Filed 9/20/13 P. v. Johnson CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                  DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E055133

v.                                                                        (Super.Ct.No. FSB1002027)

ROSHADD BERNARD JOHNSON,                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,

Judge. Affirmed in part and reversed in part.

         Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Theodore M. Cropley and

Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.




                                                              1
                                    I. INTRODUCTION

       Defendant Roshadd Bernard Johnson appeals from his conviction of robbery (Pen.

Code,1 § 211; count 1) and assault by means likely to produce great bodily injury (§ 245,

subd. (a)(1); count 2) with associated true findings on enhancement allegations of

personal infliction of great bodily injury (§ 12022.7, subd. (a)), offenses committed for

the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and a prison term prior

(§ 667.5, subd. (b)).

       Defendant contends (1) his robbery conviction must be reversed because the trial

court erred by giving the jury a supplemental instruction that robbery could be the natural

and probable consequence of assault when the prosecutor had never argued that theory;

(2) the trial court erred by failing to instruct the jury on the lesser included offense of

theft when there was substantial evidence that the taking of property was an afterthought

in an assault arising from a domestic dispute; (3) the enhancements for great bodily injury

must be stricken because the evidence was insufficient to establish that defendant

personally inflicted great bodily injury; (4) the enhancements for great bodily injury

should be stricken because the trial court instructed the jury, over a defense objection, on

the group beating instruction when there was insufficient evidence to support that

instruction; (5) the gang finding must be stricken because the evidence of the primary

activity element was insufficient; (6) the abstract of judgment should be amended to

show the correct crime of which defendant was convicted in count 2; and (7) the

       1   All further statutory references are to the Penal Code unless otherwise indicated.

                                               2
cumulative error doctrine requires reversal. We conclude the trial court erred by failing

to instruct the jury on the lesser included offense of theft because substantial evidence

supported giving that instruction. We will therefore reverse defendant’s conviction of

robbery. The People concede the abstract of judgment should be corrected. We find no

other errors.

                    II. FACTS AND PROCEDURAL BACKGROUND

       Defendant had a daughter, S.,2 with Deantonisha3 Spencer. At the time of trial, S.

was seven years old. S. had lived with defendant’s mother from 2005 to 2008. In 2008,

Spencer took custody of S., and defendant and Spencer thereafter had disputes about

visitation. In 2010, Spencer was living with S. in Louisiana with her fiancé, Sharon

Gavins.4

       In April 2010, Gavins, Spencer, and S. came to California to visit family. On

April 26, Gavins, Spencer, De-Antonette Brown (Spencer’s sister), and several other of

Spencer’s family members were at a car shop in San Bernardino owned by a family

friend. The group was standing around talking.

       Defendant arrived at the car shop. Spencer had not invited him, and she was not

happy to see him. Defendant spoke to Gavins and played with S. Defendant told Gavins

he appreciated everything Gavins had done for S.; the conversation was friendly.

       2   The child is also referred to in the record as R.

       3   Spencer’s name also appears in the record as De-Antonish and De-Antonisha.

       4   Gavins’s first name also appears in the record as Sheron and Shuron.

                                                3
       When defendant had been there for about half an hour, at least five other people

arrived, including Harold McKing, Jerry McDowell,5 Jovan Smith,6 and defendant’s

sister, Isha Johnson. Spencer had invited Isha to see S., but she had not invited the men.

Gavins did not know any of the men in the group.

       Gavins felt uncomfortable after these people arrived, and he started to walk to his

truck with Spencer and Brown. Smith or McDowell called out to them; Gavins stopped,

and Smith began talking to him. Meanwhile, defendant was holding S. According to

Gavins, defendant was about 30 feet away. According to Spencer, defendant was behind

Smith and McDowell. According to Brown, defendant was two feet behind McDowell.

       Gavins turned to leave, and McDowell yelled out “Hoover” or “This Hoover.”

McDowell then struck Gavins on the left side of his lip with a closed fist. McDowell

may have been holding some object when he did so. Gavins fell to the ground and lost

consciousness; he had a large gash on his lip, and his eyes were rolling in the back of his

head. While Gavins was on the ground, defendant, still holding S., kicked Gavins in the

mouth or “on the right side of his face somewhere between his lips and right underneath

his right eye” when Gavins was coming back to consciousness. Gavins again lost

consciousness; the next thing he knew, officers and paramedics were attending to him.

