all over it.
[Defendant: I don’t know what you’re talking about.
[¶]
[Defendant]: I’ve got nothing to say.
[Detective]: You’ve got nothing to say?
[Defendant]: I’ve got nothing to say to you.”


                                              6
       In a process described as “stimulation,” the detectives followed defendant back to
the holding cell. They told defendant they knew he had committed the murder, and they
were certain DNA evidence would reveal him to be the shooter. The detectives also
asserted they had witnesses to the crime, they knew he had approached and shot the
victim, they had his scooter and had DNA evidence from the scooter, and defendant had
missed “Little Man.” During this brief exchange, the detectives yelled at defendant and
said he would be arrested for murder. The point was to “amp him up to get him . . .
stimulated and whatever it would take just to give him enough information so that he
would think that we really did have him and to get him wound up when he was placed
back in the cell with the two undercover deputies.”7
       Defendant was returned to the holding cell with the two undercover deputy
sheriffs. Over the next approximately two and a half hours, the undercover officers
engaged defendant in conversation. Defendant made a number of incriminating
statements, as well as denials that he was involved in the murder.8 The undercover
officers commiserated with defendant, gave him advice such as not to tell the police
anything or get caught “slipping”, and suggested strategies defendant might adopt to fight
the murder charge, such as, “Okay, so earlier that day, you dropped that scooter, right?
So they can’t – they can’t get you on that bullshit, you know . . . I mean, you could’ve
given that scooter to a homie.” In this manner they also asked defendant about the details
of the murder.




7       One of the detectives testified he understood that after defendant said he wanted
an attorney, no statements he made to the detectives after that point could be used against
him. However, the idea was to get defendant in a “position where he wants to talk about
it,” and to give the undercover deputies something to talk about with defendant. The
detective testified the “stimulation” portion of the encounter lasted under four minutes.

8      The conversation also included topics such as defendant’s girlfriend, his son, his
brother, and his tattoos. At times, defendant sang, rapped, and cried.


                                             7
       In response to one officer’s question, defendant said the scooter was his. He
indicated with gestures that during the shooting he wore a sweatshirt or jacket covering
his arms. Defendant said he had the chance to go to Mexico after the murder, but did not
because he “lagged it.” One of the officers said he heard the detectives discussing the
case; he told defendant the detectives said they had a witness who saw defendant cross
the street and shoot at the victims. He asked if defendant’s head was covered during the
shooting:
       “[Deputy Castro]: Was your head covered when you fucking –
       [¶]
       [Defendant]: A hat.
       [Deputy Castro]: You had a hat on?
       [Defendant]: Yeah.
       [Deputy Castro]: Damn, homie. Fuck, I don’t know, homie.
       [Defendant]: It looks bad, huh?”

Although defendant expressed concern that the conversation might be recorded, he
continued talking with the officers after they dismissed the idea:
      “[Deputy Castro]: You can’t remember anything, anybody that might’ve been
around, you know? You didn’t fucking look or anything?
      [Defendant]: Yeah, I don’t like saying about this shit, we could be recorded, fool.
      [Defendant Navarro]: No, I talked that shit right there, dawg.
      [Defendant Castro]: I’ve been here many a times, homie, and fucking talked the
shit.
      [¶] . . . [¶]
      [Defendant]: That’s who’s saying I missed – I missed—That’s who’s trying to tell
me I missed Little Man.
      [Deputy Castro]: Did you fucking miss him, though?
      [Defendant]: Yeah, I missed Little Man. . . .”
       Defendant said he got rid of his clothes from the night of the shooting. When
asked if he had a “beef” with the victim, defendant said: “No, fool, just it is what it is,
fool, gang banging shit, dawg.” When asked what happened so that defendant did not
shoot Ramon, defendant answered, “I ran out,” and demonstrated walking backwards
with a gun while pulling the trigger. When one of the officers said defendant made a
mistake by missing Ramon, defendant said he believed Ramon was the person “snitching
the homie off.” An officer asked if Ramon had seen defendant’s face. Defendant

                                               8
answered: “I know that fool, he knows me, fool . . . . Like, where my mom lives, he lives
on around the corner fool. Like . . . he knows me, fool, like he knows – he knows me
well, fool . . . That fool’s a gangster, fool, I’m surprised if . . . it’s him saying it was me,
I’m surprised why. I don’t know, I wasn’t even there.”
       During the conversation, defendant said he would tell his lawyer to at least try to
get him a deal that would allow the possibility of parole. Defendant suggested he would
take a deal of 30 or 40 years. After admitting that he was “stressing,” and thinking about
his son, defendant said, “I wish I never went down that block, man.” He explained his
son might grow up without him and: “I lost my family over gangbanging, Holmes.”
       One of the officers asked if this was defendant’s first “beta,” or murder.
Defendant replied, “Like, the first fucking case I caught.” The officer asked, “Yeah, but
this is the first one you’ve done though?” Defendant answered: “Yeah, fool.” When
asked if defendant “got rid of his [shit]” following the incident, defendant responded by
gesturing that he threw the gun away. The officer replied, “That’s the most important
part, you got rid of your shit. What bus did you take right there?” Defendant gave the
bus number and described how he went to a friend’s house, got high, and fell asleep.
       At one point, another deputy sheriff who was not undercover, Torres, approached
the holding cell. Torres summoned defendant, then said: “They’re finishing up doing the
whole add charge on you. . . . You’re fucked, you know that? They got fucking witnesses
on you, they got a bunch of shit on you. You’re fucking yourself, all right? . . . I don’t
give a fuck. I don’t know you, I don’t care about you, but you’re fucked, all right? . . . .
They got a fucking case on you, I’m just giving you a head’s up.” Defendant asked what
the detectives had, and whether they said they had a witness. Torres answered: “They
have witnesses and they have your DNA.” Torres further said the witnesses saw
defendant drop the scooter. Defendant responded, “Well, no, they just put – that’s why
they got to prove the DNA.” Torres said, “What are you going to do, there’s fucking
witnesses. Do you know how this works?” Defendant responded, “yeah,” then added,
“That shit don’t mean shit, though, dawg, they got to –” Torres interrupted: “Okay, if
that’s how you think it works, then you’re—you’re in for a fucking rude awakening,

