Filed 1/6/14 P. v. Trinh CA2/3

                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SECOND APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,                                                              B242635

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. BA380215)
         v.

DWIGHT ANDRE TRINH,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
         Siri Shetty, 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, Paul M. Roadarmel, Jr. and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

                                          ________________________________
       Dwight A. Trihn appeals the judgment entered following a jury trial in which he
was convicted of shooting at an occupied motor vehicle with findings he personally used a
firearm and personally and intentionally discharged a firearm (Pen. Code, §§ 246,
12022.53, subds. (b) & (c); count 1),1 assault with a semiautomatic firearm with a finding
he personally used a firearm (§§ 245, subd. (b), 12022.5, subd. (a); count 2) and felon
possessing a firearm (§ 12021, subd. (a)(1); count 3). The jury made findings each offense
was committed for the benefit of, or in association with, a criminal street gang. (§ 186.22,
subds. (b)(1) & (b)(4)(B).) Appellant admitted that he had a prior conviction for attempted
murder (§§ 664, 187) that was a serious felony (§ 667, subd. (a)(1)) and a strike (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)), and for which he had served a separate prison term
(§ 667.5, subd. (b)).
       At sentencing, the trial court imposed an aggregate term of 55 years to life in state
prison. For count 1, shooting at an occupied motor vehicle, the trial court imposed a
doubled base term of 15 years to life, or 30 years to life, with a consecutive determinate
term of five years for the prior violent felony conviction and of 20 years for the use of a
firearm, a term of 55 years to life. For count 3, felon in possession of a firearm, the trial
court imposed a concurrent term of seven years. The term imposed for count 2 was
imposed and stayed pursuant to section 654.
                                      BACKGROUND
       Hector Medina owned a small bar and a separate restaurant, Casa Honduras, on the
frontage road on the northeast corner of 68th Street and Vermont Avenue in Los Angeles.
His residence was located on 68th Street behind the bar, or “club,” as he referred to the
bar. The club was a local gang hangout for the 65 Menlo Gangster Crips (Menlo) and their
associate gang, the 67 Neighborhood Crips. One of the Menlos, appellant, known by his
first name, Dwight, or as Dough Boy, frequented the club. Appellant often organized gang




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

                                               2
parties at the club, and he and Medina would collect the proceeds of the parties at the door
and split those proceeds. Medina did not employ appellant.
       At 9:00 p.m. on December 26, 2010, appellant had organized a birthday party for a
fellow gang member, Ranbo. Ranbo, appellant and several other gang members were
present inside the club preparing for the party. Appellant was standing inside the front
door to the club making a cellular telephone call when a car drove by the club northbound.
A rear passenger in the car rolled down a window and started shooting in the direction of
the front of the club with a rifle-shaped gun. Appellant could be seen on a video
surveillance tape at the front of the club emerging outside with his .38-caliber
semiautomatic pistol and chasing the drive-by car northbound. While appellant ran, he
returned fire at the departing drive-by vehicle.
       After the shooting, appellant did not return to the club, and the police arrived.
Medina and the police determined the gunman in the drive-by vehicle was not shooting
bullets at the club. They found paint balls sitting on two cars parked in front of the club
and concluded the rear occupant of the drive-by vehicle was discharging a paint gun.
Appellant was later arrested for the shooting.2




2
         Medina was a reluctant witness. He did not want to displease appellant or the
police, and he was afraid of appellant and the Menlo gang. He was concerned for his
family’s safety as they lived in the residence located behind the club. Medina initially
declined to identify appellant on the video surveillance tape and said appellant was not at
the club. Medina admittedly had been in contact with appellant who was telephoning
Medina from the jail. Through direct threats and threats by other gang members, appellant
attempted to shape, and did partially have an effect on, Medina’s preliminary hearing and
trial testimony. The above version of the shooting was established at trial through
Medina’s trial testimony and his extrajudicial statements to Los Angeles police officers,
particularly Los Angeles Police Officer Stephen McClean (Officer McClean). By the time
of trial, Medina had moved his family from the residence he owned behind the club.
Before the preliminary hearing, Medina made a claim that a Jose Marin, a Huntington Park
business rival, had threatened Medina with violence. The police did not regard this latter
claim as credible.

