Filed 8/15/14 P. v. Lynch CA4/1
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                     COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065266

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FSB-1200275)

ZACKARY JEROME LYNCH,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

William Jefferson Powell IV, Judge. Affirmed.



         Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury convicted Zackary Jerome Lynch of the crime of possession for sale of

phencyclidine (PCP) (Health & Saf. Code, § 11378.5) (count 1), and found that the

offense was committed for the benefit of, at the direction of, or in association with a

criminal street gang with the specific intent to promote, further, or assist the criminal

conduct of gang members. (Pen. Code, § 186.22, subd. (b).)1 The jury also found Lynch

guilty of active participation in a criminal street gang (count 2). (§186.22, subd. (a).)

       The trial court determined that Lynch had been convicted of a prior serious or

violent felony offense within the meaning of the "Three Strikes" law (§ 667,

subds. (b)-(i)), and that he had five prior convictions subject to enhancement under

Health and Safety Code section 11370.2, subdivision (a) and five prior prison terms

subject to enhancement under section 667.5, subdivision (b). The trial court sentenced

Lynch to 10 years imprisonment on count 1, and two years, stayed, on count 2, and

imposed sentencing enhancements of five consecutive terms of one year, and five

consecutive terms of three years, for a total term of 30 years imprisonment.

       On appeal, Lynch contends his conviction for possession of PCP for sale must be

reversed because the trial court erred by: (1) admitting evidence of his prior arrest for

possession of PCP for sale; (2) instructing the jury that Lynch's knowledge of the

presence of PCP could be inferred from his prior conviction for possession of PCP; and

(3) permitting a gang expert to testify that Lynch willfully assisted and promoted a

criminal street gang by committing the drug offense. Lynch asserts the evidence is


1      Unless otherwise indicated, further statutory references are to the Penal Code.

                                              2
insufficient to support the jury's finding that he was guilty of the crime of active

participation in a criminal street gang (the gang crime).2 He also contends the trial court

abused its discretion when it refused at sentencing to strike a prior conviction in the

interests of justice. We find no error and affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       At trial, San Bernardino police officers testified that on July 27, 2011, they

executed a search warrant at a business known as the "Sugar Shack," which was located

in an area of San Bernardino known for gang and narcotics activity. Officers had

observed prostitutes frequently entering and leaving the store, and other people briefly

stopping at the business. They also had observed Zackary Jerome Lynch taking out the

trash and standing in front of the Sugar Shack. Police officers knew that Lynch was a

member of the Bacc Street Watts Crips (BSWC).

       When police officers entered the Sugar Shack, Lynch was standing by the

television set. Three other persons, including Bruce Council, were at a pool table.

Council was known to police as a member of the BSWC. Officers found a can of Diet

Coke with a false lid in a refrigerator at the Sugar Shack. The Diet Coke can contained a

vial with approximately 25 milliliters (approximately two ounces) of PCP, enough for

approximately 300 doses of PCP.




2     See People v. Mesa (2012) 54 Cal.4th 191, 197 (Mesa) (referring to an offense
under § 186.22, subd. (a) as "the gang crime").

                                              3
       Officers searched the four individuals who were at the Sugar Shack. Lynch had a

cell phone, wallet and a key ring with two keys. One of Lynch's keys opened the front

door of the Sugar Shack. The other was to his car. Officers did not find any contraband

in Lynch's car or on his person. While at the Sugar Shack, Officer Elizabeth Contreras

looked through the text messages on Lynch's cell phone.3 She found a text message on

Lynch's cell phone stating "I like you wet." "Wet" is a slang term for PCP. Another text

message asked, "Are you up?" — which is a slang phrase used to ask the recipient if he

or she has narcotics for sale.

       Lynch told officers that he was a part owner of the Sugar Shack. He stocked the

store with candy and snacks for sale. Lynch had opened the store for business that day.

When officers arrived, he was turning on the television. Lynch said the other owner's

name was "Black" but could not provide a full name or contact information. Lynch told

officers he used to be a member of the BSWC but left the gang when he was in prison.

       None of the other individuals who were present when officers executed the search

warrant had a key to the Sugar Shack. Police officers could not identify any other owner

or owners of the Sugar Shack, which did not have a business license.




3      Lynch did not object to the introduction of cell phone evidence at trial and raises
no claim on appeal as to the legality of the search and seizure of his cell phone. The
appellate record is silent as to whether the search warrant for the Sugar Shack permitted
the officers to search Lynch's cell phone. (Riley v. California (2014) ___ U.S. ___ [189
L.Ed.2d 430; 134 Sup.Ct. 2473] [absent a specific exception to the warrant requirement, a
warrantless search of a person's cell phone violates the Fourth Amendment's guarantee
against unreasonable search and seizure].)

                                            4
       Over defense objections, the trial court allowed the prosecution to present

evidence of Lynch's prior arrest in January 2009 for possession of PCP for sale (2009

offense). On January 8, 2009, police officers stopped a car in an area of San Bernardino

in which the BSWC were active. Immediately prior to the stop, the officers observed that

a small object was thrown from the car. The officers later recovered a small vial

containing PCP. The vial looked much like the vial that was found in the Diet Coke can

in the refrigerator at the Sugar Shack. Bruce Council, a BWSC gang member, was

driving and Lynch, also a BWSC gang member, was one of two passengers in the car. At

the time, Lynch was on parole for narcotics violations. He told an officer that "he was

from the Bacc Street Crips and his moniker was Snoop." Lynch was holding a styrofoam

cup containing a napkin soaked in PCP. He also had a bundle of toothpicks and several

hundred dollars. Lynch was arrested and charged with possession of PCP for sale, and

with a gang enhancement. Lynch pled nolo contendre to a charge of possession of PCP

for sale in September 2009. Lynch was sentenced to a four-year term, with eligibility for

a 50 percent reduction in time for good conduct. The trial court took judicial notice of

Lynch's 2009 plea.