                                                9
buddy. They saw you, they saw you fucking walk off, they saw you with the fucking
pistol in your pocket, you’re fucked.”
       Sometime later, Torres returned to escort defendant to his housing facility.
Defendant asked if Torres would relay a message to the homicide detectives that he
would take a deal of “40 years and two strikes.”
       B. Motion to Exclude
       Before trial, defendant moved to exclude his statements to the undercover officers.
Defendant argued the police tactics violated his Sixth Amendment right to counsel and
his Fifth Amendment rights. The trial court denied the motion. Defendant also moved to
exclude his statement to Torres offering to plead guilty to 40 years and two strikes.
Defendant argued the statement would be cumulative and unduly prejudicial. The court
denied the motion, finding that under Evidence Code section 352, the statement was
highly probative and not unduly prejudicial.
       C. Analysis
       As we understand defendant’s argument, defendant asserts his recorded
statements should have been excluded because after the two detectives began an
interrogation and defendant asserted his right to have counsel present, the undercover
officers continued the custodial interrogation, in violation of defendant’s rights under the
Fifth Amendment. Under United States Supreme Court and California Supreme Court
precedent, we must reject this argument.
       i. Applicable Legal Principles
       “In reviewing the trial court’s denial of a suppression motion on Miranda–
Edwards grounds,[9] ‘it is well established that we accept the trial court’s resolution of


9      Edwards v. Arizona (1981) 451 U.S. 477 (Edwards). In Edwards, the court held
that once an accused invokes the right to have counsel present during custodial
interrogation, “a valid waiver of that right cannot be established by showing only that he
responded to further police-initiated custodial interrogation even if he has been advised of
his rights.” (Id. at p. 484, fn. omitted.) The court further held that “an accused . . .
having expressed his desire to deal with the police only through counsel, is not subject to
further interrogation by the authorities until counsel has been made available to him,

                                             10
disputed facts and inferences, and its evaluations of credibility, if supported by
substantial evidence. We independently determine from the undisputed facts and the
facts properly found by the trial court whether the challenged statement was illegally
obtained.’ [Citation.] To the extent mixed questions of fact and law are present, they are
reviewed de novo if predominantly legal and for substantial evidence if predominantly
factual.” (People v. Gamache (2010) 48 Cal.4th 347, 385.) Here, the historical facts
were not disputed. Thus we independently review the trial court’s ruling that defendant’s
recorded statements were not illegally obtained.
       “To protect the constitutional privilege against self-incrimination, the Miranda
rule requires that before the police may question the defendant during a custodial
interrogation, the defendant must be advised of the right to remain silent and to an
attorney and that any statements made may be used against him or her in court.
[Citation.] If the defendant invokes the right to silence or to an attorney, the interrogation
must cease. [Citation.] [¶] Generally, statements elicited in violation of these Miranda
principles may not be used against the defendant at trial. . . . This exclusionary rule is
applied in prophylactic fashion to deter coercive investigative questioning and advance
the trustworthiness of trial evidence, even if the defendant’s statements were voluntary
apart from the Miranda violation.” (People v. Andreasen (2013) 214 Cal.App.4th 70, 86
(Andreasen); Edwards, supra, 451 U.S. at pp. 482, 485.)
       However, “[t]he prophylactic Miranda protections are triggered only if a
defendant is subjected to a custodial interrogation.” (Andreasen, at p. 86.)
“Interrogation . . . . refers to questioning initiated by the police or its functional
equivalent, not voluntary conversation. [Citation.] ‘ “Volunteered statements of any
kind are not barred by the Fifth Amendment . . . .” ’ [Citations.] The ‘functional
equivalent’ to express questioning involves police-initiated deceptive techniques
designed to persuade or coerce a criminal defendant into making inculpatory statements.



unless the accused himself initiates further communication, exchanges, or conversations
with the police.” (Id. at pp. 484-485.)

                                               11
[Citation.] The determination of whether an action is reasonably likely to elicit an
incriminating response focuses primarily on the perceptions of the suspect, rather than the
intent of the police. [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 432, citing
Rhode Island v. Innis (1980) 446 U.S. 291, 299-301 (Innis) and Miranda, supra, 384 U.S.
at p. 478.)
       Since the focus of this analysis is on the perceptions of the defendant, courts have
concluded a defendant’s conversation with someone the defendant does not know is a
government agent is not custodial interrogation for purposes of Miranda. Thus, in
Illinois v. Perkins (1990) 496 U.S. 292, 296-300 (Perkins), the Supreme Court concluded
Miranda warnings were not required when the police placed the defendant in a cell with
an undercover agent who then elicited incriminating statements from the defendant.10
The court explained: “The warning mandated by Miranda was meant to preserve the
privilege during ‘incommunicado interrogation of individuals in a police-dominated
atmosphere.’ [Citation.] . . . . [¶] Conversations between suspects and undercover agents
do not implicate the concerns underlying Miranda. The essential ingredients of a ‘police-
dominated atmosphere’ and compulsion are not present when an incarcerated person
speaks freely to someone whom he believes to be a fellow inmate. Coercion is
determined from the perspective of the suspect. [Citations.] When a suspect considers
himself in the company of cellmates and not officers, the coercive atmosphere is
lacking.” (Perkins, at p. 296; People v. Davis (2005) 36 Cal.4th 510, 554 (Davis).)




10     In Perkins, police wished to investigate the claims of an inmate (informant) that
the defendant had admitted committing a previously unsolved murder. Police tracked the
defendant to a jail where he was being held on a battery charge; they arranged to have
him placed in a cellblock with an undercover agent and the informant. While pretending
to plan an escape with the defendant and the informant, the undercover agent asked the
defendant if he had ever killed anyone. The defendant said he had and described the
murder at length. The undercover agent did not give the defendant Miranda warnings
before the conversations. (Perkins, at pp. 294-295.)