                                              3
       The police were unable to obtain any reliable indication of the identity of the
occupants of the drive-by vehicle. Thus, they were unable to determine whether the
occupants of the drive-by car were rival gang members and whether the drive-by shooting
was gang activity. Nevertheless, appellant was arrested for participating in a retaliatory
gang shooting as he had returned fire at the occupied drive-by vehicle. At trial, the jury
found him guilty of the shooting and returned a true finding as to a section 186.22,
subdivision (b), gang enhancement.
       Officer McClean testified to the opinion evidence necessary to provide the basis for
the gang enhancement. He opined Menlo was a criminal street gang and gave the reasons
why he had so concluded. He testified to gang mores and expectations. He opined
appellant was an active Menlo gang member, and he explained gang intimidation of
witnesses and of peers and the community generally. He explained why carrying a firearm
and using that firearm in retaliation elevated the gang’s status and the particular gang
member’s reputation. The officer described the concept of retaliation and that engaging in
a retaliatory shooting would elevate status within the gang and would assist the gang’s
reputation. Hypothetically, the officer gave his opinion the shooting was committed in
association with the gang and for its benefit as carrying the firearm and committing the
shooting showed disregard for the law, an element of the gangster lifestyle, and allowed
the gang member to assist the gang in maintaining its control over the neighborhood.
                                       CONTENTIONS
       1. The Sufficiency of the Evidence Supporting a Gang Enhancement
       Appellant contends the evidence is insufficient to support the finding of a gang
enhancement pursuant to section 186.22, subdivision (b). He argues there is no evidence
the drive-by shooting was gang-related, or that appellant acted with the assistance of other
gang members, and thus appellant is not liable for the gang enhancement. He urges “the
record . . . failed to disclose a rational inference [appellant’s] actions benefited the . . .
gang or that he harbored the specific intent to promote [the] felonious activity of gang
members,” and “no evidence [but] speculation from a gang expert” suggested the crime

                                                 4
“was committed for the benefit [of the gang] with the specific intent to aid criminal
conduct of gang members.”
           a. The standard of review for sufficiency of the evidence
       In considering a challenge to the sufficiency of the evidence to support an
enhancement, “ ‘ “we review the [entire] record in the light most favorable to the judgment
to determine whether it [contains] substantial evidence -- that is, evidence that is
reasonable, credible, and of solid value -- from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citations.]” ’ ” (People v. Wilson (2008)
44 Cal.4th 758, 806.) We presume every fact in support of the judgment the trier of fact
could have reasonably deduced from the evidence. (Ibid.) If the circumstances reasonably
justify the trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary finding.
(People v. Lindberg (2008) 45 Cal.4th 1, 27.) “ ‘A reviewing court neither reweighs
evidence nor reevaluates a witness’s credibility.’ (Ibid.)” (People v. Albillar (2010)
51 Cal.4th 47, 59-60 (Albillar).)
       Substantial evidence includes circumstantial evidence and the reasonable inferences
this evidence allows. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Ferraez
(2003) 112 Cal.App.4th 925, 930.) “Although the jury is required to acquit a criminal
defendant if it finds the evidence susceptible of two reasonable interpretations, one of
which favors guilt and the other innocence, it is the jury, not the appellate court, which
must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee (1998)
18 Cal.4th 96, 132.)
           b. The other relevant legal principles
       Section186.22, subdivision (b)(1), is an enhancement which provides “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, shall, upon conviction of that felony,



                                               5
[be punished] in addition and consecutive to the punishment prescribed for the felony or
attempted felony of which he or she has been convicted . . . .” (§ 186.22, subd. (b)(1).)
        “[T]to fall within the statutory definition of a ‘criminal street gang,’ there must be
an ongoing association of at least three persons that has as one of its primary activities the
commission of specific types of criminal activity, uses a common name or identifying sign
or symbol, and has members who individually or collectively have actually engaged in
‘two or more’ acts of specified criminal conduct committed either on separate occasions or
by two or more persons.”
(People v. Gardeley (1996) 14 Cal.4th 605, 623 (Gardeley).)
        The gang enhancement does not punish mere gang membership. (Gardeley, supra,
14 Cal.4th at p. 623.) To be punishable pursuant to section 186.22, subdivision (b)(1), the
offense must be “gang-related,” i.e., it must be committed (a) for the benefit of, (b) at the
direction of, or (c) in association with a criminal street gang. (Albillar, supra, 51 Cal.4th
at p. 60.) The second prong of the gang enhancement requires a defendant commit the
gang-related felony with the specific intent to promote, further, or assist in any criminal
conduct by gang members -- including the current offenses -- and not merely other
criminal conduct by gang members. (Id. at p. 65.) There is no statutory requirement this
“ ‘ “criminal conduct by gang members” be distinct from the charged offense, or that the
evidence establish specific crimes the defendant intended to assist his fellow gang
members in committing.’ [Citation.]” (Id. at p. 66.)
        The disjunctively worded subparts of each element provide separate and alternative
means to satisfy the two statutory elements. (People v. Leon (2008) 161 Cal.App.4th 149,
162.)
        A gang-related felony is required for the initial prong of the enhancement, but not
for the latter specific intent prong. “There is no further requirement that the defendant act
with the specific intent to promote, further, or assist a gang; the statute only requires the
specific intent to promote, further, or assist criminal conduct by gang members.”
(Albillar, supra, 51 Cal.4th at p. 67.) Gang membership is not a requirement for the

