Filed 9/29/16 P. v. Williams CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B264854

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA100099)
         v.

CHRISTOPHER TRAMEL WILLIAMS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County. Mark C.
Kim, Judge. Affirmed.


         David L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and Esther
P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.


                                __________________________________
        A jury convicted defendant Christopher Williams of one count of first degree
murder and one count of unlawful possession of a firearm by a felon. In addition to
finding true various firearm enhancements, the jury found true gang allegations as to both
counts. On appeal, defendant challenges the gang enhancement findings. Defendant
contends there was insufficient evidence to support a finding that one of the primary
activities of his gang was a crime listed in Penal Code section 186.22, subdivision (e).1
We affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
        In the early morning hours of June 27, 2014, law enforcement discovered the body
of Marcel Johns on a street in Long Beach. Johns was shot and killed while riding a
motorcycle. Police identified defendant as a suspect and arrested him on August 29,
2014.
        In a recorded interview with police, defendant admitted being affiliated with the
“Naughty and Nasty” gang. Defendant told police that at an unspecified time before the
shooting, members from a rival gang, East Side Pain, drove by a park where defendant
was hanging out with friends. The East Side Pain members yelled things as they drove
past, “[b]asically fuck the hood and killing and all that shit.” Defendant also believed
East Side Pain gang members, including Johns, shot at him while he was walking.
Defendant said his associates later criticized him for not taking action. They suggested
he needed to do something to retaliate.
        On June 27, 2014, defendant and two other men drove to the area where the
altercation with East Side Pain members had occurred. Defendant had a gun.2 Defendant

1
        All further statutory references are to the Penal Code.
2
       Defendant told police the gun was not his. He at first said he and the men with
him got guns from a “Mexican dude.” Later he said this was a fabrication and the guns
used in the shooting were not really owned, but were “passed on,” by “people from the
hood.” He later admitted “Tiny MD” was the person who had passed the gun on to him.
He agreed with one of the officer’s characterizations of Tiny MD as “the person that
holds the guns for the, for the hood kind of like or hold onto them and passes them out,
things like that, collects them and stuff like that. . . .” According to the gang expert, Tiny
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saw Johns on a motorcycle; he recognized Johns as an East Side Pain gang member.
Johns had not physically accosted defendant, but he had “banged on [defendant],”
meaning he said disparaging things to defendant about defendant’s gang. Defendant
believed Johns was in the group of people who had previously shot at him. When
defendant and the other two men believed they recognized Johns as “one of [East Side
Pain],” defendant and another man, “Little Yon,” fired their weapons. Defendant was in
the front passenger’s seat. He fired his gun at Johns from the window of the car. He
estimated he was 10 feet away from Johns. He fired as the car passed Johns, discharging
around three rounds. Around three days after the shooting, defendant left Long Beach
and had not returned by the time of the arrest. After the police interview, defendant
spoke to his mother in a recorded jailhouse telephone call. Defendant told his mother,
“Oh my gosh, I told them everything mom. . . . I told them everything.”
       A jury found defendant guilty of one count of first degree murder (§ 187, subd.
(a).) The jury found true allegations that defendant personally used and intentionally
discharged a firearm, causing great bodily injury and death, within the meaning of former
section 12022.53, subdivisions (b), (c), and (d). The jury also found true allegations that
a principal personally and intentionally used and discharged a firearm, causing great
bodily injury and death, within the meaning of former section 12022.53, subdivisions (b),
(c), (d), and (e)(1). The jury found defendant guilty of one count of possession of a
firearm by a felon, with one prior (§ 29800, subd. (a)(1).) The jury further found true
gang enhancements as to both crimes.
       The trial court sentenced defendant to a total prison term of 57 years to life.
                                      DISCUSSION
I.     Substantial Evidence Supported a “Primary Activities” Finding
       Defendant’s sole contention on appeal is that the evidence was insufficient to
support the jury’s finding that the gang enhancements were true. Defendant argues the
evidence did not sufficiently establish that one of the Naughty Nasty gang’s primary