                                            12
       Perkins is consistent with the conclusion of our high court in People v. Williams
(1988) 44 Cal.3d 1127, that Miranda “has never been applied to conversations between
an inmate and an undercover agent. This is because Miranda warnings serve to dispel the
coercive effect of police custodial questioning. Both adjectives are crucial: Miranda does
not apply to noncustodial police interrogation or to nonpolice custodial interrogation.
When a defendant talks to a fellow inmate, the coercive atmosphere of custodial police
interrogation is absent.” (Williams, at pp. 1141-1142.)
       Since Perkins, the California Supreme Court and courts of appeal in this state have
repeatedly concluded that even after a defendant has invoked his right to remain silent or
to have the assistance of counsel, the defendant’s subsequent statements to a person he
does not know is an explicit or unwitting government agent—e.g., a relative or friend
cooperating with police, or a fellow suspect who is knowingly or unknowingly being
recorded by police—do not implicate Miranda because such statements are not the
product of “custodial interrogation.”
       For example, in People v. Thornton, supra, 41 Cal.4th at pages 432-433, after the
defendant invoked his Miranda rights, police arranged a conversation between the
defendant and his grandmother; the defendant voluntarily engaged in conversation with
her. Police recorded the conversation with the grandmother’s knowledge. The reviewing
court found the conversation was not interrogation or its functional equivalent, thus there
was no Fifth Amendment violation. In Davis, after the defendant invoked his Miranda
rights, police recorded a conversation between the defendant and his cellmates in which
he made incriminating statements. The reviewing court explained that when the situation
was viewed from the defendant’s perspective, when he made statements to his cellmates
there was “no longer a coercive, police-dominated atmosphere, and no official
compulsion for him to speak.” (Davis, supra, 36 Cal.4th at pp. 553-555.) As a result,
admission of the incriminating statements did not violate his rights under Miranda.
(See also People v. Jefferson (2008) 158 Cal.App.4th 830, 840-841 [after defendants
invoked their Miranda rights police placed them in a cell and recorded their conversation;
no Miranda violation because there was no interrogation].) In People v. Mayfield (1997)

                                            13
14 Cal.4th 668, 757-758, after the defendant invoked his Miranda rights and requested an
attorney, he asked to speak with his father. Police recorded the conversation and also
asked the father to repeat what the defendant had said. The reviewing court concluded
the statements the defendant made to the father were not the product of custodial
interrogation.
       In People v. Plyler (1993) 18 Cal.App.4th 535, after the defendant asserted his
right to counsel, police orchestrated a call by the defendant to one of his victims, with the
victim’s knowledge and cooperation. The appellate court concluded the defendant’s
recorded statements to the victim were not the product of police custodial interrogation.
The court reasoned that even if the defendant had been coerced into placing the call,
“he did not know [the victim] was working with the police. Under Perkins, absent such
knowledge there is no reason to assume he might feel coerced and no Fifth Amendment
violation occurred.” (Id. at pp. 544-545, fn. omitted.)
       Similarly, in People v. Guilmette (1991) 1 Cal.App.4th 1534, 1538-1542, after the
defendant invoked his Miranda rights, police recorded the defendant’s telephone calls to
the victim, with the victim’s cooperation. During the calls the victim asked the defendant
questions suggested by police; the defendant also volunteered statements and answered
the victim’s independent questions. The court found there was no Miranda violation
because there was no custodial police interrogation. Although it was conceded that the
victim was acting as a government agent, the court noted the defendant initiated the
telephone contact, sought out the conversation, and was not forced to speak with the
victim. The court explained: “Since appellant was not forced to contact the victim and
since he did not know that [the victim] was acting as a police agent, there was no ‘police-
dominated atmosphere’ [citation], there were no ‘inherently compelling pressures’
[citation], and there was no ‘coercive atmosphere’ [citation].” (Id. at p. 1540.) The court
further rejected the argument that the defendant’s prior invocation of his rights changed
the analysis. In the absence of custodial interrogation, the court reasoned “the fact that
the conversation occurred after an invocation of rights is without legal significance.”
(Id. at p. 1541.) (See also People v. Gonzales and Solis (2011) 52 Cal.4th 254, 272-273,

                                             14
283-284 [no custodial interrogation where fellow inmate and gang member wore a wire
and discussed crimes with defendant; no Miranda warnings were required]; People v.
Tate (2010) 49 Cal.4th 635, 681, 685-687 [in the midst of a custodial interrogation (after
defendant waived Miranda rights), defendant’s girlfriend asked to speak with him then
reported to police what he said; police were not required to provide new Miranda
warnings before the conversation with the girlfriend; even in the process of a custodial
interrogation, a voluntary statement to someone the suspect does not believe is a police
officer or agent does not involve the coercive atmosphere of police questioning in
custody].)
       ii. Discussion
       At the outset, we acknowledge the seeming incongruity of finding admissible
incriminating statements secured when the police initiate a custodial interrogation, the
defendant unequivocally invokes the right to remain silent and the right to counsel, then
undercover police officers take up the interrogation, doing what their uniformed
colleagues could not. However, while the parties have not cited, and our research has not
uncovered, any case concerning the admissibility of statements elicited by undercover
officers after the defendant has invoked the right to remain silent or the presence of an
attorney, and remains in custody, the applicable legal principles are well developed. The
above described authorities govern the result in this case.
       As the California Supreme Court explained in Davis, after a defendant invokes his
Miranda rights, police interrogation must cease, which means the police may not engage
in conduct “ ‘reasonably likely’ to elicit an incriminating response from the suspect.”
(Davis, supra, at p. 554.) To determine “whether police conduct [is] ‘reasonably likely’
to elicit an incriminating response from the suspect, we consider primarily the
perceptions of the suspect rather than the intent of the police. [Citations.] Because the
dual elements of a police-dominated atmosphere and compulsion are absent when the
defendant is unaware that he is speaking to a law enforcement officer, however, Miranda
is inapplicable when the defendant does not know that the person he is talking to is an