                                                6
enhancement; the defendant is liable where a defendant “personally commit[s] a gang-
related felony with the specific intent to aid members of that gang.” (Id. at p. 68.)
       “There is rarely direct evidence that a crime was committed for the benefit of a
gang. For this reason, ‘we routinely draw inferences about intent from the predictable
results of action. We cannot look into people’s minds directly to see their purposes.
We can discover mental state only from how people act and what they say.’ [Citation.]”
(People v. Miranda (2011) 192 Cal.App.4th 398, 411-412.) Thus, circumstantial evidence
of specific intent is sufficient. Additionally, if substantial evidence otherwise establishes
that the offense is gang-related, the jury reasonably may infer that the defendant had the
specific intent to promote, further, or assist any criminal conduct by gang members.
(Albillar, supra, 51 Cal.4th at pp. 67-68.)
           c. Expert opinion
       In People v. Garcia (2007) 153 Cal.App.4th 1499, at pages 1512 to 1513, the court
summarized the general rules concerning the use of expert police officer opinion evidence
for proving a gang enhancement.
       “ ‘As a general rule, a trial court has wide discretion to admit or exclude expert
testimony. [Citations.] An appellate court may not interfere with the exercise of that
discretion unless it is clearly abused. [Citation.]” ’ (People v. Valdez (1997)
58 Cal.App.4th 494, 506 (Valdez).) In cases where a gang enhancement is alleged or a
substantive gang crime is charged, expert testimony regarding the “culture, habits, and
psychology of gangs” is generally permissible because these subjects are “ ‘sufficiently
beyond common experience that the opinion of an expert would assist the trier of fact.’ ”
(Ibid.) For example, an expert may properly testify about the size, composition, or
existence of a gang; “motivation for a particular crime, generally retaliation or
intimidation”; and “whether and how a crime was committed to benefit or promote a
gang.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-658; see People v. Gonzalez
(2005) 126 Cal.App.4th 1539, 1550 [“Expert testimony repeatedly has been offered to
show the ‘motivation for a particular crime, generally retaliation or intimidation’ and

                                               7
‘whether and how a crime was committed to benefit or promote a gang’ ”]; Valdez, at
pp. 507-509 [holding expert opinion concerning whether the defendant acted for the
benefit of a gang was admissible under the circumstances of the case].)
       Expert opinion that particular criminal conduct benefited a gang by enhancing its
reputation for viciousness can be sufficient to raise an inference that the conduct was
committed for the benefit of a criminal street gang. (Albillar, supra, 51 Cal.4th at p. 63,
citing People v. Vazquez (2009) 178 Cal.App.4th 347, 354 [relying on expert opinion that
the murder of a non-gang member benefited the gang because “violent crimes like murder
elevate the status of the gang within gang culture and intimidate neighborhood residents
who are, as a result, ‘fearful to come forward, assist law enforcement, testify in court, or
even report crimes that they’re victims of for fear that they may be the gang’s next victim
or at least retaliated on by that gang . . .’ ”] and People v. Romero (2006) 140 Cal.App.4th
15, 19 [relying on expert opinion that “a shooting of any African-American men would
elevate the status of the shooters and their entire [Latino] gang”].)
           d. Officer McClean’s trial testimony
       Officer McClean had had personal contact with appellant recently on 15 occasions.
During those contacts, appellant admitted his Menlo gang membership and freely
discussed gang matters. Appellant’s torso, arms and legs were covered with gang tattoos,
many of which indicated that he was a Menlo gang member. Appellant’s moniker was
Dough Boy. Officer McClean believed that appellant was an active gang member based
on appellant’s association with other Menlo gang members, his admissions of gang
membership and the location where he hung out.
       During the investigation of the shooting, Officer McClean had listened to hours of
the recorded telephone calls appellant had made from the jail. During the telephone calls
appellant made to other gang members, appellant and the other parties punctuated their
conversations with such sayings as “Hey, Lo” or “Menlos,” or said such things as
“Lo’s up,” indicating they were Menlo gang members.



