Filed 2/26/14 P. v. Blanchette CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047393

         v.                                                            (Super. Ct. No. 11HF1498)

IAN JON BLANCHETTE et al.,                                             OPINION

     Defendants and Appellants.



                   Appeal from a judgment of the Superior Court of Orange County, Carla
Singer, Judge. Reversed in part and affirmed in part.
                   Marilee Marshall, under appointment by the Court of Appeal, for
Defendant and Appellant, Ian Jon Blanchette.
                   Richard Glen Boire, under appointment by the Court of Appeal, for
Defendant and Appellant, Alberto Jose Robiatti.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff
and Respondent.
              Ian Jon Blanchette and Alberto Jose Robiatti appeal from judgments after a
jury convicted them of firearm and criminal street gang offenses and found true
street gang enhancements. Robiatti argues the trial court erred in admitting evidence,
insufficient evidence supports his conviction for street terrorism and the jury’s findings
he committed the firearm offenses for the benefit of a criminal street gang, and he
received ineffective assistance of counsel. Blanchette also argues insufficient evidence
supports the jury’s finding he committed the firearm offenses for the benefit of a criminal
street gang and he joins in Robiatti’s arguments to the extent they accrue to his benefit.
              As we explain below, we conclude insufficient evidence supports Robiatti’s
conviction for street terrorism, a point the Attorney General concedes. None of their
other contentions have merit. We reverse in part and affirm in part.
                                          FACTS
              At about 5:00 p.m. on June 14, 2011, Sheriff Mark Peters of the
Orange County Sheriff gang enforcement team and other team members were on a
stakeout of Blanchette’s residence in San Clemente. Over the course of two hours, Peters
observed Blanchette and Robiatti, alone and together, come outside, smoke, and go back
inside. Peters did not see either man holding anything. During that time a man later
identified as Trey Cathey arrived in a BMW and went inside without anything in his
hands. A little later, Peters saw Blanchette and Robiatti leave the house and get into a
Toyota Prius. Neither man was carrying anything, and their clothes did not appear to be
bulky. Blanchette drove and Robiatti sat in the front passenger seat. Peters notified
nearby officers they were leaving.
              Sheriff Theodore Wilder conducted the traffic stop .2 miles from
Blanchette’s home. Wilder approached the car and saw Blanchette holding a cellular
telephone. After Wilder told Blanchette to put down the cell phone, Blanchette gave
Wilder his driver’s license and said the car belonged to his wife. Wilder ordered the men



                                             2
to get out of the car, and he searched the car. Underneath the front passenger seat where
Robiatti had been sitting, Wilder found a loaded black Ruger nine millimeter
semi-automatic handgun wrapped in a grey bandana. Wilder found an identical bandana
in Robiatti’s pocket. The handgun’s serial number had been removed.
                 Deputy sheriff Don Monteleone took the keys from the car and met
deputy sheriff Ashraf Abdelmuti and another deputy sheriff at Blanchette’s house. They
found Cathey sitting alone in the living room, and after speaking with him, they let him
leave. One of the keys from the car matched Blanchette’s front door. Sheriffs searched
the house1 and found the following:
                 1. In an entertainment center in the living room, an envelope addressed to
“Myra and Ian” and a green notebook with “66” and “FF” written on it.
                 2. In an ottoman in the living room, a plastic bag containing nine
millimeter bullets compatible with the gun found in the Prius.
                 3. In a bedroom, deputy sheriffs found the following:
                 a. On the bed, two gun cases with the name “Ed Duron” written on them.
One of the cases held a Mossberg 12-gauge shotgun and the other held a Savage Arms
12-gauge shotgun; neither gun was loaded.
                 b. Under the bed, a black canvas guitar bag with another Mossberg
12-gauge shotgun and a Winchester 30-30 lever rifle, and a green case with a
Colt .45 caliber pistol; none of the guns were loaded.
                 c. On a table, an April 2011 earnings statement for Blanchette addressed to
the residence.
                 4. In the kitchen, a notice to pay rent or quit issued to “Myra Loeza” and
“Ian Blanchette.”