                                             15
agent of the police.” (Ibid, citing Arizona v. Mauro (1987) 481 U.S. 520, 527, Innis,
supra, 446 U.S. at p. 301, and Perkins, supra, 496 U.S. at pp. 296-300.)
       Here, as in Perkins, and as in cases such as Davis, defendant “ ‘consider[ed]
himself in the company of cellmates and not officers,’ and the coercive atmosphere of
custodial interrogation was lacking. [Citation.] Viewing the situation from defendant’s
perspective (see Arizona v. Mauro, supra, 481 U.S. at p. 527; Rhode Island v. Innis,
supra, 446 U.S. at p. 301), when he made these statements to his cellmates there was no
longer a coercive, police-dominated atmosphere, and no official compulsion for him to
speak.” (Davis, supra, at p. 555.)
       Defendant attempts to distinguish Perkins by asserting the detectives’
“stimulation” technique, combined with the undercover officers’ lengthy conversation
with defendant, created a police-dominated atmosphere not present in Perkins.11 We are
not persuaded. Whatever defendant’s motivation for conversing with the undercover
officers, there was no “official compulsion” for him to speak to them because he did not
believe they were police officers. Defendant further misconstrues Perkins when he
asserts the court “specifically found no ‘interplay between police interrogation’ and the
jail cell atmosphere where the defendant made his incriminating statements.” Instead, the
Perkins “interplay” language concerned police interrogation and police custody, and the
coercive effects when custody and official interrogation are combined. Thus, the court
explained:
              “It is the premise of Miranda that the danger of coercion results
       from the interaction of custody and official interrogation. We reject the
       argument that Miranda warnings are required whenever a suspect is in
       custody in a technical sense and converses with someone who happens to
       be a government agent. Questioning by captors, who appear to control the
       suspect’s fate, may create mutually reinforcing pressures that the Court has
       assumed will weaken the suspect’s will, but where a suspect does not know
       that he is conversing with a government agent, these pressures do not exist.
       The state court here mistakenly assumed that because the suspect was in
       custody, no undercover questioning could take place. When the suspect has

11     We note this is defendant’s only argument to distinguish Perkins.

                                            16
       no reason to think that the listeners have official power over him, it should
       not be assumed that his words are motivated by the reaction he expects
       from his listeners. ‘[W]hen the agent carries neither badge nor gun and
       wears not “police blue,” but the same prison gray’ as the suspect, there is
       no ‘interplay between police interrogation and police custody.’ [Citation.]
              Miranda forbids coercion, not mere strategic deception by taking
       advantage of a suspect’s misplaced trust in one he supposes to be a fellow
       prisoner. As we recognized in Miranda: ‘[C]onfessions remain a proper
       element in law enforcement. Any statement given freely and voluntarily
       without any compelling influences is, of course, admissible in evidence.’
       [Citation.] Ploys to mislead a suspect or lull him into a false sense of
       security that do not rise to the level of compulsion or coercion to speak are
       not within Miranda’s concerns.” (Perkins, at p. 297.)

       The undercover officers in this case were persistent and effective questioners.
But there was no evidence they coerced defendant into speaking with them. He had no
reason to believe they had any official power over him, nor did they threaten him in any
way. It is not the aggressiveness of the “official” police conduct in this case that matters
for Miranda purposes, rather it is what compelled defendant to inculpate himself in
conversations with the undercover officers. With respect to the presence or absence of
“coercion” within the meaning of Miranda, we find no basis to distinguish this case from
Perkins.
       Moreover, defendant does not distinguish or even address the California cases in
which courts have applied Perkins and concluded that, despite circumstances in which
the defendant may have been intimidated by official police questioning or the
circumstances of being in custody, and in which police have taken advantage of such
circumstances to secure defendant’s incriminating statements to someone he does not
believe to be a government agent, there is no Miranda-Edwards violation because of the
absence of custodial interrogation. We conclude the trial court did not err in denying
defendant’s motion to exclude his recorded statements to undercover officers.
       D. Statements to Torres
       Defendant additionally argues the court erred in admitting his statement to Torres
that he would be willing to plead guilty in exchange for a sentence of 40 years and two


                                             17
strikes. Defendant contends that under Edwards, Torres’s statements to defendant were
improper, and defendant’s subsequent statements could not be used against him.
We conclude defendant forfeited this argument by failing to raise it in the trial court and,
even if admission of the statements was error, it was harmless beyond a reasonable doubt.
       As explained above, after a defendant invokes his right to have the assistance of
counsel, interrogation must cease. Thereafter, police may not engage in conduct
“ ‘reasonably likely to elicit an incriminating response from the suspect.’ ”
(Davis, supra, at p. 554.) Statements elicited in violation of this Miranda principle may
not be used against the defendant at trial. (Andreasen, supra, 214 Cal.App.4th at p. 86.)
       Yet, in this case, defendant did not object to the admission of his statements to
Torres on the ground that they were elicited in violation of his Fifth Amendment rights.
Defendant did not include the statements to Torres in his written motion to exclude or in
his argument on the motion. Instead, he later argued only that the statements should be
excluded under Evidence Code section 352 because they were cumulative and unduly
prejudicial. This general evidentiary objection was not sufficient to preserve the
Constitutional objection defendant now raises on appeal because it did not provide the
trial court the “opportunity to resolve material factual disputes and make necessary
factual findings.” (People v. Scott (2011) 52 Cal.4th 452, 482.) The argument is waived.
       Even had defendant preserved the argument, and even if admission of the
statements was in error, it is apparent any error was harmless beyond a reasonable doubt.
For reasons explained above, the trial court could properly admit defendant’s recorded
statements to the undercover officers. In the recording, defendant at least twice said he
would be willing to accept a 30 or 40-year sentence. Thus, the admission of a similar
statement to Torres, even if an error, did not contribute to defendant’s conviction in light
of the entire record, and was therefore harmless beyond a reasonable doubt. (Davis,
supra, 36 Cal.4th at p. 555; People v. Cunningham (2001) 25 Cal.4th 926, 994.)