                                               8
          The officer gave his opinion the Menlo Crips were a criminal street gang and the
basis for his opinion. The officer explained the 60 members of the Menlo gang associate
with the 67 Neighborhood Crips as they are both relatively smaller gangs. They are rivals
to the bordering gangs, the Six-Deuce Brims, the Eight-Trey Gangster Crips and several
Hoover gangs. Rivalry between criminal street gangs, such as Menlo, often lead to
violence. The Menlo gang was territorial, their center being Menlo Avenue and 65th
Street. Their territory’s northern border is Gage Avenue, the southern border is Florence
Avenue, the western boundary is Vermont Avenue, and the northern border is Hoover
Street.
          The Menlos have a unique hand sign, which the officer demonstrated, and their
primary color is dark blue. They wear sports items in the colors of the University of
Michigan Wolverines, which display the letter M. They have other written signs, such as,
“LO,” “M-G-C,” “65” and “LXV.” The gang established its territory by posting graffiti
and threatening and fighting with, or shooting at, others who enter their territory.
          The officer gave the details of two 2009 crimes committed by fellow gang members
Drew Pollard and Caprice Thompson.
          Officer McClean testified that when an individual joins a gang he gives up a
measure of personal autonomy. His actions are not merely self-centered. His acts
represent the gang as well as himself. Retaliation is part of the gang culture. A gang
member’s status within the gang is measured to some extent by his willingness to engage
in violence, particularly in retaliating against anyone who gives the gang offense. An act
of retaliation would brand a gang member a coward. An act of retaliation by an individual
gang member benefited the reputation of the gang as a whole.
          Officer McClean explained the Menlo gang’s primary activities were narcotic sales,
robberies, burglaries and assaults. He elaborated that a gun is a “tool of the trade” for a
criminal street gang member. Gang members carry guns to commit crimes, establish their
identity and effect fear and intimidation in peers and within the community. Gang crimes
often involve firearms. Officer McClean said Menlo gang members carry guns even in

                                               9
their own territory. They do so to protect themselves, their neighborhood, and to enforce
boundaries with respect to rivals. They use firearms more offensively than defensively.
       The more serious or violent a crime or crimes a gang member commits, the higher
the gang member’s status is within the gang. Gang members equate fear with respect.
Thus, the more one is feared, the more one is respected. If you go around beating others
up, terrorizing others and shooting at people, you make a name for yourself within the
gang, and your status is elevated.
       Also, gang members have rank in the gang based on the “work [they] put in.”
The more crimes and other work one does for the gang’s benefit, the higher one’s rank.
One starts as a teenager performing lowly duties. Then, when the gang member is old
enough, he becomes an “O.G.,” a “gang Crip,” and he directs the younger gang members.
In Officer McClean’s opinion, appellant was a “soldier.” He was not quite an “O.G.,” but
his status was high. He was a “warrior,” and others worked under him. According to
statements appellant made during the recorded telephone calls, it appeared appellant had
recently changed his moniker to “Big D Capone.” In one jail telephone call, appellant
directed other gang members “Baby D Capone,” otherwise known as “Lavelle,” was to be
regarded as his representative in the neighborhood. Appellant indicated Lavelle’s
directions were to be considered as directions from appellant.
       The officer testified to the gang concept of “retaliation.” He said if another gang
slights a gang member in some way, or “disrespects” a gang member, gang members must
“step up” and retaliate. If not, the gang member will be branded a coward. One’s status
within the gang will be lowered until he is kicked out of the gang. One’s status in the gang
depends on his reputation and the respect he has from others.
       Officer McClean said engaging in a shooting elevates a gang member’s status with
the other gang members. A shooting gave one bragging rights, i.e., the gang member
could brag in order to enhance his reputation.