Gavins was taken to the hospital, where he received 12 stitches in his mouth. He also had


       5 McDowell, also referred to in the record as “Half,” was charged with and
convicted, in a joint trial, of the same crimes and enhancements as defendant.

       6   Smith is also referred to in the record as “Puna” and “Poonah.”

                                              4
another gash, which could not be stitched because it was in the center of his lip, and a

laceration underneath his eye.

       While Gavins was on the ground, McDowell began digging through his pockets.

He took two cell phones, a wallet, money, and Gavins’s watch. While he was taking the

items, he was yelling, “This is Hoover. You don’t mess with Hoovers . . . .” Brown

testified that defendant kicked Gavins after McDowell had rifled through Gavins’s

pockets.

       Meanwhile, Spencer and defendant began fighting and pushing each other, and

defendant put S. down. Isha grabbed S. and tried to take her to McKing’s car, but

Spencer’s aunt stopped her and got the child.

       Gavins testified that McDowell’s punch had caused an injury to his lip that

required stitches. He testified that defendant’s kick had caused a laceration under his eye,

and that the kick had caused him to lose consciousness again. Spencer testified that the

injury to the left side of Gavins’s lip was inflicted when McDowell hit him, and the

injury underneath Gavins’s right eye was caused by defendant’s kick.

       Police officers interviewed Spencer at the scene. She said she had come to

California to see her family and to let defendant see S. She took S. to the car shop in part

to visit defendant. While at the car shop, defendant held S. and was trying to leave with

her when Gavins attempted to stop him. McDowell got in the middle and struck Gavins.

Defendant then kicked Gavins in the face and handed S. to Isha, who tried to leave in a

car with her. McDowell took a cell phone from Gavins’s pocket, and defendant and


                                             5
McDowell left on foot. Spencer had been having problems with defendant over visitation

with S. She never told the police that McDowell had mentioned “Hoover.” Brown also

spoke to the police at the scene, and she also did not say anything about McDowell

shouting “Hoover.” Gavins told the police he had lost consciousness after being

punched, and he did not remember anything else. He did not mention being kicked.

       A. Gang Evidence

       Defendant told Spencer while they were dating that he was an active member of

the 107 Hoover gang. Spencer testified that Smith and some of the other men who

arrived with him were also gang members.

       Officer Jason Heilman testified as a gang expert. The Hoover Criminals gang has

about 1,500 members in about nine subsets; the gang originated in Los Angeles, and its

main turf was in South Central Los Angeles, but there had been a pattern of relocation to

San Bernardino. Officer Heilman testified that in his opinion, based on his investigation

of the current case, review of gang cards, and speaking with Spencer, defendant was a

member of 107 Hoover, a set of the Hoover Criminals. He believed McDowell was a

member of the 5-Deuce set of the Hoover Criminals. The question “where are you from”

is used by gang members to size a person up and find out if he or she is in a gang.

Officer Heilman testified about three specific crimes committed by Hoover Criminals in

San Bernardino: two 2008 convictions of gang members for carrying loaded firearms

and a 2008 conviction of another gang member for grand theft.




                                             6
       B. Defense Evidence

       Isha testified she and defendant had known Spencer since childhood. After S. was

born, she lived mostly with defendant, Isha, and their mother. When S. was about five

years old, she moved with Spencer. On April 26, 2010, Spencer called Isha to say she

was in San Bernardino, and they arranged for Isha to see S. Spencer said she had

contacted defendant so he could also see S.

       Spencer’s cousin picked up Isha and drove her to Ninth Street. When they arrived,

defendant was there with Smith and McKing, but Isha did not see McDowell. Several

members of Spencer’s family were there, and they were talking and catching up.

Defendant was talking to Gavins and playing with S. The conversation appeared

friendly.