                                             18
        E. No Due Process Violation
        Finally, defendant contends his rights to due process were violated because the
law enforcement tactics used in this case produced an involuntary confession that should
have been excluded. We disagree.
        As an initial matter, this argument is also forfeited. Defendant did not raise the
alleged involuntariness of his statements as a basis for their exclusion. (People v. Tully
(2012) 54 Cal.4th 952, 992.) But even had defendant raised this issue below, we would
reject it.
        “ ‘ “A confession may be found involuntary if extracted by threats or violence,
obtained by direct or implied promises, or secured by the exertion of improper influence.
[Citation.] Although coercive police activity is a necessary predicate to establish an
involuntary confession, it ‘does not itself compel a finding that a resulting confession is
involuntary.’ [Citation.] The statement and the inducement must be causally linked.
[Citation.]” [Citation].’ [Citation.]” (People v. Linton (2013) 56 Cal.4th 1146, 1176.)
        In this case, while the homicide detectives may have adopted aggressive,
confrontational tactics, defendant made no admissions or confession to the detectives.
(People v. Dement (2011) 53 Cal.4th 1, 28 [defendant could not be prejudiced by
interrogation which, even if unlawful, produced no statements].) Defendant did make
admissions to the undercover officers, sometimes in response to their friendly, but
persistent questions, but there is no evidence those statements were obtained by express
or implied threats, promises of leniency, or any other coercive behavior. (Tate, supra,
49 Cal.4th at p. 684 [use of deceptive statements during an interrogation does not render
confession involuntary unless the deception is of a type reasonably likely to procure an
untrue statement].) Indeed, defendant did not believe he was speaking to government
agents, and he had no reason to believe the undercover deputies had any official power
over him. (People v. Atchley (1959) 53 Cal.2d 160, 171 [defendant’s recorded statements
to insurance agent who was a former police officer, and was acting in concert with the
police, were not involuntary].) Thus, there is no basis to conclude the recorded
statements defendant made to the undercover officers were the result of his will being

                                              19
overborne by police coercion. (People v. Dykes (2009) 46 Cal.4th 731, 752; People v.
Jenkins (2004) 122 Cal.App.4th 1160, 1173-1174 [no coercion rendering admissions
involuntary where defendant thought he was talking to a friend and was unaware fellow
suspect was secretly recording at behest of the police].)
       Moreover, even if the homicide detectives’ tactics could be deemed coercive,
defendant’s statements to the undercover officers were only indirectly related to the
homicide detectives’ questions or tactics.12 “A confession is not rendered involuntary by
coercive police activity that is not the ‘motivating cause’ of the defendant’s confession.
[Citation.]” (Linton, supra, 56 Cal.4th at p. 1176.) There is no evidence defendant’s
statements to the undercover officers were coerced by threats or false promises, rather
than being given freely and voluntarily to people he believed were fellow suspects and
gang members.
       We therefore reject defendant’s argument that the admission of the statements
violated his right to due process.13
II.    Sufficient Evidence Supported the Jury’s True Findings on the Gang
       Enhancements
       A. Background: Gang Expert Testimony
       At trial, Hawthorne Police Detective Antonio Robles testified as a gang expert.
Robles’s experience as a gang expert included 40 hours of training at the Los Angeles

12     We note that the “stimulation,” in which the detectives confronted defendant with
evidence of the crime and asserted he was guilty, lasted only a brief period, and consisted
mainly of their presentation of evidence to defendant and assertions he was guilty.
“ ‘ “The courts have prohibited only those psychological ploys which, under all the
circumstances, are so coercive that they tend to produce a statement that is both
involuntary and unreliable.” ’ [Citation.]” (People v. Williams (2010) 49 Cal.4th 405,
443.)

13      Defendant’s only argument under the Fourteenth Amendment concerns
involuntariness due to his will being overborne. He does not assert any other due process
argument relating to the use of undercover police officer questioning after an invocation
of the right to the assistance of counsel.


                                             20
County Sheriff’s Academy; three years investigating crimes involving gang members and
gang assaults at the Men’s Central Jail and interviewing inmates about specific gang
tattoos, graffiti, and crimes; training within the City of Hawthorne Police Department
about gangs specific to the city and environs; and regular trainings regarding gang and
gang-crime related issues. In his 10 years at the Hawthorne Police Department, Robles
had worked assignments with a gang enforcement team and conducted investigations
regarding juvenile gang members. At the time of trial he was a gang intelligence
detective for the department and a member of the South Bay Gang task force. He had
testified as a gang expert 20 times.
       Robles testified that defendant was a self-admitted member of the Krazy Crowd
gang. Robles was familiar with the Krazy Crowd gang due to his personal contacts with
members of the gang and discussions with gang members about the gang, including their
current “wars or enemies.” Robles had also investigated and assisted in investigating
crimes committed by or against Krazy Crowd members. He had reviewed police reports,
field interview cards, and photographs of Krazy Crowd gang members. Robles testified
the gang had been in existence between 10 and 15 years, and he described the territory
claimed by the gang. According to Robles, the gang has approximately 50 to 60
members; he described their common hand signs, and the abbreviations members use in
tagging and tattoos.
       Robles opined “the primary crimes or activities of Krazy Crowd range from . . .
gang vandalism to assaults, robberies, weapons possessions, narcotics violations,
shootings, attempted murders.” He identified two crimes committed by individuals he
opined were Krazy Crowd gang members: a robbery in August 2007 and an unlawful
possession of a firearm in December 2008. On cross-examination, Robles testified he
could not recall if any “documented [Krazy Crowd] members” had been convicted of
murder.