1           The parties stipulated the searches of the Toyota Prius and Blanchette’s
home were lawful.


                                               3
               Abdelmuti tried to search the cell phone Blanchette was holding, but the
battery was dead. After Abdelmuti charged the cell phone, he discovered the cell phone
was password protected. Later, Monteleone removed the memory card from the cell
phone and inserted it into his computer. He found six photographs that were date
stamped, “20110614” and time stamped between 14:15 hours and 14:18 hours. Four of
the photographs showed a person, whose face was not visible, holding guns. The person
in the photograph had tattoos that matched Robiatti’s tattoos. The guns the person was
holding matched the guns found in Blanchette’s bedroom. The background in the
photographs matched Blanchette’s bedroom.
              An amended information charged Blanchette and Robiatti with the
following: felon carrying a loaded firearm in public (Ruger nine millimeter
semi-automatic handgun) (Pen. Code, § 12031, subd. (a)(1), (a)(2)(A))2 (count 1);
possession of a firearm by a felon (Mossberg 12-gauge shotgun in tan canvas bag)
(§ 12021, subd. (a)(1)) (count 2); possession of a firearm by a felon (Savage Arms
12-gauge shotgun) (§ 12021, subd. (a)(1)) (count 3); possession of a firearm by a felon
(Colt .45 caliber pistol) (§ 12021, subd. (a)(1)) (count 4); possession of a firearm by a
felon (Mossberg 12-gauge shotgun in black guitar bag) (§ 12021, subd. (a)(1)) (count 5);
possession of a firearm by a felon (Winchester 30-30 lever rifle in black guitar bag)
(§ 12021, subd. (a)(1)) (count 6); and misdemeanor possession of firearm with
identification numbers removed (§ 12094, subd. (a)) (count 7). The amended information
also charged Robiatti with street terrorism (§ 186.22, subd. (a)) (count 8). The amended
information alleged they committed counts 1, 2, 3, 4, 5, and 6 for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)). Finally, it also alleged Robiatti suffered six prior
prison terms (§ 667.5, subd. (b)).



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

                                              4
              After Peters testified but before Monteleone took the stand, the trial court
addressed the issue of the admissibility of four photographs recovered from the
cell phone Blanchette possessed and three gang related photographs recovered from a
computer in Blanchette’s home. Relying on People v. Valdez (2011) 201 Cal.App.4th
1429 (Valdez), and People v. Beckley (2010) 185 Cal.App.4th 509 (Beckley), the trial
court ruled the computer photographs were not properly authenticated and were “too
unreliable to be admissible even as a basis for an [expert] opinion.” But the court also
ruled Monteleone could rely on the four photographs from the cell phone in forming his
opinion whether the offenses were committed for the benefit of a gang. The court based
its ruling on the following: Blanchette possessed the cell phone, the cell phone was
accessed, the photographs were recovered, the photographs were date stamped, and the
background of the photographs appears to be Blanchette’s home. The court indicated
defense counsel was free to cross-examine Monteleone on, among other things, the origin
of the photographs and what they depicted but that was a question of the weight of the
evidence and not the evidence’s admissibility as a basis for the expert’s opinion. The
court reserved ruling on whether it would admit into evidence the four photographs from
the cell phone.
              At trial, the prosecutor offered the testimony of gang expert, Monteleone.
After detailing his background, training, and experience, Monteleone testified concerning
the culture and habits of traditional, turf-oriented criminal street gangs, and specifically
Varrio Familia Flats (VFF). Monteleone explained the various ways a person can join a
gang and how a gang member’s level of commitment to the gang is often based on how
long he has been in the gang. He opined tattoos are an important part of gang culture
because they demonstrate a person’s loyalty to the gang. He stated gang members earn
respect through committing violent crimes and boast about their crimes to enhance their
reputation in the gang and instill fear in the community. He asserted gang members will
commit crimes inside and outside their territory.

                                              5
              Monteleone explained guns are of critical importance to gangs. He stated
gang members use guns to commit crimes, assault rival gang members, and provide
protection. He said a “gang gun” is a gun that belongs to the gang and that gang
members share. Gang members “store the weapon in a place where law enforcement
won’t look or they believe to be -- where they believe law enforcement doesn’t have
access.” He said gang members who have guns are revered by other gang members, and
gang members hide guns for other gang members. He also explained the purpose of
STEP notices3 and field identification cards.4
              Monteleone testified concerning VFF. He detailed its formation in the
1990’s and stated its claimed territory is the entire city of Rancho Santa Margarita. He
described the brand of clothing VFF gang members wear (Famous Stars and Straps), its
common signs and symbols (“FF,” “66,” “VFF,” “First Locos,” and “Familia Flats”), its
membership (20-40 total members and 10-20 active members), its rivals (Family Mob
and Varrio Viejo San Juan Capistrano), and its allies (Varrio Chico San Clemente and
Varrio Chico Orange Avenue). VFF gang members Mauricio DeJesus Padilla and Jaime
Manjarrez had, within the requisite time period, committed the crimes necessary to
establish the statutorily required predicate offenses. Monteleone testified VFF’s primary
activities are possession of firearms, assaults with deadly weapons, and vandalism. He
opined VFF is a criminal street gang as statutorily defined.