       After 45 minutes to an hour, Isha heard a scream. She turned and saw Gavins on

the ground. Defendant was standing next to Isha playing with S., about 45 feet away

from Gavins. Spencer and her aunt ran over to confront defendant. They began pushing

and hitting him, so Isha grabbed S. from him. Spencer’s aunt snatched S. from Isha, and

Isha and the aunt argued. Isha told defendant they should leave, and Isha, defendant, and

Smith left in McKing’s car. Isha did not see defendant kick Gavins, and she did not see

anyone else strike Gavins in the face. Isha did not try to take S. away in a car. Isha

denied that defendant had ever been a gang member.




                                              7
        C. Verdicts and Sentence

        The jury found defendant guilty of robbery (§ 211, count 1) and assault by means

likely to produce great bodily injury (§ 245, subd. (a)(1); count 2), and found true

enhancement allegations of personal infliction of great bodily injury (§ 12022.7, subd.

(a)) and offenses committed for the benefit of a criminal street gang(§ 186, subd.

(b)(1)(C)). The trial court found true the allegation of a prison term prior (§ 667, subd.

(b)).

        The trial court sentenced defendant to the aggravated term of five years for the

robbery, a consecutive three-year enhancement for the great bodily injury, and a

consecutive one-year enhancement for the prison term prior. The court struck the

punishment for the gang enhancement under section 186.22, subdivision (g) and stayed

the sentence for the assault conviction under section 654.

        Additional facts are set forth in the discussion of the issues to which they pertain.

                                     III. DISCUSSION

        A. Failure to Instruct on Lesser Included Offense of Theft

        Defendant contends the trial court erred by failing to instruct the jury on the lesser

included offense of theft when there was substantial evidence that the taking of property

was an afterthought in an assault arising from a domestic dispute.

               1. Analysis

        The trial court must instruct the jury sua sponte on lesser included offenses “when

the evidence raises a question as to whether all of the elements of the charged offense are


                                               8
present and there is evidence that would justify a conviction of such a lesser offense.”

(People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) Theft is a necessarily lesser included

offense of robbery, which has the additional element of taking by force or fear. (Ibid.) If

the intent to steal arose after the victim was assaulted, the element of force or fear is

absent. (People v. Webster (1991) 54 Cal.3d 411, 443.) For example, in People v.

Bradford (1997) 14 Cal.4th 1005, the court held there was evidence that the defendant

did not form the intent to steal until after killing the victim to eliminate her as a witness to

a sexual assault, and he did not take her wallet and makeup bag until after she was dead.

(Id. at p. 1056.) The court therefore reversed the defendant’s robbery conviction because

the jury had not been instructed on the lesser included offense. (Id. at p. 1057.)

       Spencer told an officer at the scene that she had taken S. to the car shop to visit

with defendant. While they were there, defendant “had their daughter and was

attempting to leave.” Gavins tried to stop defendant, and McDowell “got in the middle

and struck Gavins with a closed fist, knocking him to the ground.” After McDowell

struck Gavins, defendant kicked Gavins in the face while still holding the child.

Defendant then handed the child over to Isha, who attempted to leave in a car. Spencer

grabbed the child back from Isha; she then looked back and saw Half removing a cell

phone from Gavins’s pocket. Spencer did not say that anyone had yelled out Hoover

before Gavins was struck. Spencer told the officer that she was having problems with

defendant about visitation with S., and defendant was “always upset with her because she

shares a child with Gavins.” Gavins told the officer he did not know what had happened.


                                               9
       Under that scenario, the jury could reasonably have concluded that the initial

assault on Gavins took place when McDowell intervened after Gavins tried to stop

defendant from taking away the child. If it believed that scenario, the jury could have

reasonably determined that the intent to remove Gavins’s property arose only after

Gavins was knocked unconscious, making the crime theft rather than robbery. (See

People v. Webster, supra, 54 Cal.3d at p. 443.) We conclude substantial evidence

supported instructing the jury on the lesser included offense of theft, and the trial court

erred in failing to give that instruction.

       B. Instruction on Natural and Probable Consequences Doctrine

       Defendant contends his robbery conviction must be reversed because the trial

court erred by giving the jury a supplemental instruction that robbery could be the natural

and probable consequence of assault when the prosecutor had never argued that theory.

Because we have determined his robbery conviction must be reversed on another ground,

that argument is moot.