                                            21
       Robles testified that one of the Krazy Crowd gang’s rivals is Tepa 13, referred to
by its enemies as “Tripas.” He also testified that the Southside Players gang was a
primary enemy gang of Krazy Crowd; some members used “SSP” as a tattoo.14 When
presented with a hypothetical mirroring the facts of the case, Robles opined the murder
and attempted murder were committed to benefit the Krazy Crowd gang.
       B. Discussion
       On appeal, defendant contends the evidence did not establish the Krazy Crowd
gang is a “criminal street gang,” in that 1) there was insufficient evidence that the gang’s
members have engaged in a pattern of criminal gang activity; and 2) there was
insufficient evidence that one of the gang’s primary activities is a crime enumerated in
the gang enhancement statute. We disagree.
       “In determining whether the evidence is sufficient to support a conviction or an
enhancement, ‘the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ [Citations.] . . . . This standard
applies to a claim of insufficiency of the evidence to support a gang enhancement.
[Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224 (Vy).)
       i. Gang Enhancement Statute
       Section 186.22, subdivision (b)(1), provides for an enhanced sentence for “any
person who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members[.]”
       Subdivision (f) defines “criminal street gang” as “any ongoing organization,
association, or group of three or more persons, whether formal or informal, having as one
of its primary activities the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a



14    As noted above, at trial it was established that Francisco Roman, the attempted
murder victim, had “SSP” tattooed on the back of his head.

                                             22
common name or common identifying sign or symbol, and whose members individually
or collectively engage in or have engaged in a pattern of criminal gang activity.”
(§ 186.22, subd. (f).)
       Subdivision (e) defines “pattern of criminal gang activity” as “the commission of,
attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more of the following offenses, provided at least one
of these 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 were
committed on separate occasions, or by two or more persons . . . .” (§ 186.22, subd. (e).)
        The subdivision sets forth 33 enumerated crimes. The list includes assault with a
deadly weapon or by means of force likely to produce great bodily injury (§ 186.22, subd.
(e)(1); § 245); robbery (§ 186.22, subd. (e)(2); § 211, et seq.); unlawful homicide (§
186.22, subd. (e)(3); § 187, et seq.); the sale, possession for sale, transportation,
manufacture, offer for sale, or offer to manufacture controlled substances (§ 186.22,
subd. (e)(4); Health & Saf. Code, §§ 11054-11058); certain types of shootings (§ 186.22,
subd. (e)(5)-(6); §§ 246, 12034, subds. (a) & (b)); felony vandalism (§ 186.22, subd.
(e)(20); § 594, subd. (b)(1)); and certain firearm possession crimes (§ 186.22, subds.
(e)(23) & (31); §§ 12101, subd. (a)(1), 29610, 12021, 29800, et seq.).
       Thus, among other things, to establish the applicability of a gang enhancement, the
People must prove the alleged gang is an organization of persons that has engaged in one
or more of the enumerated crimes as a “primary activity.” The People must also show
that the group’s members have engaged in a pattern of criminal gang activity by showing
the commission, attempted commission, or conviction of two or more enumerated crimes,
within the specified time period, that were either committed on separate occasions, or by
two or more persons (“predicate offenses”).
       ii. Pattern of Criminal Gang Activity
       Defendant asserts the People did not establish a pattern of criminal gang activity.
Although the People offered evidence that two Krazy Crowd gang members committed
enumerated crimes in 2007 and 2008, defendant contends this was insufficient to show a

                                              23
“pattern of criminal gang activity” because there was no evidence the defendants were
gang members at the time the crimes were committed, or that the crimes were gang-
related crimes.
       However, as defendant acknowledges, this argument was considered and rejected
in People v. Augborne (2002) 104 Cal.App.4th 362 (Augborne). Although defendant
urges us to disagree with Augborne, we find its reasoning persuasive. As in this case, the
defendant in Augborne argued that “in order for the section 186.22 enhancement to apply,
the persons perpetrating the predicate offenses must be gang members when the crimes
were committed.” (Id. at p. 366.) Although the prosecutor offered expert testimony
establishing the predicate offenses, there was no evidence that the persons committing the
crimes were gang members at the time the crimes were committed. (Id. at p. 370.) The
Augborne court analyzed section 186.22 to resolve the defendant’s claim. Employing the
usual rules of statutory interpretation, the court explained that section 186.22 is
unambiguous. “[N]one of the elements of the gang enhancement statute require the two
or more persons committing the two predicate crimes be gang members at the time the
offenses were committed. Defendant’s legal contention that the two section 186.22,
subdivision (e) predicate crimes had to be committed by two persons when they were
gang members requires we add an additional element to section 186.22, something we are
prohibited from doing.” (Id. at p. 375.)
       The court was further guided by the California Supreme Court’s analysis in
People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley). In Gardeley, the court considered
whether “the prosecution must establish not only the requirements for predicate offenses
set forth in the statute, but also that each such offense was committed for the benefit of, at
the direction of, or in association with the gang.” (Id. at p. 621.) The court analyzed the
statutory language, which it found was clear and unambiguous, and concluded nothing in
the language of the statute suggested the Legislature intended to require “the ‘two or
more’ predicate offenses to have been committed ‘for the benefit of, at the direction of, or
in association with’ the gang.” (Ibid.) The court further noted the Legislature made clear
that crimes are only subject to increased punishment if they are “gang related” by