       Officer Jason Heilman, a gang expert, testified that Lynch was a current, active

member of the BSWC. Heilman based his opinion on a number of factors, including:

Heilman's numerous field contacts with Lynch; Lynch's admission that he had been a

gang member; Lynch's large number of gang tattoos; the number of gang contacts or

gang-related contacts in Lynch's cell phone; Lynch's cell phone text messages identifying

himself as "Mr. Snoop from Bacc Street Crips"; Lynch's association with Bruce Council;

                                             5
and his frequent presence at a "known hang-out area where Bacc Street gang members

have been contacted, have been arrested for selling drugs." Lynch had "Mr. Snoop East

Side Bacc" tattooed on his back.

       Heilman testified that the BSWC was an active criminal organization. Although it

had originated in Los Angeles, the BSWC was very active in narcotics sales in San

Bernardino, including the area in which the Sugar Shack was located. Heilman described

three predicate crimes that were committed by BSWC members: Arlandus Jones was

convicted in October 2011 for selling crack cocaine; Jerry Thompson was convicted in

December 2007 for selling methamphetamine; and Domiya Draper was convicted in May

2007 for transporting cocaine base.

       According to Heilman, Lynch was selling PCP for the benefit of, at the direction

of, and in association with a criminal street gang for the specific purpose of promoting,

furthering, and assisting the criminal conduct of the gang. Although not all crimes by

BSWC members were committed to benefit the gang, Lynch's crime benefitted the

BSWC because it provided revenue and expanded their narcotics territory, allowing it to

make more money and recruit new gang members.

       Lynch testified at trial. He denied possessing PCP in July 2011, asserting he never

opened the refrigerator at the Sugar Shack. When the officers entered, Lynch was

running cable wire to the television. Lynch's friend Blackberry hired him to do odd jobs

at the Sugar Shack. Lynch testified that he did not tell an officer that he was a part owner

of the Sugar Shack. He said he was working there. He only had a key to lock up the

Sugar Shack after he finished his tasks. Lynch stated that he was a member of the BSWC

                                             6
from approximately 1984 to 1986. His mother had nicknamed him "Snoop" when he was

a young boy. Everyone called him that. Lynch acknowledged that he went to prison in

1984 for robbery; in 2004 for possessing PCP, cocaine, and cocaine base for sale; and in

2009 for possession of PCP for sale. Lynch testified that he did not commit any of those

crimes, and he never sold PCP. With respect to all the drug offenses, including the

current offense, Lynch said he was just "at the wrong place at the wrong time, keeping

the wrong company."

      Lynch's girlfriend testified that the Sugar Shack was a fun place for people to hang

out to play pool and darts. She never saw anyone selling drugs there. Another friend,

Donna Peoples, testified that she had known Lynch for 20 years. Peoples was a single

parent. If she had learned that Lynch was a gang member, she would not have him

around her family. Peoples went to the Sugar Shack once because she heard that it had a

nice pool table. She did not see any indication of drug use while she was there.

                                      DISCUSSION

                                            I

                   ADMISSION IN EVIDENCE OF PRIOR OFFENSE
                       OF POSSESSION OF PCP FOR SALE

A.    Additional Procedural Background and Contentions on Appeal

      The People sought to introduce evidence of Lynch's 2009 arrest and conviction for

possession of PCP for sale at trial. (Evid. Code, § 1101, subd. (b).) Lynch opposed the

introduction of evidence regarding the 2009 offense on the ground that it was character

evidence offered to show that he had a predisposition to commit the instant offense.


                                            7
       The trial court admitted evidence of the 2009 offense, reasoning that Lynch's

conduct was consistent in the 2009 offense and the current case, and in both cases Lynch

kept PCP in a small vial in a quantity sufficient for sale. The trial court ruled the

probative value of the evidence on the issue of intent to sell outweighed any potential

prejudice to Lynch. Further, any direct evidence of Lynch's involvement in BWSC drug

sales was relevant to the charge of criminal street gang activity, and its probative value

outweighed any prejudice to Lynch.

       On appeal, Lynch contends the trial court abused its discretion by admitting the

prior offense evidence. Specifically, Lynch argues that evidence of his 2009 arrest and

conviction should have been excluded under Evidence Code section 1101, subdivision (a)

because it showed only that he had a predisposition to commit the crime of possession of

PCP for sale, and the two offenses lacked sufficient similarity to be probative on the issue

of intent. He further argues that the trial court erred when it did not exclude evidence of

the 2009 offense because he was not contesting the finding that the PCP found in the vial

in the refrigerator at the Sugar Shack was in an amount sufficient for sale, and therefore

the admission of the evidence to show intent to sell was more prejudicial than probative.

Lynch also asserts the 2009 offense was not relevant to prove the primary criminal

activities of the BSWC because there was no proof the 2009 offense was committed for a

gang-related motive. Finally, he contends the admission of propensity evidence deprived

him of his fundamental rights to due process, and the error was not harmless.




                                              8
B.     Overview of Relevant Legal Principles and Standard of Review

       " 'Unlawful possession of a controlled substance for sale requires proof the

defendant possessed the contraband with the intent of selling it and with knowledge of

both its presence and illegal character.' " (People v. Harris (2000) 83 Cal.App.4th 371,

374 (Harris).) "The elements of the offense of possession of PCP or other restricted

drugs for sale are physical or constructive possession with knowledge of the presence and

narcotic character of the drugs . . . ." (People v. Johnson (1984) 158 Cal.App.3d 850, 853

(Johnson), citing People v. Williams (1971) 5 Cal.3d 211, 215, and People v. Jenkins

(1979) 91 Cal.App.3d 579, 583.)

       "Possession may be actual or constructive." (People v. Showers (1968) 68 Cal.2d

639, 643.) "Constructive possession 'occurs when the accused maintains control or a

right to control the contraband; possession may be imputed when the contraband is found

in a place which is immediately and exclusively accessible to the accused and subject to

his dominion and control, or to the joint dominion and control of the accused and

another.' " (Johnson, supra, 158 Cal.App.3d at p. 854.)

       The elements of possession of a controlled substance with intent to sell "may be

established by circumstantial evidence and any reasonable inferences drawn from such

evidence." (People v. Groom (1964) 60 Cal.2d 694, 696-697; see Harris, supra, 83

Cal.App.4th at p. 374 [intent to sell may be established by circumstantial evidence].)