       C. Sufficiency of Evidence of Personal Infliction of Great Bodily Injury

       Defendant contends the enhancements for great bodily injury must be stricken

because the evidence was insufficient to establish that he personally inflicted great bodily

injury. Although he concedes the evidence showed he kicked Gavins in the face, he

contends the laceration he inflicted by doing so did not constitute great bodily injury.




                                             10
              1. Standard of Review

       When a criminal defendant challenges the sufficiency of the evidence to support a

true finding on an enhancement allegation, this court must determine whether a

reasonable trier of fact could have found that the prosecution sustained its burden of

proving the allegation beyond a reasonable doubt. (People v. Ochoa (1998) 19 Cal.4th

353, 413-414.) We review the whole record in the light most favorable to the jury’s

finding. (Id. at p. 413.)

              2. Analysis

       “Any person who personally inflicts great bodily injury on any person other than

an accomplice in the commission of a felony or attempted felony shall be punished by an

additional and consecutive term of imprisonment in the state prison for three years.”

(§ 12022.7, subd. (a).) The phrase “personally inflicts” means that the defendant himself

must have personally and directly inflicted the injury; the statute does not subject an aider

and abettor to the enhancement. (People v. Cole (1982) 31 Cal.3d 568, 572.) Great

bodily injury requires a significant or substantial physical injury; an insignificant or

trivial injury does not suffice. (§ 12022.7, subd. (f); People v. Martinez (1985) 171

Cal.App.3d 727, 735; People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.)

       Spencer and Brown both testified that McDowell’s punch caused the laceration to

Gavins’s mouth, and they saw that the punch caused a large gash on Gavins’s lip that

required stitches. Both further testified that defendant’s kick caused a laceration under

the eye. The People introduced photographs of Gavins’s injuries. Defendant argues that


                                              11
the above-described evidence established that his kick caused a laceration below

Gavins’s eye, and that injury was not great bodily injury within the meaning of the

enhancement allegation.

       Defendant’s argument overlooks other evidence that he in fact kicked Gavins in

the mouth. Gavins testified that McDowell’s blow caused him to lose consciousness and

fall to the ground. His next recollection was that he “was coming to, but [he] was kicked

in the mouth.” He repeated: “After I was struck, I lost conscious [sic]. I fell to the

ground, and as I was coming back through [sic], I was kicked in the mouth.” He

identified defendant as the person who had kicked him in the mouth with his right foot.

After defendant kicked him in the mouth, he again lost consciousness, and the next thing

he remembered was seeing officers and emergency personnel attending him. The jury

could reasonably conclude that defendant had kicked Gavins in the mouth, and defendant

does not dispute that the large gash to Gavins’s lip was great bodily injury.

       Moreover, a victim’s loss of consciousness is sufficient to support a finding of

great bodily injury. (People v. Wade (2012) 204 Cal.App.4th 1142, 1147-1149 [holding

that serious bodily injury as defined in § 243 is equivalent to great bodily injury under

§ 12022.7, and “a loss of consciousness that constitutes a ‘serious impairment of physical

condition’ is a ‘serious bodily injury’”]; People v. Kent (1979) 96 Cal.App.3d 130, 136-

137.) Gavins testified that McDowell’s blow caused him to lose consciousness and fall

to the ground. His next recollection was that he “was coming to, but [he] was kicked in

the mouth.” During cross-examination, he testified he had lost consciousness from


                                             12
McDowell’s blow for “probably a few seconds or so.” When he was coming to,

defendant kicked him, and that caused him to lose consciousness again. Thus, Gavins’s

testimony supported a jury finding that defendant had caused Gavins’s second bout of

unconsciousness.

       Defendant contends, however, that Gavins’s testimony was “so contradicted by the

other more credible evidence . . . that it cannot be considered ‘evidence which is

reasonable, credible, and of solid value.’” Whether the other evidence on which

defendant relies was “more credible” was an issue solely for the determination of the

jury. And, although Spencer and Brown testified Gavins was unconscious when

defendant kicked him, their perception of the events did not necessarily contradict

Gavins’s testimony that he was coming into consciousness when he was kicked. The jury

could properly have reasoned that his consciousness was a subjective state not perceptible

to spectators.

       We conclude substantial evidence supports the jury’s true finding on the great

bodily injury enhancement allegation.