                                             10
       Retaliation is part of the gang culture. If a gang member goes out and commits an
act of retaliation, it is regarded as benefitting the gang and is not necessarily done with
selfish motives. Everything a gang member does is for the gang. If someone fails to
commit a violent act in retribution, it lowers the status of the entire gang. Word spreads,
and if a particular gang member is not feared, he fails to get respect.
       The prosecutor asked Officer McClean a hypothetical loosely based on the facts of
appellant’s case. The officer opined the gang member who returned shots in response to a
paintball shooting would be acting for the benefit of, and in association with, the gang. If a
gang member is a senior person in the gang, he considers himself a warrior. He has to live
up to his reputation. If someone shoots at him, it is expected he will pull out his own gun
and return fire, that is, he is required to “step up” and “take care of business.” Everyone
will see he did a good job, and his status is retained and elevated within the gang. To fail
to respond would brand the gang member a coward and very significantly lower his status.
       Immediately retaliating also lets rival gang members know that the Menlos protect
their neighborhood. It becomes widely known if an interloper tries to “disrespect” the
gang, the gang will meet violence with violence. The officer said, “It ups the level of
violence and the fear that’s going on in their neighborhood.” The gang member may be
defending himself, but he is also defending the gang.
       Officer McClean opined the instant shooting was committed in association with the
gang. The club was a known hangout where a gang party soon would be taking place.
By carrying a gun within the club, the gang member was maintaining the gang’s status.
The gang members were carrying on their business in the community with impunity.
It is against the law for a gang member to own or possess a firearm. So a gang member
carrying a firearm demonstrates a certain disregard for the law, an element of living a
gangster lifestyle. Possessing the firearm also allowed the gang member to protect the
gang in the neighborhood.




                                              11
       The officer explained the factors that persuaded him of a benefit to the gang.
Appellant was a gang member at a gang function in a well-known gang location within the
territorial boundaries of the gang. He was carrying a firearm when he was prohibited from
possessing it. He was a gang member carrying a gun for the benefit of the gang, and
additionally, he used that gun. The officer claimed it was irrelevant that the drive-by
shooting was committed with a paintball gun. Appellant’s act of shooting at the drive-by
vehicle was committed in association with the gang because the drive-by gunman was
“disrespecting” the Menlo gang, whether drive-by gunman used a real gun or not. In the
gang culture, that sort of an attack called for violent retaliation.
       Appellant’s recorded jail telephone calls indicated he is currently an active gang
member. Appellant’s arrest and incarceration for the retaliatory shooting would only
enhance appellant’s reputation within the gang. Gang membership is a particular lifestyle,
a life of crime.
           e. The analysis
       Appellant makes no claim Menlo is not a criminal street gang. Accordingly, we do
not discuss that aspect of Officer McClean’s testimony.
               (1) Committing an offense alone
       At the outset, we note that in the recent decision of People v. Rodriquez (2012)
55 Cal.4th 1125 (Rodriguez), the court addressed the elements of the substantive gang
offense in section 186.22, subdivision (a). In so doing, the court observed that the
elements of the substantive offense and the instant enhancement, section 186.22,
subdivision (b)(1), are different. The court explained while the substantive offense
requires collective action, the enhancement does not. The court indicated for the
enhancement, a person may act alone and still be subject to the finding of a gang
enhancement. (See Rodriquez, at pp. 1138-1139; see also conc. op. by Baxter, J., at
pp. 1139-1141.) The court observed there is no multiple actor requirement as there is for
the substantive gang offense. (See Rodriquez, at pp. 1134-1135.) The enhancement