Evidence that a defendant committed a prior drug-related offense may be admissible to

prove the defendant's knowledge and intent with respect to a charged drug-related

offense. (See, e.g., People v. Thorton (2000) 85 Cal.App.4th 44, 49-50 [evidence of

                                             9
defendant's use of heroin admissible to show knowledge of its narcotic character]; People

v. Pijal (1973) 33 Cal.App.3d 682, 691 (Pijal) [defendant's knowledge of the narcotic

contents of the drug and his intent to sell were at issue, therefore evidence of his prior

narcotics offense was clearly admissible to show his guilty knowledge, motive and

intent].)

        Lynch was also charged with violating section 186.22, subdivision (a), which

applies to " '[a]ny person who actively participates in any criminal street gang with

knowledge that its members engage in or have engaged in a pattern of criminal gang

activity, and who willfully promotes, furthers, or assists in any felonious criminal

conduct by members of that gang.' " (Mesa, supra, 54 Cal.4th at p. 197.)

        As a general rule, evidence that the defendant has committed crimes other than

those for which he is on trial is inadmissible to prove bad character, predisposition to

criminality, or the defendant's conduct on a specific occasion. (People v. Avila (2006) 38

Cal.4th 491, 586; People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Evidence Code

section 1101, subdivision (a) prohibits admission of evidence of a person's character,

including evidence of character in the form of specific instances of uncharged

misconduct, to prove the conduct of that person on a specified occasion. (Ewoldt, at

p. 393.)

        However, Evidence Code section 1101, subdivision (b) permits the trial court to

admit evidence showing that the defendant "committed a crime, civil wrong, or other




                                             10
act"4 when relevant to prove a material fact at issue, such as identity, motive, or

knowledge. (Evid. Code, § 1101, subd. (b); People v. Roldan (2005) 35 Cal.4th 646, 705

(Roldan), overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390,

421, & fn. 22; Ewoldt, supra, 7 Cal.4th at p. 400 [Evid. Code, § 1101 does not prohibit

the admission of evidence of misconduct when it is offered as evidence of some other

fact in issue, such as motive, common scheme or plan, preparation, intent, knowledge,

identity, or absence of mistake or accident].)

       "Evidence of uncharged crimes is admissible to prove identity, common design or

plan, or intent only if the charged and uncharged crimes are sufficiently similar to support

a rational inference of identity, common design or plan, or intent." (Carter, supra, 36

Cal.4th at p. 1147.) Admissibility depends on the materiality to the current offense of the

fact sought to be proved, the tendency of the uncharged act to prove the material fact, and

whether there is any other rule requiring exclusion of the uncharged act. (Walker, supra,

139 Cal.App.4th at p. 796, citing Roldan, supra, 35 Cal.4th at p. 705.)

       "In addition to its relevance to an issue other than predisposition or propensity, to

be admissible under [Evidence Code] section 1101, subdivision (b), the probative value

of the evidence of uncharged crimes 'must be substantial and must not be largely


4      Various terms have been used as shorthand for this phrase. (See, e.g. Ewoldt,
supra, 7 Cal.4th at p. 393 (maj. opn. of George, C.J.) ["uncharged misconduct"]; id. at
p. 404 (dis. opn. of Mosk, J.) ["other crimes evidence"]; People v. Carter (2005) 36
Cal.4th 1114, 1147 (Carter) ["uncharged crimes"]; People v. Walker (2006) 139
Cal.App.4th 782, 806 (Walker) ["uncharged acts"].) Here, we use the phrases "2009
offense" or "uncharged crime" to refer to Lynch's arrest and conviction in 2009 for
possession of PCP for sale.

                                             11
outweighed by the probability that its admission would create a serious danger of undue

prejudice, of confusing the issues, or of misleading the jury.' " (Walker, supra, 139

Cal.App.4th at p. 796, quoting People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp); Ewoldt,

supra, 7 Cal.4th at pp. 404-405.)

       A trial court's determination of the admissibility of evidence of uncharged crimes

is generally reviewed for an abuse of discretion. (Kipp, supra, 18 Cal.4th at p. 369.)

C.     Analysis

       1.     The trial court did not abuse its discretion when it allowed the People to
               introduce evidence of the 2009 offense under Evidence Code section 1101,
               subdivision (b).

       The trial court found that the circumstances of Lynch's prior arrest and conviction

for possession of PCP for sale were relevant to the current charges of possession of PCP

for sale and active participation in criminal street gang activity, and that there was

sufficient similarity between the 2009 offense and the current drug charge to support a

rational inference that Lynch intended to possess PCP for sale. The trial court stated, "In

both instances [Lynch] kept PCP in a small hand-held cylindrical object in a quantity

sufficient to sell. Although not distinctive enough for an identity analysis, it is certainly

sufficient for the jury to infer that in light of the defendant's prior event the defendant in

this event had the same intent to sell as he had in the previous case." In addition, the trial

court found that any direct evidence of Lynch's involvement in BWSC drug sales was

relevant to the gang crime allegation. The trial court found that the probative value of the

2009 offense intent far outweighed any potential prejudice to Lynch on the substantive

drug charge or the gang crime allegation.

                                              12
       We conclude that the trial court did not abuse its discretion in determining that the

charged and uncharged crimes were sufficiently similar to be relevant on the issue of

whether Lynch harbored the same intent — to possess PCP for the purpose of sale — as

he had in 2009. (See Kipp, supra, 18 Cal.4th at p. 371.) To establish relevance on the

issue of intent, the uncharged crime must be sufficiently similar to the charged offense to

support a rational inference the defendant most likely harbored the same intent on each

occasion. (Ewoldt, supra, 7 Cal.4th at p. 402; Carter, supra, 36 Cal.4th at p. 1147.)