       D. Group Beating Instruction

       Defendant next contends the enhancements for great bodily injury should be

stricken because the trial court instructed the jury, over a defense objection, with a group

beating instruction (CALCRIM No. 3160)7 when there was insufficient evidence to


       7   The trial court instructed the jury under CALCRIM No. 3160, in part, as
follows:
                                                                  [footnote continued on next page]

                                             13
support that instruction. He argues CALCRIM No. 3160 may properly be given only

when it is impossible to determine which person inflicted great bodily injury.

                 1. Additional Background

        Defense counsel objected to instructing the jury with CALCRIM No. 3160,

arguing that the instruction on group beatings did not apply because there had been two

separate attacks: first, McDowell punched Gavins in the mouth, and second, defendant

kicked Gavins below his eye. The trial court disagreed, stating: “[T]here was no specific

testimony regarding which injury might have been specifically inflicted by which part of

the attack. They are both injuries to the head. They aren’t clearly attributable . . . to one

of the blows or the other, and it’s for that reason that I think the group assault language is

appropriately given in this case.



[footnote continued from previous page]
        “If you conclude that more than one person assaulted Shuron Gavins and you
cannot decide which person caused which injury, you may conclude that the defendant
personally inflicted great bodily injury on Shuron Gavins if the People have proved that:
        “1. Two or more people, acting at the same time, assaulted Shuron Gavins and
inflicted great bodily injury on him;
        “2. The defendant personally used physical force on Shuron Gavins during the
group assault;
        “AND
        “3A. The amount or type of physical force the defendant used on Shuron Gavins
was enough that it alone could have caused Shuron Gavins to suffer great bodily injury;
        “OR
        “3B. The physical force that the defendant used on Shuron Gavins was sufficient
in combination with the force used by the others to cause Shuron Gavins to suffer great
bodily injury.
        “The defendant must have applied substantial force to Shuron Gavins. If that
force could not have caused or contributed to the great bodily injury, then it was not
substantial.”

                                              14
       Spencer testified that defendant kicked Gavins on the side of his face between his

lips and his eye. Brown testified that defendant kicked Gavins in the area of his right

cheek, causing a laceration under his eye. Gavins required 12 stitches to close the

laceration in his mouth. However, Gavins testified repeatedly that defendant had kicked

him in the mouth.

              2. Analysis

       As noted, a great bodily injury enhancement under section 12022.7, subdivision

(a) applies only to a defendant who personally inflicts injury. (People v. Banuelos (2003)

106 Cal.App.4th 1332, 1336.) When it is unclear which of multiple assailants actually

caused a great bodily injury, an enhancement may be imposed on each of the assailants

who used force substantial enough, either alone or in combination, to have caused the

injury. (People v. Modiri (2006) 39 Cal.4th 481, 486, 494, 496-497; accord, People v.

Dunkerson (2007) 155 Cal.App.4th 1413, 1418; People v. Corona (1989) 213

Cal.App.3d 589, 594.) As discussed above, the evidence was unclear as to the specific

events that had caused Gavins’s injury. Moreover, by its terms, the challenged

instruction applied only if the jury found that more than one person assaulted Gavins, but

the jury could not determine which person caused which injury. We presume the jury

understood and properly applied the instruction. (People v. Homick (2012) 55 Cal.4th

816, 853, 861.)

       This case is not like People v. Magana (1993) 17 Cal.App.4th 1371, in which the

court struck great bodily injury enhancements because “the record [did] not contain


                                            15
substantial evidence to sustain the required findings that defendant personally inflicted

great bodily injury on the [victims].” (Id. at p. 1381.) Here, as we concluded above, the

evidence was sufficient to sustain the jury’s finding of personal infliction of great bodily

injury.

          E. Gang Enhancement

          Defendant contends the gang finding must be stricken because the evidence of the

primary activity element was insufficient.

                 1. Additional Background

          During Officer Heilman’s testimony, the following exchange occurred:

          “Q Sir, are you familiar with what the Hoover Criminals primary activities are?

          “A Yes.

          “Q And if you could speak to that.

          “A They’ve . . . been engaged or involved in drug sales, robberies, illegal

weapons, possession, murders, and you know, carjackings, violent crimes, those types of

things, been involved in burglaries.