3              Section 186.22, enacted in 1989 and operative in 1993, is part of the
California Street Terrorism Enforcement and Prevention Act of 1988, also known as the
STEP Act. A STEP notice is a document that advises an individual he is an active
participant of a criminal street gang and is subject to enhanced penalties for committing
crimes for the benefit of the gang.

4             A field identification card is a card law enforcement officers complete
when they interview an individual. The card includes the individual’s contact
information, if the individual was with anyone during the contact, an individual’s
statements, and the individual’s clothing.

                                             6
              Monteleone testified concerning Robiatti. He stated Robiatti has multiple
VFF tattoos, including the following: “‘First Locos’” on his forearm; “VFF” on his left
hand; “66” and “Rancho Santa Margarita” on his chest; “Flats” on his stomach; “Familia
Flats” on his back; and “F” on one of his feet. He has numerous other tattoos, including
“O.C.” on his right hand and “County of Orange” on his left shoulder. He stated Robiatti
had one STEP notice from December 12, 2007, where he was at the home of another VFF
gang member and admitted he was associating with VFF. He also said Robiatti had nine
field identification cards, the following that were significant: (1) July 2, 1999-Robiatti
admitted he had been jumped into VFF in 1997; (2) June 14, 2008-Robiatti admitted he
was a VFF gang member; and (3) September 19, 2008-Robiatti was with a known VFF
gang member, was wearing VFF’s uniform, and admitted he knew VFF was a criminal
street gang, his gang moniker was “Speedy,” and his tattoos were gang related.
Monteleone added Robiatti was associated with 22 police reports, at least four of which
were gang related. Based on his review of this case and his knowledge of Robiatti,
Monteleone opined Robiatti was an active participant in VFF at the time of the offenses.
Monteleone later testified Blanchette was not an active member in VFF at the time of the
offenses. He also opined Duron was an active member of VFF with the gang moniker
“Magic” based on his own personal contacts with him and his investigation of Duron,
including discussions with other law enforcement officers and review of police reports,
STEP notices, and field identification cards.
              Based on a hypothetical question that tracked the evidence, Monteleone
opined the offenses were committed in association with and for the benefit of VFF. He
explained the offenses would benefit VFF because VFF enhances its reputation in the
community by instilling fear, and weapons enable the gang to commit crimes in the
community. He added the offenses would enhance the active participant in the gang’s
reputation because “he has access to weapons[]” and it will “enhance[] [his] reputation of
being a violent gang member.” He opined the active participant and the car’s driver were

                                                7
acting in association with the gang because they were holding weapons that belonged to
another VFF gang member. Monteleone stated the driver benefitted VFF because he was
driving the active participant in VFF and there was a gun in the car. Additionally, he said
the driver was providing “a safe house” for VFF to store its guns.
              On cross-examination, Monteleone conceded a gang member can commit a
crime for his own personal benefit. He did not know whether any of VFF’s rivals were
aware of the weapons recovered from Blanchette’s home or whether any VFF gang
members had used the guns to commit other crimes. Neither Blanchette’s home nor the
area where officers stopped the car was in VFF territory, but Monteleone stated not all
active gang members live in the gang’s territory. He did not speak to anyone in the
community to learn whether “this incident affected them[.]” Monteleone agreed his
conclusions were premised on the fact the gang members knew the guns were present.
              The prosecutor also offered testimony concerning the four photographs
recovered from the cell phone and the cell phone’s chain of custody. Abdelmuti
explained Wilder gave him the cell phone and when he was unable to access it, he gave it
to Monteleone. Monteleone testified there were six photographs on the memory card.
He printed color photographs and returned the cell phone to Abdelmuti who booked it
into evidence. He opined the tattoos on the person in the photographs match Robiatti’s
tattoos. He also said the background in one of the photographs matched Blanchette’s
bedroom. Abdelmuti explained law enforcement did not request fingerprint or DNA
analysis because they had photographs showing Robiatti handled the guns. They did not
ascertain the subscriber or the telephone number for the cell phone.
              Abdelmuti testified concerning four of the photographs on the cell phone as
follows: exhibit No. 21-a person with a tattoo on his right hand between the thumb and
index finger sitting in what appears to be Blanchette’s bedroom holding a shotgun that
resembles the shotgun recovered from Blanchette’s bedroom; exhibit No. 23-a person
with a tattoo on his upper left shoulder sitting in what appears to be Blanchette’s