       We reject as overly simplistic Lynch's argument that the two offenses are not

sufficiently similar because PCP found on a napkin in a Styrofoam cup (the 2009 offense)

is not the same as PCP hidden in a glass vial in a stash can of Diet Coke (the 2011

offense). Lynch ignores the fact that on both occasions, police officers recovered similar

glass vials containing PCP: that one glass vial was hidden in a stash can and the other

was thrown from the automobile in which Lynch was riding immediately before his arrest

is not determinative. Further, in addition to the look-alike glass vials containing PCP,

other similarities between the two offenses would allow the jury to draw a reasonable

inference Lynch possessed PCP for the purpose of sale and that he actively participated in

a criminal street gang with knowledge that the gang's members engage in or have

engaged in a pattern of criminal activity. (§ 186.22, subd. (a).) In both cases, Lynch was

in actual or constructive possession of a saleable quantity of PCP; Lynch was in the

company of Bruce Council, a fellow member of the BSWC; and Lynch possessed PCP in

the specific area of San Bernardino in which the BSWC was most active. Thus, there is



                                             13
sufficient similarity between the two incidents to establish relevance on the issue of

intent. (Kipp, supra, 18 Cal.4th at p. 371.)

       Lynch also argues the trial court erred when it admitted the 2009 offense into

evidence because he did not contest the narcotic character of the drug or that it was of

sufficient quantity for sale. His argument is unavailing. The prosecution's burden to

prove all the elements of a criminal offense beyond a reasonable doubt "is not relieved by

a defendant's tactical decision not to contest an essential element of the offense." (Estelle

v. McGuire (1991) 502 U.S. 62, 69-70; see People v. Thornton (2000) 85 Cal.App.4th 44,

49 [generally, in a criminal case, the prosecution cannot be compelled to stipulate to an

essential element of the offense].) When a defendant pleads not guilty, he or she places

all issues in dispute, and thus the perpetrator's identity, intent and motive are all material

facts. (Roldan, supra, 35 Cal.4th at pp. 705-706.)

       Even if the defense had stipulated to the narcotic quality and saleable quantity of

the PCP that was in the refrigerator at the Sugar Shack, which it did not, the 2009 offense

would still be relevant to whether Lynch had the intent to possess PCP for sale. Lynch's

defense was he never sold PCP, and that with respect to all the drug offenses, including

the current offense, he was just "at the wrong place at the wrong time, keeping the wrong

company." Because of the similarities between the uncharged and charged crimes, a jury

could draw a reasonable inference that Lynch had the intent to possess PCP for sale in

2011 because he had possessed the same illegal substance in 2009 in the same type of

easily-concealable vial, and he was in the company of the same gang member in the same

area of San Bernardino in which the BCWC were known to traffic in narcotics. Thus, the

                                               14
trial court did not err when it admitted the 2009 offense into evidence notwithstanding

Lynch's assertion he was not contesting the nature or saleable quantity of the PCP.

       We conclude that the 2009 offense, as detailed in the statement of facts, was

relevant to establishing Lynch's intent to sell PCP, and to his knowledge of, and

participation in, the activities of a criminal street gang. It is therefore admissible under

Evidence Code section 1101, subdivision (b).

       2.     The trial court correctly determined that the probative value of the prior
              act outweighed any undue prejudice to the defendant under Evidence Code
              Section 352.

       Evidence Code section 352 states in pertinent part the court may exclude evidence

if its probative value is substantially outweighed by the probability its admission will

create substantial danger of undue prejudice. Prejudice is inherent whenever other crimes

evidence is admitted. (Carter, supra, 36 Cal.4th at p. 1150, citing Ewoldt, supra, 7

Cal.4th at p. 404.) However, undue prejudice exists when the evidence " 'uniquely tends

to evoke an emotional bias against a party as an individual, while having only slight

probative value with regard to the issues.' " (People v. Robinson (2005) 37 Cal.4th 592,

632 (Robinson), quoting People v. Crittenden (1994) 9 Cal.4th 83, 134.)

       "The weighing process under [Evidence Code] section 352 depends upon the trial

court's consideration of the unique facts and issues of each case, rather than upon the

mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th

1301, 1314 (Jennings).) On appeal, a trial court's resolution of these issues is reviewed

for abuse of discretion. (Carter, supra, 36 Cal.4th at p. 1149.) It will not be disturbed on

appeal unless " 'the prejudicial effect of the evidence clearly outweighed its probative

                                              15
value.' " (Jennings, at pp. 1314-1315, citing People v. Brown (1993) 17 Cal.App.4th

1389, 1396.)

       Lynch argues that because he was not convicted of any gang-related charges in

connection with the 2009 offense, the admission of that offense to show knowledge of the

gang's criminal activities was highly prejudicial to him and had minimal, if any, probative

value. Citing People v. Tran (2011) 51 Cal.4th 1040 (Tran), Lynch contends that

because the prior offense was never proved to be gang related, it is not admissible to

prove a predicate act for purposes of establishing the BSWC's primary criminal activities

or Lynch's knowledge of the gang's criminal activities.

       Lynch misreads Tran. In that case, the defendant was convicted of first degree

murder, premeditated murder and active participation in a criminal street gang. (Tran,

supra, 51 Cal.4th at p. 1046.) At trial, Tran objected to the admission of prior acts to

show a pattern of criminal gang activity. A witness testified about a series of extortions

Tran and several other gang members had made three to four years before the current

offense. The prosecution provided the jury with certified copies of the court record

establishing that Tran was convicted, on a plea of guilty, for extortion. (Tran, supra, at

pp. 1045-1046.) Like Lynch, Tran was not convicted of an offense under section 186.22,

subdivisions (a) or (b) in the prior offense. The California Supreme Court stated, "We

find the admission of evidence of defendant's conviction of extortion and related

activities in 1993 and 1994 to have been a proper exercise of the trial court 's discretion

under Evidence Code section 352. The evidence was highly probative on several issues

relevant to the charge of active participation in a criminal street gang, providing direct

                                             16
evidence of a predicate offense, that defendant actively participated in [a gang], and that

defendant knew [the gang] engaged in a pattern of criminal gang activity." (Tran, at

p. 1050.)