          “Q So would you indicate that violence is primarily the activity of this gang?

          “A Yes.”

                 2. Analysis

          Preliminarily, we question whether defendant has standing to raise the contention;

the trial court struck his punishment for the gang enhancement in the interest of justice

under section 186.22, subdivision (g), and we are unaware of any future consequence that


                                               16
might flow from the true finding. Nonetheless, we will address the issue on the merits

because it is easily disposed of.

       Subdivision (f) of section 186.22 defines a 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 . . . 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.” “The 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.” (People v. Sengpadychith

(2001) 26 Cal.4th 316, 323.) “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.” (Id. at p. 324.)

       In In re Alexander L. (2007) 149 Cal.App.4th 605, a gang expert was asked to

describe the primary activities of the Varrio Viejos gang. The expert responded: “‘I

know they’ve committed quite a few assaults with a deadly weapon, several assaults. I

know they’ve been involved in murders. [¶] I know they’ve been involved with auto

thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Id. at p. 611.) On

appeal, the court held that the testimony was insufficient to establish the primary

activities of the gang, and the court further explained the expert’s testimony lacked

foundation. (Id. at p. 612.) This case is distinguishable from In re Alexander L. because


                                              17
Officer Heilman established the foundation for his expert opinions by recounting his

extensive training and experience in gang culture and in investigating gang crimes.

       In People v. Margarejo (2008) 162 Cal.App.4th 102 (Margarejo) the court

distinguished Alexander L. on the ground that the expert in Alexander L. “equivocated on

direct examination and contradicted himself on cross-examination.” (Margarejo, supra,

at p. 107.) The court in Margarejo held that even though the expert witness did not say

“primary” when describing a gang’s activities, that word could be incorporated into his

answer from the question asked him. (Id. at p. 106.) The prosecutor asked: “‘Now, what

are the primary activities of the Highland Park criminal street gang?’” (Id. at p. 107.)

The gang expert responded: “‘Their activities range from simple vandalism and battery,

and can extend all the way to murder. They also include consolidated weapons,

carjackings, robberies and a lot of narcotic related offenses.’ (Italics added.)” (Ibid.)

The defendant contended the evidence of the primary activities element was insufficient

because the expert did not explicitly state the listed activities were the gang’s primary

activities. The court rejected that argument, explaining: “Counsel’s questions

themselves are not evidence, but the question’s wording typically is relevant to a

reasonable interpretation of the witness’s answer. Often it is vital to consider the

question to understand anything about the answer, as with answers like ‘yes.’ [¶] Here

the jury had ample reason to infer that [the expert’s] answer implicitly incorporated the

word ‘primary’ from the question. Ordinary human communication often is flowing and

contextual. Jurors know this. Repetitive and stilted responses make up one kind of direct


                                             18
examination, but not the only kind. [Defendant’s] objection here calls for an

unreasonably restrictive interpretation of [the expert’s] answer, which we respectfully

decline.” (Ibid.)

       Defendant argues that Officer Heilman never explicitly testified about the primary

activities of the gang. However, as noted above, Officer Heilman’s testimony that the

Hoover Criminals had been involved in certain crimes was in response to the prosecutor’s

question asking him to “speak to” the primary activities of the gang. The jury could

reasonably interpret his response as incorporating that question. (Margarejo, supra, 162

Cal.App.4th at p. 107.) Under the governing standard of review, we must draw all

reasonable inferences in favor of the judgment. We thus conclude the evidence was

sufficient to establish that the primary activities of the Hoover Criminals included those

listed by Officer Heilman.

       F. Abstract of Judgment

       Defendant contends the abstract of judgment should be amended to show the

correct crime of which he was convicted in count 2. Because we reverse defendant’s

conviction of robbery, his challenge to the abstract of judgment is moot.

       G. Cumulative Error Doctrine

       Defendant contends the cumulative error doctrine requires reversal. Because we

have found no errors, that doctrine is inapplicable.




                                             19
                                     IV. DISPOSITION

       Defendant’s conviction of robbery is reversed. In all other respects, the judgment

is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              HOLLENHORST
                                                                       Acting P. J.
We concur:

       MCKINSTER
                                J.

       MILLER
                                J.




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