MD was not a Naughty Nasty gang member, but instead belonged to a different gang that
had teamed up with Naughty Nasty in a rivalry with East Side Pain.
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activities was the commission of one or more of the crimes listed in section 186.22.
We affirm.
       A. Gang Expert Testimony
       Long Beach Police Officer Jeremy Boshnack testified as a gang expert. Boshnack
was a member of a team focused on violent crimes, including gang crimes. He had been
a police officer for eight years, had received instruction on gangs, and had attended “gang
investigator school.” Boshnack had worked “gang sweeps” with federal, state, and local
law enforcement. He had investigated gang-specific crimes and had written and served
search warrants on gang members. He had also arrested numerous gang members and
was a court-qualified gang expert. Although he admitted on cross-examination that he
was in his first year as a gang expert, he had been contacting gang members and
investigating gang crimes for the entirety of his career.
       The Naughty Nasty Crip gang was active in the area in which Boshnack had
worked for almost five years. He had engaged in “numerous” contacts with Naughty
Nasty gang members and had arrested members of the gang. At trial, Boshnack
described the gang’s common hand sign and the gang’s common colors and symbols.
According to Boshnack, the gang had approximately 15 active members.3 The gang
claimed the greater North Long Beach area, but most members lived in a smaller area of
Long Beach. Boshnack identified the gang’s rivals; East Side Pain was the “most
prominent” rival at the time of trial. Johns was an East Side Pain gang member.
       When asked about the gang’s primary activities, Boshnack answered they were
“[m]ainly possession of firearms, and in this case murder.” The People then introduced
evidence of two crimes committed by Naughty Nasty gang members: an October 2009
conviction for violation of former section 12025, subdivision (a)(1), carrying a weapon
concealed within vehicle or on person, and a November 2009 conviction for violation of
former section 12021, subdivision (a)(1), possession of a firearm by a felon or drug
addict. Boshnack was familiar with the defendants in both cases; he had contacts with

3
     On cross-examination, Boshnack testified he knew “about 12” of the 15 active
members.
                                              4
both men and both had informed him they were members of the Naughty Nasty gang.
Both men also had gang-related tattoos.
       Boshnack testified that in the course of his duties he often reviewed reports
generated by other officers and detectives regarding crimes that appeared to be gang-
related. He opined that of the three individuals defendant had mentioned in his interview
with police, the two who were in the car with defendant during the shooting were also
Naughty Nasty gang members, and the third was affiliated with a gang that had teamed
up with Naughty Nasty to combat East Side Pain.
       When presented with hypothetical questions mirroring the facts of the case,
Boshnack opined the shooting would be in association with the gang, and would benefit
the gang by making it seem more violent. Boshnack also opined the shooting would
benefit the individual shooter by allowing him to elevate his status, and to be known as
more violent and as someone willing to “put in work” for the gang. Boshnack further
opined that as to a hypothetical gang member who was shot at by a rival gang member,
then, a few days later, saw someone he believed was the shooter from the rival gang, that
hypothetical gang member’s aim would be to “eliminate the threat of further getting
shot,” and to avoid appearing weak to his fellow gang members.
       On cross-examination, defense counsel and Boshnack had the following colloquy:
       “Q: But at least prior to this particular shooting . . . the main activit[ies] were
drugs and gun possession, correct?
       A: In the last couple of years they have had a murder case before this.
       Q: Conviction?
       A: Yes.
       Q: And who was that?
       A: If I remember his name off the top of my head, Little Tunes. I don’t remember
his name.”

       B. Applicable Legal Background
       Under section 186.22, subdivision (b)(1), a defendant is subject to additional
punishment when 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 . . . .” The statute defines a

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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 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).)
The enumerated criminal acts include violations of former sections 12021 and 12025, as
well as homicide. (§ 186.22, subds. (e)(3), (31), (32).)
       In People v. Sengpadychith (2001) 26 Cal.4th 316 (Sengpadychith), the California
Supreme Court concluded the primary activities element may be satisfied by expert
testimony in the form of an opinion regarding the primary activities of the gang,
including crimes reflecting past conduct of members of the gang and acts committed at
the time of the charged offenses. (Id. at pp. 322-323.) The court further explained
“[t]he phrase ‘primary activities,’ as used in the gang statute, implies that the commission
of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or
‘principal’ occupations. [Citation.] That definition would necessarily exclude the
occasional commission of those crimes by the group’s members.” (Id. at p. 323.)
       The court offered examples of the evidence that might be sufficient to establish a
gang’s primary activities: “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 [People v. Gardeley (1996) 14 Cal.4th 605]. There, a police gang expert
testified that the gang of which defendant Gardeley had for nine years been a member
was primarily engaged in the sale of narcotics and witness intimidation, both statutorily
enumerated felonies. (See § 186.22, subds. (e)(4) & (8).) The gang expert based his
opinion on conversations he had with Gardeley and fellow gang members, and on ‘his
personal investigations of hundreds of crimes committed by gang members,’ together