       Similarly, here, the trial court did not abuse its discretion when it ruled that

evidence of Lynch's conviction of possession of PCP for sale in 2009 was relevant to

proof of a predicate offense, that he actively participated in a gang, and that he knew the

gang engaged in a pattern of criminal activity. The 2009 incident occurred in an area of

San Bernardino in which the BSWC were operating. The BSWC was involved in

narcotics trafficking. During the 2009 incident, Lynch admitted that he was a member of

the BSWC. He was accompanied by another gang member. Thus the record belies

Lynch's assertion that there was no showing that the 2009 offense was gang related. In

addition, there was nothing inflammatory about the testimony describing the 2009

offense. It did not involve a crime of violence and was less egregious than the current

offense, which involved selling PCP from the type of establishment that would attract

young people to its doors.

       We conclude that the trial court acted within its discretion in ruling that the

probative value of the 2009 offense to the issue of possession with intent to sell and the

gang crime was not substantially outweighed by danger of undue prejudice. 5 When the



5      In addition, the trial court gave a limiting instruction, telling the jury that evidence
of the 2009 offense could not be considered to prove Lynch had a bad character or was
disposed to commit crimes. (Tran, supra, 51 Cal.4th at p. 1050 [use of limiting
instruction is a factor in determining whether evidence of an uncharged act should have
been excluded under Evid. Code, § 352].)
                                              17
evidence has probative value, and the potential for prejudice resulting from its admission

is within tolerable limits, it is not unduly prejudicial and its admission is not an abuse of

discretion. (Tran, supra, 51 Cal.4th at p. 1049; Robinson, supra, 37 Cal.4th at p. 632

[evidence is not unduly prejudicial merely because it strongly implicates a defendant and

casts him in a bad light].)

       3.     The admission of the 2009 offense did not violate Lynch's due process
              rights.

       We are not persuaded by Lynch's argument the admission in evidence of the 2009

offense violated his federal constitutional right to a fair trial. " ' "The admission of

relevant evidence will not offend due process unless the evidence is so prejudicial as to

render the defendant's trial fundamentally unfair." ' " (People v. Holford (2012) 203

Cal.App.4th 155, 180; accord, People v. Falsetta (1999) 21 Cal.4th 903, 913; People v.

Paniagua (2012) 209 Cal.App.4th 499, 517.)

       As we discussed, the court did not err when it determined that the prior offense

was relevant to the issue of intent to sell PCP and provided direct evidence of Lynch's

knowledge of the activities of the BSWC, a criminal street gang. (See Jennings, supra,

81 Cal.App.4th at p. 1314 [the trial court's careful weighing of prejudice against

probative value protect a defendant's due process right to a fundamentally fair trial].)

Further, any error in admitting the 2009 offense in evidence is harmless.6 Lynch testified



6       "Under article VI, section 13 of the California Constitution, error in the admission
or exclusion of evidence warrants reversal of a judgment only if an examination of 'the
entire cause, including the evidence,' discloses the error produced a 'miscarriage of
justice.' " (People v. Mullens (2004) 119 Cal.App.4th 648, 658-659 (Mullens), quoting
                                              18
that he did not participate in any drug-related offense at any time, asserting that he merely

was "at the wrong place at the wrong time, keeping the wrong company" on both

occasions. Thus, the 2009 offense could have been admitted in evidence on rebuttal to

show lack of mistake or inadvertence (see Ewoldt, supra, 7 Cal.4th at p. 400), and the

jury could have reasonably determined that Lynch was not, in fact, an innocent bystander

at the Sugar Shack, as he claimed. Thus, it is not reasonably probable the uncharged

crime evidence would have been excluded and the jury would have reached a result more

favorable to Lynch. (Mullens, supra, 119 Cal.App.4th at p. 659, citing People v. Watson

(1956) 46 Cal.2 818, 836 (Watson).)

                                              II

                          CLAIM OF INSTRUCTIONAL ERROR

       Lynch contends the trial court improperly instructed the jury that it could draw a

reasonable inference that Lynch knew of the presence of the PCP at the Sugar Shack in

2011 because he had possessed PCP for sale in 2009. Although couched as instructional

error, Lynch does not claim the instruction, as given, constituted legal error.7 Rather, his



People v. Breverman (1998) 19 Cal.4th 142, 173.) " '[A] "miscarriage of justice" should
be declared only when the court, "after an examination of the entire cause, including the
evidence," is of the "opinion" that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.' " (Mullens, at
p. 659, citing Watson, supra, 46 Cal.2d at p. 836.)

7        The record does not support Lynch's premise that the trial court instructed the jury
that it reasonably could infer that Lynch knew of the presence of PCP in the refrigerator
because he had previously possessed PCP for sale. Before witnesses testified abo ut the
2009 offense, the trial court gave a limiting instruction to the jury that the uncharged
crime evidence was being admitted for the jury to consider whether the uncharged crime
                                             19
claim focuses on whether the jury may reasonably infer from the 2009 offense that Lynch

knew of the presence of the PCP in the refrigerator at the Sugar Shack. Lynch tacitly

acknowledges that, if there is sufficient similarity between the uncharged and charged

crimes, it is reasonable to infer that a person knew of the presence of an illegal substance

because he had knowingly possessed the same illegal substance on an earlier occasion. 8

       The crux of Lynch's argument is there is insufficient similarity between the

uncharged and charged crimes because, in 2009, he was riding in a car and was holding a

styrofoam cup containing a napkin soaked in PCP,9 whereas, in 2011, he was in



showed the element of intent to sell PCP, as alleged in the charged crime. The trial court
further informed the jury that it may use, consider or discard the uncharged crime
evidence. At the close of trial, in addition to giving the jury the standard instruction that
it may consider the uncharged crime for the limited purpose of deciding whether Lynch
knew of the presence of the illegal substance, the trial court instructed the jury, "Do not
consider this evidence for any other purpose except for the limited purpose of intent ."
(The standard jury instruction refers to "intent" and "knowledge." (CALCRIM No. 375).)
        "Jurors are presumed able to understand and correlate instructions and are further
presumed to have followed the court's instructions." (People v. Sanchez (2001) 26
Cal.4th 834, 852.) We therefore presume the jury considered the uncharged crime only
for the limited purpose of determining whether Lynch had the intent to sell PCP.