                                             8
bedroom holding another shotgun that resembles the shotgun recovered from
Blanchette’s bedroom; exhibit No. 24-a person with a tattoo on his right hand holding a
rifle that resembles the rifle recovered from Blanchette’s bedroom; and
exhibit No. 25-a person with two tattoos (upper left shoulder and forearm) holding a
shotgun that resembles the shotgun recovered from Blanchette’s bedroom. Abdelmuti
and Monteleone both admitted they did not know who took the photographs or when they
were taken.
               The parties stipulated both Blanchette and Robiatti had been convicted of
felony commercial burglary.
               At the close of evidence, Robiatti’s defense counsel objected to admission
of the four photographs recovered from Blanchette’s cell phone based on a lack of
foundation and authentication. The trial court ruled the photographs were admissible
because “there’s foundation for the admissibility of those photographs by virtue of
sufficient evidence to identify the person who possessed the phones.”
               During closing argument when discussing the street terrorism enhancement
the prosecutor stated: “Okay. And then the second element is the defendant intended to
assist, further, or promote criminal conduct by gang members. You can do any of those.
You can assist, further, or promote criminal conduct by gang members. [¶] I do not have
to prove that the defendant is an active or current member of the gang. As I discussed
yesterday, this enhancement applies to non-active participants or non-gang members as
long as you meet these elements. [¶] Well, let’s talk about . . . Robiatti. Because we
know that . . . Robiatti is an active participant of [VFF]. So, believe it or not, he can
actually assist, further, or promote his own criminal conduct. It’s not like he has to
promote somebody other than himself. He’s a gang member himself. That was the
opinion of . . . [Monteleone]. . . . [¶] . . . [¶] It was . . . Monteleone’s opinion that
Robiatti was an active participant and gang member, so he can promote. Just by



                                                9
committing the felony, he’s promoting himself. Don’t think that you have to go out there
and find that he has to promote some other person, okay?”
              The jury convicted Blanchette and Robiatti of all counts and found true all
the allegations. At a bifurcated bench trial, the trial court found true Robiatti suffered
six prior prison terms.
              The trial court sentenced Blanchette to prison for eight years and four
months as follows: the upper term of three years on count 1 and a consecutive lower
term of two years for the street terrorism enhancement; and one-third the middle term of
eight months on counts 2, 3, 4, 5, and 6 to run consecutively.
              The trial court sentenced Robiatti to prison for 16 years and four months as
follows: the upper term of three years on count 1 and a consecutive upper term of four
years for the street terrorism enhancement; one-third the middle term of eight months on
counts 2, 3, 4, 5, and 6 to run consecutively plus one-year terms on the corresponding
street terrorism enhancements as to each count; and one year for one of the prior prison
term allegations. The court struck the sentence on count 7, a misdemeanor, and imposed
and stayed the eight month term on count 8 pursuant to section 654.
                                       DISCUSSION
I. Admission of Evidence
              Robiatti and Blanchette argue the trial court erred in allowing Monteleone
to rely on, and later admitting into evidence, the four photographs recovered from the
cell phone Blanchette was holding because they were not properly authenticated and
lacked foundation. We disagree.
              A photograph is a writing, and a photograph must be authenticated before it
and secondary evidence of its content may be admitted into evidence. (Evid. Code,
§§ 250, 1401, subds. (a) & (b).) Generally, a photograph may be authenticated by the
following: (1) “the testimony of a person who was present at the time a film was made