                                             6
with information from colleagues in his own police department and other law
enforcement agencies. [Citation.]”4 (Sengpadychith, at p. 324.)
       Subsequently, in People v. Duran (2002) 97 Cal.App.4th 1448 (Duran), the court
found evidence sufficient to support a primary activities finding where there was gang
expert testimony based on several sources of information, including the expert’s
extensive personal experience in the field and his interviews with over 100 members of
the gang at issue. (Id. at pp. 1455, 1465.) In People v. Vy (2004) 122 Cal.App.4th 1209
(Vy), the court found sufficient evidence supported a primary activities finding with
respect to a six-member gang that had been in existence for two years. (Id. at p. 1219.)
There was evidence that over a less than three-month period in 2000, gang members had
committed two felony assaults and the attempted murder that was the charged crime in
the case. (Id. at pp. 1224-1225.) Although there was no evidence the gang committed
any enumerated crimes in 1998 or 1999, the evidence of “consistent and repeated
criminal activity during a short period before the subject crime” was sufficient to prove
the primary activities element. The court found the element was also satisfied through
testimony of a police gang expert. (Id. at p. 1226.)
       In People v. Martinez (2008) 158 Cal.App.4th 1324 (Martinez), the court rejected
a claim that the gang expert testimony offered was insufficient to support a primary
activities finding. The expert had worked in the gang’s territory for eight years and was
familiar with the gang based on his regular investigations of its activity and interaction


4
        In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), our high court recently
partially disapproved of People v. Gardeley. In Sanchez, the court adopted the following
rule: “When an expert relates to the jury case-specific out-of-court statements, and treats
the content of those statements as true and accurate to support the expert’s opinion, the
statements are hearsay.” (Sanchez, at p. 686.) The court also concluded that if such
statements are testimonial, their admission may violate the Confrontation Clause.
The court thus disapproved of Gardeley, “to the extent it suggested an expert may
properly testify regarding case-specific out-of-court statements without satisfying hearsay
rules.” (Sanchez, at p. 686, fn. 13.) However, the Sanchez court affirmed the principle
that an expert may “rely on hearsay in forming an opinion, and may tell the jury in
general terms that he did so.” (Sanchez, at p. 685, italics in original.)
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with the gang’s members. He opined about the gang’s primary activities, and testified
about two predicate offenses. This was sufficient. (Id. at p. 1330.)
       In People v. Nguyen (2015) 61 Cal.4th 1015 (Nguyen), the court also found
sufficient evidence to support the primary activities element in gang expert testimony.
The case involved Asian street gangs, including the defendant’s gang. The expert
testified that the gang’s primary activities included crimes listed in the statute. (Id. at
p. 1068.) The expert had made contact with close to a thousand gang members and had
over 300 hours of advanced training in gangs, with an emphasis on Asian street gangs.
(Id. at p. 1033.)
       In contrast, in People v. Perez (2004) 118 Cal.App.4th 151 (Perez), In re Jorge G.
(2004) 117 Cal.App.4th 931 (Jorge G.), and In re Alexander L. (2007) 149 Cal.App.4th
605 (Alexander L.), courts found the evidence insufficient to support a primary activities
finding. In Perez, it appeared the gang expert did not explicitly testify about the gang’s
primary activities. The expert had testified about a previous assault and several shootings
committed by the gang within a one-week period; one of the shootings was the charged
crime. The court concluded that even if it assumed the gang was responsible for the
shootings, “such evidence of the retaliatory shootings of a few individuals over a period
of less than a week, together with a beating six years earlier, was insufficient to establish
that ‘the group’s members consistently and repeatedly have committed criminal activity
listed in the gang statute.’ [Citation.]” (Perez, at p. 160.)
       In Jorge G., there was no expert testimony about the gang’s primary activities, and
apparently no other evidence from which it would be possible to infer the gang’s
members consistently and repeatedly committed any of the statute’s listed crimes.
(Jorge G., supra, 117 Cal.App.4th at pp. 944-945.) In Alexander L., the gang expert’s
testimony about the primary activities of the gang was merely that he “knew” the gang
had committed or been involved in enumerated crimes. As the court further explained:
“No specifics were elicited as to the circumstances of these crimes, or where, when, or
how [the expert] had obtained the information. He did not directly testify that criminal
activities constituted [the gang’s] primary activities.” (Alexander L, supra, 149