                                             24
including the “for the benefit of, at the direction of, or in association with” language in
section 186.22, subdivision (b)(1). The Legislature did not include similar language in
section 186.22, subdivision (e) describing the predicate offenses. This omission
supported the conclusion that the Legislature did not intend that predicate offenses must
be “gang related.” (Id. at pp. 621-622.)
       Thus, the Augborne court reasoned: “Gardeley holds that predicate offenses need
not have been committed for the benefit of, at the direction of, or in association with the
gang. It reasonably follows then that the prosecutor need not demonstrate that the two or
more individuals who committed the predicate crimes were gang members at the time the
offenses were committed.” (Augborne, at p. 375.)
       Defendant contends Augborne is incorrectly decided because the court’s reasoning
ignores the statute’s use of the term “pattern of criminal gang activity.” Defendant
asserts the use of “gang” indicates that crimes can only qualify as predicate offenses if
there is evidence they were committed by persons who were gang members at the time
the crimes were committed. However we agree with the Augborne court that this
interpretation requires the addition of words to the otherwise clear language of the statute.
The statute itself defines “pattern of criminal gang activity.” The definition is “the
commission of, attempted commission of, conspiracy to commit, or solicitation of,
sustained juvenile petition for, or conviction of two or more of the” enumerated offenses,
within the specified time period, “and the offenses were committed on separate
occasions, or by two or more persons.” We decline to add language to the statute when
the Legislature did not see fit to do so. The People were not required to establish the
Krazy Crowd gang members who committed the predicate offenses were gang members
at the time the offenses were committed.




                                             25
       iii. CALCRIM No. 1403 did not prevent the jury from considering the
evidence offered to determine whether the People established the “pattern of
criminal gang activity” element
       Defendant further contends the standard instruction limiting the jury’s use of gang
evidence prevented it from having substantial evidence upon which to find a “pattern of
criminal gang activity.” We find no merit in this argument.
       As described above, the People offered the testimony of a gang expert, Robles, at
trial. Robles described the Krazy Crowd gang, its history, the gang’s activities, its
territory and membership, and two predicate offenses. Evidence regarding gangs also
came in through the recording of defendant’s conversation with the undercover officers,
and other witnesses in relation to the charged crimes. The trial court instructed the jury
with CALCRIM No. 1403, which as given in this case, provided: “You may consider
evidence of gang activity only for the limited purpose of deciding whether: The
defendant acted with the intent, purpose, and knowledge that are required to prove the
gang-related crimes; or, the defendant had a motive to commit the crimes charged.
You may also consider this evidence when you evaluate the credibility or believability of
a witness and when you consider the facts and information relied on by an expert witness
in reaching his or her opinion. You may not consider this evidence for any other purpose.
You may not conclude from this evidence that the defendant is a person of bad character
or that he has a disposition to commit crimes.”
       Defendant does not argue the jury should not have been able to consider the gang
evidence in determining whether the People established a pattern of criminal gang
activity with respect to the gang allegation. Thus, as we understand his argument,
defendant contends the instruction misdirected the jury, thereby ensuring the jury’s true
finding on the gang allegation was based on insufficient evidence.
       We note that the standard instruction prompts the court to instruct the jury that it
may consider evidence of gang activity for the limited purpose of deciding whether “the
defendant acted with the intent, purpose, and knowledge that are required to prove the
gang-related ([crime[s]/ [and] enhancement[s]/ [and] special circumstance allegations)

                                             26
charged.” (CALCRIM No. 1403.) In this case, it may have been more accurate for the
trial court to include “enhancements” in the instruction. However, when reviewing a
purportedly erroneous instruction, our concern is whether, taking all of the instructions
together, it is reasonably likely the court’s modifications confused the jury or caused it to
misconstrue or misapply the law. (People v. Thornton, supra, 41 Cal.4th at p. 436;
People v. Snow (2003) 30 Cal.4th 43, 97.)
       It is not reasonably likely that the court’s rendition of CALCRIM No. 1403
confused the jury or caused it to misapply the instruction. The court instructed the jury at
length regarding the gang enhancement and the elements necessary for a true finding.
We have no doubt the jury understood it was to consider the gang evidence offered to
make a determination on the enhancement, as well as the underlying crimes charged.
Although the instruction referred only to the “gang-related crimes,” rather than the crimes
and the gang allegation, it is not reasonably likely that the jury construed the instruction
as forbidding them from considering the gang evidence obviously introduced to prove up
the gang allegation. We reject defendant’s argument.
       iv. The gang expert’s testimony provided sufficient evidence for the jury to
conclude the Krazy Crowd gang engaged in an enumerated offense as one of its
primary activities
       1. “Primary” Activities
       Defendant argues Robles’s testimony regarding the Krazy Crowd gang’s “primary
activities” was insufficient for the jury to find the gang allegation true because there was
no evidence of the gang’s other activities. We disagree. Several courts have concluded
an expert’s opinion, properly supported by personal investigation and knowledge, may be
sufficient to establish that one of a gang’s primary activities is the commission of one of
the enumerated crimes. (See Gardeley, supra, 14 Cal.4th at pp. 619-620; Vy, supra, 122
Cal.App.4th at p. 1226; People v. Duran (2002) 97 Cal.App.4th 1448, 1465-1466.) An
expert may properly opine regarding a gang’s primary activities. Encompassed in such
an opinion, and the use of the word “primary,” is the expert’s view that the activity
described is indeed a chief or principal occupation of the gang. (People v. Sengpadychith