8       Lynch correctly points out that the cases concerning the "knowledge" element
under Evidence Code section 1101, subdivision (b) speak in terms of using an uncharged
crime to show a defendant's knowledge of the narcotics character of the substance. (See,
e.g., People v. Williams (2009) 170 Cal.App.4th 587, 607; People v. Ellers (1980) 108
Cal.App.3d 943, 894; Pijal, supra, 33 Cal.App.3d at p.691.) However, Lynch does not
cite, and we have not located, any case that prohibits the trial court from instructing the
jury that it may consider an uncharged crime to infer that the defendant knew of the
presence of the illegal substance in the charged crime.

9      In his argument, Lynch ignores the fact that police officers observed an object
being thrown from the car in which Lynch was riding and discovered that the object was
a small vial containing a saleable amount of PCP.

                                             20
constructive possession of a vial of PCP that was hidden in a Diet Coke can in a

refrigerator at a business establishment. However, in view of the evidence of the many

similarities between the two offenses, this is a distinction without a difference.

       Lynch was in possession, actual or constructive, of PCP on both occasions.

Although Lynch was holding a styrofoam cup containing a napkin soaked in PCP in

2009, a small glass vial containing a saleable amount of PCP was recovered by police

officers on both occasions. Lynch was an active member of the BSWC on both

occasions. Each offense occurred in the same area of San Bernardino where the BSWC

was actively involved in narcotics sales. Lynch was in the company of the same gang

member on both occasions. Thus Lynch's prior conviction for possession of PCP for sale

in 2009 permits the reasonable inference that Lynch possessed PCP with the intent to sell

in 2011 and therefore knew that there was PCP in the refrigerator at the Sugar Shack.

       We therefore conclude that the trial court did not err when it instructed the jury

that it may, but was not required to, consider the 2009 offense for the limited purpose of

deciding whether Lynch knew of the presence of PCP at the Sugar Shack.

                                             III

                               GANG EXPERT TESTIMONY

A.     Contentions on Appeal and Additional Background

       Relying on People v. Killebrew (2002) 103 Cal.App.4th 644, 658 (Killebrew),

Lynch contends the trial court committed prejudicial error when it permitted gang expert

Heilman to testify over defense objections that Lynch committed the underlying offense



                                             21
of possession of PCP for sale and that in doing so, Lynch willfully assisted and promoted

the BSWC in violation of section 186.22, subdivision (b).

      Lynch complains the following testimony violated Killebrew:

          "[The Prosecution]: Officer Heilman, based on your background,
          your training, your experience as a police officer for the last eight-
          and-a-half years, do you have an opinion as to whether this crime,
          being the crime of possession for PCP for sale by the defendant on
          . . . July 27th of 2011 was committed for the benefit of, at the
          direction of, or in association with a criminal street gang for the
          specific purpose of promoting, furthering, or assisting in the criminal
          conduct as a member of this gang?

          "[The Defense]: Objection, improper expert testimony.[10]

          "[The Court]: Overruled. He can testify.

          "The Witness: Yes, I do.

          "[The Prosecution]: What is that opinion?

          "[The Defense]" Objection.

          "[The Court]: What is that?

          "[The Defense]: Renew my objection.

          "[The Court]: It will be renewed. It will be deemed a standing
          objection. [¶] . . . [¶] You can answer.

          "The Witness: That it was done to benefit and further the Bacc
          Street Watts Crips gang."




10      To the extent Lynch complains that the question was improper because it was not
in the form of a hypothetical question, he has forfeited this issue on appeal. The record
shows that Lynch did not object to the form of question. "A party may not assert theories
on appeal which were not raised in the trial court." (In re Dakota H. (2005) 132
Cal.App.4th 212, 222.)
                                            22
          "The Witness: In '96 members of its gang were arrested in Las
          Vegas as part of a big federal task force for narcotics trafficking.
          This gang has been out here in San Bernardino since the '90's and
          heavily active in the 2000's and beyond in selling drugs within the
          city, particularly that central Phoenix area. And the reason they do
          this is because they have a small turf in Watts. So only so many
          people can you sell drugs to and make money off of, only so many
          customers. So you branch out, come out to San Bernardino, and you
          take over an area and start selling drugs there. In this case Mr.
          Lynch is furthering that by continuing that same behavior of selling
          dope, making money for the gang, and expanding the gang's drug
          trade outside of their little turf of Watts. They also get the benefit
          too of coming out to the City of San Bernardino, being able to fly
          under the radar a little bit because they are an L.A.-based gang.
          They may be a little less known out here. So they come out here,
          they sell the drugs, they get the new clientele, make more money,
          helps the gang. And that's where the benefit comes from and this
          gang's history of doing that. Mr. Lynch is just continuing that type
          of behavior."

B.     Statement of Law and Standard of Review

       " 'A witness may not express an opinion on a defendant's guilt.' " (People v. Vang

(2011) 52 Cal.4th 1038, 1048 (Vang).) Nevertheless, "[t]estimony in the form of an

opinion that is otherwise admissible is not objectionable because it embraces the ultimate

issue to be decided by the trier of fact." (Evid. Code, § 805.) " 'There is no hard and fast

rule that the expert cannot be asked a question that coincides with the ultimate issue in

the case.' " (People v. Valdez (1997) 58 Cal.App.4th 494, 507 (Valdez), quoting People

v. Wilson (1944) 25 Cal.2d 341, 349.)

       "It is well settled that expert testimony about gang culture and habits is the type of

evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a

gang allegation." (People v. Ferraez (2003) 112 Cal.App.4th 925-930 (Ferraez).) "[I]n


                                             23
some circumstances, expert testimony regarding the specific defendants might be

proper." (Vang, supra, 52 Cal.4th at p. 1048, fn. 4; see Valdez, supra, 58 Cal.App.4th at

p. 507 [gang expert testified the defendant was a member of a particular gang and that his

activities were undertaken on behalf of the gang], cited with approval in People v. Prince

(2007) 40 Cal.4th 1179, 1227.)

       We review the trial court's admission of expert testimony for abuse of discretion.

(People v. Williams (1997) 16 Cal.4th 153, 196-197.) The trial court's exercise of

discretion will not be reversed on appeal except on a showing it was made in an arbitrary,

capricious or patently absurd manner, and resulted in a manifest miscarriage of justice.