                                               8
Cal.App.4th at pp. 611-612.) Further, on cross-examination, the expert testified the
“vast majority of cases connected to [the gang] that he had run across were graffiti
related.” (Id. at p. 612.) The appellate court concluded even if it could infer the expert
was referring to the gang’s primary activities, his testimony lacked adequate foundation
since no information was ever elicited at trial to establish the basis of his testimony was
reliable. (Ibid.) Evidence of the two predicate crimes, without more, did not provide
substantial evidence that gang members had consistently and repeatedly committed
crimes listed in the statute. (Id. at p. 614.)
       C. Discussion
       When evaluating a claim of insufficiency of the evidence, including as it relates to
an element of a gang enhancement, “ ‘we “examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—
evidence that 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
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.]’ [Citation.] ‘Unless it is clearly shown that “on no
hypothesis whatever is there sufficient substantial evidence to support the verdict” the
conviction will not be reversed. [Citation.]’ [Citation.] We apply the same standard to
convictions based largely on circumstantial evidence. [Citation.]” (Martinez, supra,
158 Cal.App.4th at p. 1329.)
       This case is closer to Martinez, Duran, Vy, and Nguyen, than it is to Perez, Jorge
G., or Alexander L. There was evidence of Boshnack’s experience with the Naughty
Nasty gang, including his own numerous contacts with gang members, and his review of
reports and other information regarding the gang. This provided a foundation for his
opinions about the gang, including his opinion about the gang’s primary activities.
Boshnack testified that in addition to the charged murder, a Naughty Nasty gang member
had committed another murder within the past two years. The jury could properly
consider the charged crime when evaluating whether murder was one of the gang’s
primary activities. (Sengpadychith, at pp. 322-323.) The gang had only approximately

                                                 9
15 members; the jury could reasonably conclude that two murders within two years
established homicide was one of the gang’s primary activities, consistent with
Boshnack’s testimony that murder was one of the gang’s primary activities. (See Vy,
at pp. 1225-1226 [existence of three violent felonies by a small, six-person gang over
three months was sufficient to satisfy the primary activities element].)
       Moreover, the evidence was sufficient to support the conclusion that the Naughty
Nasty gang consistently and repeatedly engaged in firearm offenses listed in the statute.
Boshnack testified that one of the gang’s primary activities was “possession of firearms”;
this testimony was accompanied by evidence that in 2009, two gang members committed
two firearms offenses listed in the statute, and evidence that defendant committed another
enumerated firearms offense in the instant case. From this evidence, the jury could
reasonably conclude committing firearms offenses listed in section 186.22, subdivision
(e) was one of the gang’s chief or principal occupations.
       Defendant primarily relies on Alexander L. to support his argument on appeal.
But unlike the expert in Alexander L., Boshnack expressly testified about the gang’s
primary activities, and his testimony was supported by adequate foundation. He
personally had numerous contacts with the gang’s members, he had arrested members of
the gang, he had reviewed other materials about the gang, and he was familiar with and
testified about two predicate crimes. In this case, the evidence was sufficient to support
the jury’s finding that one or more of the Naughty Nasty gang’s primary activities was a
crime listed in section 186.22, subdivision (e).
                                      DISPOSITION
       The trial court judgment is affirmed.


                                                         BIGELOW, P.J.
We concur:




                     RUBIN, J.                      GRIMES, J.

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