                                             27
(2001) 26 Cal.4th 316, 323 (Sengpadychith).) So long as the opinion is reasonable,
which is to say supported by an adequate foundation of personal knowledge or other
reliable information, the People need not also offer evidence of the gang’s other, non-
primary activities, requiring the jury to itself conduct a comparative analysis to decide
whether an activity is primary.
       Indeed, in Sengpadychith, the court explained: “Sufficient proof of the gang’s
primary activities might consist of evidence that the group’s members consistently and
repeatedly have committed criminal activity listed in the gang statute. Also sufficient
might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605.”
(Sengpadychith, supra, at p. 324.) While the People could have attempted to prove the
Krazy Crowd gang’s primary activities by offering evidence of all of its activities and
their frequency so as to allow the jury to determine for itself whether the gang committed
one or more of the enumerated offenses as its primary activities, it was equally sufficient
for the People to offer an expert opinion on the issue. (People v. Martinez (2008) 158
Cal.App.4th 1324, 1330.) Here, Robles’s opinion was based on his personal contacts
with members of the gang, discussions with gang members regarding the gang, his
personal investigation of crimes committed by or against Krazy Crowd members, and his
personal review of police reports regarding Krazy Crowd gang members. He had training
and experience as a gang expert. The jury could reasonably credit Robles’s opinion,
based on his expertise, that the Krazy Crowd gang’s primary activities included some of
the enumerated offenses. Substantial evidence supported the jury’s finding that the
Krazy Crowd gang’s primary activities included statutorily enumerated criminal offenses.
       2. Gang-related
       Defendant next contends that, in addition to establishing the Krazy Crowd gang
has as one of its primary activities one or more of the statutorily enumerated crimes, the
prosecution was also required to prove these crimes are or have been gang-related.
We reject this argument because the statute contains no such requirement. The “primary
activities” element is one part of what the People must prove to establish the gang at issue
is a “criminal street gang.” As set forth in the statute and explained above, “the ‘criminal

                                             28
street gang’ component of a gang enhancement requires proof of three essential elements:
(1) that there be an ‘ongoing’ association involving three or more participants, having a
‘common name or common identifying sign or symbol’; (2) that the group has as one of
its ‘primary activities’ the commission of one or more specified crimes; and (3) the
group’s members either separately or as a group ‘have engaged in a pattern of criminal
gang activity.’ [(Gardeley, supra, 14 Cal.4th at p. 617.)]” (Vy, supra, 122 Cal.App.4th at
p. 1222.) Under the plain language of the statute there is no additional requirement that
the People show the group has as one of its primary activities the “gang-related”
commission of one or more of the enumerated crimes. The Legislature has decided how
to define “criminal street gang” in the gang enhancement statute. We decline to read into
the statute additional terms the Legislature could have included, but did not. (Gardeley,
at pp. 621-622.)
       3. Not improperly conclusory or overbroad
       Finally, defendant contends Robles’s testimony was insufficient to support the
“primary activities” finding because it was conclusory, not specific, and overbroad.
       In support of the assertion that Robles’s testimony was conclusory and not
specific, defendant relies on In re Alexander L. (2007) 149 Cal.App.4th 605
(Alexander L.). However, Alexander L. is distinguishable and provides a helpful contrast.
In Alexander L., the only evidence offered in support of the “primary activities” element
was the testimony of a gang expert. The expert, a deputy sheriff who had apprehended
the minor in the crime charged, indicated he “knew” the gang had “committed quite a few
assaults with a deadly weapon, several assaults,” and he “knew” the gang had been
involved in murders, auto thefts, auto burglaries, felony graffiti, and narcotic violations.
(Id. at p. 611.) “No specifics were elicited as to the circumstances of these crimes, or
where, when, or how [the deputy] obtained the information. He did not directly testify
that criminal activities constituted [the gang’s] primary activities. Indeed, on cross-
examination, [the deputy] testified that the vast majority of cases connected to [the gang]
that he had run across were graffiti related.” (Id. at pp. 611-612, fn. omitted.)



                                             29
       The Alexander L. court found this evidence was insufficient to establish the
“primary activities” portion of the enhancement. The court recognized that while expert
testimony may be sufficient evidence to support a primary activities finding, in the case
before it the expert’s testimony lacked adequate foundation. There was no evidence
regarding the basis of the expert’s testimony. It was thus impossible “to tell whether his
claimed knowledge of the gang’s activities might have been based on highly reliable
sources, such as court records of convictions, or entirely unreliable hearsay.”
(Alexander L., supra, at p. 612, fn. omitted.) Without an adequate foundation, the
testimony was not substantial evidence of the gang’s primary activities.
       In contrast, here there was significant evidence regarding the foundation for
Robles’s opinion. He testified about his extensive training and experience as a gang
expert. He further testified about his personal knowledge of the gang and his
investigations involving Krazy Crowd gang members. He directly testified about the
primary activities of the gang. This was not like the non-specific testimony at issue in
Alexander L., in which the expert simply indicated he “knew” that the gang had
committed or been involved in some of the enumerated offenses. Instead, it was similar
to the expert testimony in Gardeley, which our high court found sufficient to establish the
primary activity of the gang at issue. (Alexander L., at p. 613.) The reasoning and
analysis of Alexander L. make clear that the expert testimony here was substantial
evidence sufficient to support the jury’s finding that the Krazy Crowd gang had as one of
its primary activities one or more enumerated offenses. (Martinez, supra, 158
Cal.App.4th at p. 1330.)
       Defendant additionally asserts Robles’s testimony was “fatally overbroad” in that
when describing the Krazy Crowd gang’s primary activities, he listed some crimes of
which only a subset are enumerated offenses. For example, Robles identified “assaults”
as one of the Krazy Crowd gang’s primary activities, yet section 186.22, subdivision
(e)(1) identifies as an enumerated offense only assault with a deadly weapon or by means
of force likely to produce great bodily injury.



                                             30
      We need not resolve this issue. To establish a “criminal street gang” for purposes
of the enhancement, the People were only required to prove that the group has “as one of
its primary activities the commission of one or more of the criminal acts enumerated”
in specified paragraphs of the statute. (§ 186.22, subd. (f).) While some of the crimes
Robles identified as the Krazy Crowd gang’s primary activities were broader than the
enumerated crimes, he also listed robberies and attempted murders. These are
enumerated crimes under section 186.22, subdivisions (e)(2) and (e)(3). No more was
required.
      We have found sufficient evidence supported the jury’s true finding on the gang
allegation. Thus, we need not consider defendant’s argument that the firearm
enhancements could not be imposed absent a gang enhancement.
                                     DISPOSITION
      The trial court judgment is affirmed.




                                                       BIGELOW, P.J.
We concur:


                    RUBIN, J.




                    FLIER, J.




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