The appellant has the burden of establishing that the trial court abused its discretion,

prejudicing the defendant. (People v. Hill (2011) 191 Cal.App.4th 1104, 1122.)

C.     Analysis

       We reject Lynch's assertion the prosecutor asked Heilman to testify that Lynch

committed the underlying offense of possession of PCP for sale. The record shows the

prosecutor asked Heilman whether the crime of possession for PCP for sale by the

defendant on July 27, 2011, was committed for the benefit of, at the direction of, or in

association with a criminal street gang for the specific purpose of promoting, furthering,

or assisting in the criminal conduct as a member of this gang. This question assumes that

Lynch did, in fact, commit the drug-related crime, but the prosecutor did not ask Heilman

to opine whether Lynch was guilty of possession of PCP for sale. Thus, the question

posed to Heilman was not whether Lynch was guilty of the drug-related offense but

whether, assuming Lynch had engaged in the charged crime, whether that crime was

                                             24
committed for a gang purpose as defined in section 186.22, subdivision (b). The court

did not abuse its discretion when it determined the testimony of the gang expert would be

of assistance to the jury in understanding the criminal activities of the BWSC, its

motivation for establishing an area in San Bernardino for drug sales, and the similarity of

Lynch's alleged conduct to the gang's historical practices. (See Valdez, supra, 58

Cal.App.4th at pp. 507-509.)

       This case is not similar to Killebrew. In that case, the gang expert's opinion was

the only evidence the prosecution offered to establish the elements of the crime. As such,

it was "the type of opinion that did nothing more than inform the jury how [the expert]

believed the case should be decided." (Killebrew, supra, 103 Cal.App.4th at p. 658.)

Here, by contrast, gang expert Heilman testified about the history and activities of the

BSWC, particularly in the area in which the Sugar Shack was located. He explained how

the BSWC's reputation was enhanced through drug sales and how it used the proceeds to

expand its territory, recruit new members and sell more drugs. Heilman did not testify

that the gang enhancement was true. Instead, he said the BWSC would benefit

financially by Lynch's sale of PCP.

       In view of Heilman's expertise in evaluating the history, customs, and behavior of

the BWSC, we cannot say the trial court abused its discretion in finding that an expert

opinion about whether Lynch acted for the benefit of the BSWC would be of assistance

to the jury in evaluating the evidence and determining whether the prosecution had

proved the enhancement allegation. Such an opinion was not tantamount to an opinion of

guilt or, in this case, that the enhancement allegation was true, for there were other

                                             25
elements to the allegation that had to be proved. (Valdez, supra, 58 Cal.App.4th at

p. 509.) Thus, we are not persuaded the testimony of the gang expert exceeded

permissible legal limits.

                                             IV

               ACTIVE PARTICIPATION IN A CRIMINAL STREET GANG

       Lynch argues the evidence is insufficient to support his conviction for the crime of

active criminal street gang participation under section 186.22, subdivision (a).

Specifically, Lynch argues there is no evidence to support a finding he was actively

participating in a criminal street gang and engaged in drug sales for purpose of promoting

the BSWC. Lynch contends that under Ferraez, supra, 112 Cal.App.4th 925, the opinion

of the prosecution's gang expert, without more, is not sufficient to sustain a finding that

the charged drug offense was gang related. (Id. at p. 931.) Lynch argues that the gang

expert's testimony was not coupled with other evidence from which the jury could

reasonably infer that Lynch willfully promoted, furthered, or assisted in felonious

criminal conduct by members of the BWSC in July 2011.

       To prove a charge under section 186.22, subdivision (a), the prosecution must

prove that the defendant: (1) actively participated in a criminal street gang; (2) knew that

the gang's members engage in or have engaged in a pattern of criminal gang activity; and

(3) willfully promoted, furthered, or assisted in any felonious criminal conduct by

members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523 (Lamas).) The

"gravamen of the substantive offense" under section 186.22, subdivision (a) is "active

participation in a criminal street gang." (People v. Albillar (2010) 51 Cal.4th 47, 55.)

                                             26
"[A]ctive participation in a criminal street gang" means that the defendant's involvement

with the criminal street gang "is more than nominal or passive." (People v. Castenada

(2000) 23 Cal.4th 743, 746, 747.)

       We review the appellate record for substantial evidence to support the verdict.

(People v. Zamudio (2008) 43 Cal.4th 327, 357.) The evidence must be reasonable,

credible, and of solid value such that a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt. (Ibid.) "[W]e review the evidence in the light most

favorable to the prosecution and presume in support of the judgment the existence of

every fact the jury could reasonably have deduced from the evidence." (Ibid.) We do not

resolve issues of credibility or evidentiary conflicts. (Ibid.)

       Ferraez, on which Lynch relies, does not assist him. In that case, our colleagues

in Division Three stated:

       "Undoubtedly, the expert's testimony alone would not have been sufficient
       to find the drug offense was gang related. But here it was coupled with
       other evidence from which the jury could reasonably infer the crime was
       gang related. Defendant planned to sell the drugs in Las Compadres gang
       territory. His statements to the arresting officer that he received permission
       from that gang to sell the drugs at the swap mall and his earlier admissions
       to other officers that he was a member of Walnut Street, a gang on friendly
       terms with Las Compadres, also constitute circumstantial evidence of his
       intent." (Ferraez, supra, 112 Cal.App.4th at p. 931.)

       Here, the jury could reasonably infer the crime of possession of drugs for sale was

gang related. The Sugar Shack was located in an area of San Bernardino that was known

for narcotics activity. Police officers were aware that BSWC gang members sold

narcotics in the location of the Sugar Shack. Officer Heilman testified that narcotics

sales constituted a primary activity of the BSWC. Lynch possessed PCP for sale in the

                                              27
Sugar Shack, a candy store, as a cover for drug sales. He was the only person with a key

to the Sugar Shack and no other owner was ever identified. Officer Contreras testified

that Lynch had text messages on his cell phone asking him in slang language whether he

had any PCP for sale.