                                               12
applies when a defendant personally commits a gang-related felony with the specific intent
to promote, further, or assist a gang. (Albillar, supra, 51 Cal.4th at pp. 67-68.)
       Although the Rodriguez court’s comments on this point are dicta, the Supreme
Court’s dicta generally should be followed, particularly “[w]hen the Supreme Court has
conducted a thorough analysis of the issues and such analysis reflects compelling logic,”
as occurs in Rodriquez. (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169.)
       Thus, this court concludes the fact appellant acted alone creates no bar to the
finding of the gang enhancement.
              (2) Gang-related felony
       Appellant argues there is inadequate proof of a gang-related felony, the first prong
or element of the enhancement. However, Officer McClean testified the offense was gang-
related because appellant’s retaliatory shooting benefited the gang and also was conducted
in association with the gang. It was irrelevant the police were unable to determine the
identity of the occupants of the drive-by car in order to determine whether the drive-by
assailants were involved in gang activity. What is determinative of the initial element of
the enhancement is whether appellant’s conduct benefited the gang.
       For several years, Officer McClean had been working the gang detail in the gang’s
general area. Thus, many of Officer’s McClean’s observations about the Menlo gang were
grounded in his personal knowledge of the gang activity in that area. The officer testified
the club was a well-known gang hangout. Many gang shootings and attacks had occurred
there, as well as several deaths. Medina agreed with the officer’s evaluation his club was a
well-known gang hangout and additionally testified there had been a prior drive-by
shooting just two weeks prior to the instant shooting.
       The officer testified as to how the gang protected its territory by using violence and
would attempt to meet each violent attack on persons within its territory with immediate
violence. The carrying of a gun in defiance of the law and to meet retaliatory or drive-by
shootings was part of the gang lifestyle. Being prepared for and meeting an attack



                                              13
benefited the individual gang member and the gang. Appellant’s status as an almost-O.G.
demanded his action in response to the paint ball shooting.
       Expert testimony regarding the “ ‘culture, habits and psychology of gangs’ is
generally permissible because these subjects are ‘ “sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact.” ’ ” (People v.
Garcia (2007) 153 Cal.App.4th 1499, 1512.) Officer McClean’s testimony about gang
values and the mores of retaliation and respect amply supports the first prong of the
enhancement. It explains for the jury the gang and gang member’s motivations and gang
culture so jurors could reach their own conclusions with respect to whether appellant acted
to benefit the gang or in association with the gang.
       The decisions in People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa) and
In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.) are distinguishable.
       In Ochoa, a gang member carjacked a car from a passenger parked in a fast food
restaurant’s parking lot. During the crime, there was no objective indicia the carjacker was
a gang member. The gang expert testified “the carjacking would benefit the gang by
providing general transportation to the gang’s members, by enabling transportation of
narcotics for sale by the gang, by enabling transportation to commit further crimes by the
gang, by providing economic benefit to the gang by sale of the vehicle, by elevating
defendant’s status within the gang, and by raising the gang’s reputation in the community.”
(Ochoa, supra, 179 Cal.App.4th at p. 656.)
       However, in Ochoa, there were no foundational facts adduced at trial tending to
prove the carjacking was gang-related. (Ochoa, supra, 179 Cal.App.4th at pp. 659-663.)
The defendant did immediately drive the car to another location and used the gun to
intimidate another person. However, no witness testified this latter use of the firearm was
gang-related or of benefit to the gang. (Id. at p. 654-663.) In the instant case, appellant
had no personal motive to participate in the shooting, except that he was affiliated with the
gang, at the gang’s hangout, and protecting his neighborhood. Retaliatory drive-by



                                              14
shootings, such as that engaged in by appellant, do not usually occur outside the gang
context. (Id. at p. 661.)
       In Daniel C., supra, 195 Cal.App.4th 1350, three youths entered a market. Two of
the young men then walked outside. The third youth, Daniel C., hung back. A market
employee saw Daniel C. pick up a bottle of bourbon and walk out the exit without paying
for it. When confronted outside the supermarket, Daniel C. assaulted the employee with
the bottle and used its broken neck to cut the employee’s ear. The three youths and a
driver of a car were detained. (Id. at pp. 1353-1354.)
       One of the youths claimed the three youths entered the market to get liquor but the
other two denied that was their purpose. Daniel C. said he went there to get alcohol even
though he had no money, and he told the officer the other youths were unaware of his
intent. (Daniel C., supra, 195 Cal.App.4th at p. 1354.) At the adjudication, Daniel C.
claimed that he only knew one other youth in the car, there was no gang purpose
underlying the commission of the crime, and he stole the liquor bottle on impulse.
(Id. at p. 1357.) He was not a gang member. (Ibid.)
       An expert police officer opined the robbery was gang-related and Daniel C. was a
gang member based on his association with other youths with gang affiliations. The expert
claimed one youth at the market with Daniel C. was an active gang member; another was
an “affiliate.” (Daniel C., supra, 195 Cal.App.4th at p. 1355.) The youths each wore some
item of clothing that was red, a gang color. They had coordinated their activities in the
market. (Id. at p. 1356.) The expert opined the commission of violent crimes benefited the
perpetrator because it raised his level of respect and status within the gang. Also, the theft
of the bourbon benefited the gang and Daniel C. because it showed appellant and his
companions “were ‘putting in work’ ” for the gang. (Ibid.)
       In Daniel C., the appellate court found the foundational facts in the trial evidence
insufficient to support the expert’s opinions concerning the gang enhancement. It held
there was no evidence the other youths were aware of what Daniel C. was doing or that
the various youths referred to by the gang expert were actually gang members.

                                              15
(Daniel C., supra, 195 Cal.App.4th at p. 1361.) In our case, there was no true dispute
concerning the foundational facts that appellant was a gang member, present with several
other gang members inside the bar, and the club was the well-known location of various
incidents of gang activity. The evidence supports the gang enhancement as appellant had
no personal motive for his quick response to the drive-by shooting as he was sheltered
inside the outside door to the bar and emerged only after the drive-by vehicle was driving
off. Circumstantially, the only way to explain his conduct was that he was acting in
general conformity to well-known gang mores by retaliating for the drive-by shooting.
Officer McClean was assigned to work an adjacent area and had considerable personal
knowledge about the Menlo gang and its members.
               (3) Specific Intent
       In this case, the evidence additionally supports the intent element, or the second
prong, of the enhancement: that appellant act to promote, further or assist criminal
conduct by gang members.
       Circumstantial evidence of intent is sufficient to demonstrate this prong of the
enhancement. (People v. Miranda, supra, 192 Cal.App.4th at pp. 411-412.) When
appellant took out his gun to retaliate for the disrespect the paint-ball shooter was showing
to his gang and its territory, he was aiding members of his gang. He acted to make it safer
for gang members to hang out at that particular location by quickly retaliating with
maximum force for the lack of respect shown to those who frequented the club.
He benefited the gang by acting violently with a firearm, conduct which made it easier
for gang members to act with impunity within the confines of the Menlo’s gang territory.
Circumstantially, from this evidence, the jury had ample evidence from which to conclude
appellant retaliated with the intent to protect the territory of his gang, i.e., for the benefit of
the gang. That was all that was required to meet the intent, or second prong, of the
enhancement. (Albillar, supra, 51 Cal.4th at p. 68.)




                                                16
       2. The Restitution Fines
       The People contend the restitution fines imposed are unauthorized, and accordingly,
a remand to the trial court is necessary so as to reimpose restitution fines that fall within
the statutory limits.
       At the oral proceedings of judgment, the trial court imposed a restitution fine of
$20,000 (§ 1202.4, subd. (b)) and a parole revocation restitution fine “in the same amount”
(§ 1202.45), the parole restitution fine to be stayed until such time as appellant violated
parole. However, the trial court’s minute orders and abstract of judgment indicate that the
trial court imposed restitution fines in a different amount, of $1,000 each.
       The statutes limit the amount of a restitution or a parole restitution fine to $10,000.
The latter minute order and abstract of judgment fines of $1,000 were within statutory
limits, while the orders for $20,000 fines entered during the oral proceedings of judgment
exceeded statutory limits.
       As the maximum restitution fine that may be imposed is $10,000 for each of the
restitution fines, we assume the trial court inadvertently erred in making the orders for the
unauthorized restitution fines. Thereafter, the erroneous orders were brought to the trial
court’s attention. At that point, the trial court corrected its orders and had its clerk record
the new authorized orders in its minutes and in the abstract of judgment. (See People v.
Smith (1983) 33 Cal.3d 596, 599 [whether the recitals in the clerk’s minutes should prevail
as against contrary statements in the reporter’s transcript, must depend upon the
circumstances of each particular case].) Under the circumstances, we deem the minute
order and abstract of judgment to prevail over the reporter’s transcript. The erroneous
statements in the reporter’s transcript are of no effect.
       As the minute order and the abstract of judgment contain the new orders of the
trial court, and the fines imposed therein are authorized, there is no need for this court to
order a remand for the trial court to once again reimpose fines within statutory limits.
(See People v. Cleveland (2004) 32 Cal.4th 704, 768; People v. Thompson (2009)
180 Cal.App.4th 974, 978.)

                                               17
                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          KLEIN, P. J.


We concur:




             CROSKEY, J.




             ALDRICH, J.




                                     18