       Heilman further testified that establishing a successful drug business at the Sugar

Shack would benefit and promote the BWSC by increasing their drug revenue and

permitting it to expand its criminal enterprise. Detective Contreras testified that the

amount of PCP was sufficient for approximately 300 doses and would generate well over

$1,000 in profit for the BSWC. When arrested in 2009, Lynch was in the company of

Bruce Council, who was known to be a member of the BSWC; Council was also present

when Lynch was arrested at the Sugar Shack for possession of PCP for sale in 2011.

Lynch admitted to police officers that he had been a member of the BSWC, and there

were a number of factors that indicated Lynch was still an active BSWC member,

including his continued use of his gang moniker; his continued association with active

BSWC members; the number of Lynch's tattoos, some of which were relatively recent,

stating his gang affiliation; and the number of gang contacts in his cell phone directory.

       There is substantial evidence to show that Lynch actively participated in a criminal

street gang by possessing PCP for sale, and that he knew that the gang's members engage

in or have engaged in a pattern of criminal gang activity, and willfully promoted,

furthered, or assisted in any felonious criminal conduct by members of that gang.

(Lamas, supra, 42 Cal.4th at p. 523.) The evidence supports the jury's finding that Lynch



                                             28
was actively participating in a criminal street gang within the meaning of section 186.22,

subdivision (a).

                                              V

                THE COURT DID NOT ABUSE ITS DISCRETION
      WHEN IT DENIED LYNCH'S REQUEST TO DISMISS HIS PRIOR FELONY
        CONVICTION ALLEGATIONS UNDER THE THREE STRIKES LAW

       Lynch contends the trial court abused its discretion under section 1385 by denying

his request to dismiss a prior felony conviction allegation. He argues that other than his

conviction for robbery in 1984, when he was 18 years old, all his prior offenses are "non-

violent, non-serious, drug-related offenses." Lynch further argues that at the time of his

arrest for possession of PCP for sale, he was unarmed, had no contraband on his person,

and willingly answered police officers' questions. Lynch did not have any prior

convictions for gang-related offenses. Lynch argues the sentencing enhancements,

without regard to the strike prior, subjected him to an additional 20 years' imprisonment,

which adequately addressed the trial court's concern that he had displayed a consistent

pattern of criminal conduct. Lynch contends the error was prejudicial because it added

five years to his sentence and made him ineligible for enhanced conduct credits, which

may have allowed him to reduce his total term of imprisonment by approximately 30

percent. (See § 2933, subd. (b).)

       Section 1385, subdivision (a) provides in relevant part: "The judge or magistrate

may, either of his or her own motion or upon the application of the prosecuting attorney,

and in furtherance of justice, order an action to be dismissed." Under section 1385,

subdivision (a), a trial court has the discretion to dismiss prior felony conviction

                                             29
allegations under the Three Strikes law. (People v. Superior Court (Romero) (1996) 13

Cal.4th 497, 529-530.)

       In deciding whether to dismiss a prior felony conviction allegation, a trial court

must consider the constitutional rights of the defendant and the interests of society.

(People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531.) "[I]n ruling

whether to strike or vacate a prior serious and/or violent felony conviction allegation or

finding under the Three Strikes law, on its own motion, 'in furtherance of justice'

pursuant to . . . section 1385[, subdivision ](a), or in reviewing such a ruling, the court in

question must consider whether, in light of the nature and circumstances of his present

felonies and prior serious and/or violent felony convictions, and the particulars of his

background, character, and prospects, the defendant may be deemed outside the scheme's

spirit, in whole or in part, and hence should be treated as though he had not previously

been convicted of one or more serious and/or violent felonies." (People v. Williams

(1998) 17 Cal.4th 148, 161.)

       The reasons for dismissal of a prior felony conviction allegation must be set forth

in the trial court's order entered in the minutes. (§ 1385, subd. (a); People v. Williams,

supra, 17 Cal.4th at p. 161.) However, section 1385, subdivision (a) does not require a

trial court to state its reasons for declining to dismiss a prior felony conviction alle gation.

(People v. Zichwic (2001) 94 Cal.App.4th 944, 960.)

       The trial court's decision whether to dismiss a prior felony conviction allegation is

reviewed for abuse of discretion. (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.)

"Where the record demonstrates that the trial court balanced the relevant facts and

                                               30
reached an impartial decision in conformity with the spirit of the law, we shall affirm the

trial court's ruling, even if we might have ruled differently in the first instance. (People v.

Wade (1959) 53 Cal.2d 322, 338.)" (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

       The trial court said Lynch's record showed a consistent pattern of crime. Lynch

continued to commit the same types of crimes whenever he was released from prison on

parole. The longest period Lynch was out of custody since he was 18 years old was

between February 1992 and August 1995. Lynch did not appear to the trial court to be

interested in or amenable to rehabilitation. The trial court said it was aware of its

discretion to strike any or all of the priors. Its decision was informed by the nature and

circumstances of Lynch's crime, including the large quantity of PCP; the sophistication

and planning underlying the crime; Lynch's serious history of criminal convictions; his

unsatisfactory performance on probation and parole; and the strong likelihood he would

reoffend if not in prison for a significant period.

       The record shows that the trial court considered the nature and circumstances of

Lynch's present felonies and prior serious and/or violent felony convictions, and the

particulars of his background, character, and prospects. The trial court did not abuse its

discretion when it denied Lynch's request to dismiss one or more of his previous serious

and/or violent felonies. (People v. Williams, supra, 17 Cal.4th at p. 161.) In addition, we

reject Lynch's argument that his convictions for possession of PCP for sale were not

serious crimes. The circumstances of his current offense were particularly serious. The

record shows that Lynch had a large quantity of PCP for sale in what was described as a

"candy shop," with a pool table and television. The record permits the reasonable

                                              31
inference this location would attract a steady clientele, including young adults and

teenagers, who would then have easy access to the drug. We conclude the trial court did

not abuse its discretion under section 1385 when it did not dismiss Lynch's prior felony

conviction allegation, and sentenced him accordingly.

                                      DISPOSITION

       The judgment is affirmed.



                                                                                  IRION, J.

WE CONCUR:



MCCONNELL, P. J.



AARON, J.




                                            32