                                             10
that it accurately depicts what it purports to show”; and (2) expert testimony. (People v.
Bowley (1963) 59 Cal.2d 855, 859, 862.)
              However, in Valdez, supra, 201 Cal.App.4th at pages 1434-1435, another
panel of this court explained writings may be authenticated by other means.
“Importantly, ‘the fact that the judge permits [a] writing to be admitted in evidence does
not necessarily establish the authenticity of the writing; all that the judge has determined
is that there has been a sufficient showing of the authenticity of the writing to permit the
trier of fact to find that it is authentic.’ [Citation.] Thus, while all writings must be
authenticated before they are received into evidence ([Evid. Code,] § 1401), the
proponent’s burden of producing evidence to show authenticity ([Evid. Code,] § 1400) is
met ‘when sufficient evidence has been produced to sustain a finding that the document is
what it purports to be. [Citation.]’ [Citation.] The author’s testimony is not required to
authenticate a document ([Evid. Code,] § 1411); instead, its authenticity may be
established by the contents of the writing ([Evid. Code,] § 1421) or by other means
([Evid. Code,] § 1410 [no restriction on ‘the means by which a writing may be
authenticated’] ). ‘As long as the evidence would support a finding of authenticity, the
writing is admissible. The fact conflicting inferences can be drawn regarding authenticity
goes to the document’s weight as evidence, not its admissibility. [Citations.]’ [Citation.]
‘“[L]ike any other material fact, the authenticity of a [document] may be established by
circumstantial evidence. . . .”’ [Citation.]” We review a trial court’s ruling evidence has
been properly authenticated for an abuse of discretion. (People v. Lucas (1995) 12
Cal.4th 415, 466.)
              Here, circumstantial evidence established the authenticity of the four
photographs. The contents of photographs can establish their authenticity. (People v.
Olguin (1994) 31 Cal.App.4th 1355, 1372-1373 (Olguin).) Although the four
photographs showed a man’s body sans a head, Monteleone testified the tattoos on the
man in the photographs matched Robiatti’s tattoos. Robiatti does not dispute the tattoos

                                              11
on the man in the photographs match his tattoos. Additionally, both Monteleone and
Abdelmuti stated the guns in the photographs matched the guns found in Blanchette’s
bedroom. Finally, Abdelmuti testified the bedroom shown in the photographs matched
Blanchette’s bedroom.
              The location where the photographs were found can also demonstrate they
are authentic. (Olguin, supra, 31 Cal.App.4th at pp. 1372-1373.) The four photographs
depicting a tattooed man without a head holding guns were recovered from a cell phone
Blanchette held while Robiatti sat in the passenger seat when Wilder stopped the Prius.
Blanchette and Robiatti had just left the house where officers would find the guns in the
bedroom that are depicted in the four photographs. The four photographs include a date
and time stamp that tend to establish the photographs were taken hours before officers
searched Blanchette’s home and found the arsenal. Therefore, the contents of the
photographs and the location where they were found provide a sufficient showing to
permit the trier of fact to find the photographs were authentic.
              Robiatti and Blanchette assert the photographs were not properly
authenticated because there was no evidence who took them, where they came from, how
they got on the cell phone, or who the phone belonged to. They also complain there was
no testimony, expert or lay, the photographs were not “composites” or “fakes,” or that the
date and time stamps were correct. As the Valdez court stated, “‘The fact conflicting
inferences can be drawn regarding authenticity goes to the document’s weight as
evidence, not its admissibility. [Citations.]’ [Citation.]” (Valdez, supra,
201 Cal.App.4th at p. 1435.) Both Robiatti’s and Blanchette’s defense counsel
cross-examined Monteleone about the cell phone and the photographs. And during
closing argument they both argued the photographs were not properly authenticated.
              Robiatti and Blanchette’s reliance on Beckley, supra, 185 Cal.App.4th 509,
to argue the photographs were not properly authenticated is misplaced. In that case, the
prosecution offered a photograph downloaded by a police officer from MySpace.com

                                             12
purportedly showing a defense witness flashing a gang sign. (Id. at p. 514.) The officer
could not testify from personal knowledge the photograph truthfully displayed the
witness flashing the gang sign, and the prosecution did not offer any expert testimony the
photograph was not a fake or had not been altered. (Id. at p. 515.) In concluding the
photograph was not sufficiently authenticated, the Beckley court recognized “the
untrustworthiness of images downloaded from the Internet,” and noted websites are not
monitored for accuracy, nothing contained on websites is under oath or subject to
independent verification, and the content on websites can be manipulated from any
location at any time. (Id. at pp. 515-516.) Beckley is factually distinguishable because it
concerned evidence downloaded from the Internet. The photographs here were recovered
from a password protected cell phone in Blanchette’s possession.
              Our case is more similar to Valdez, supra, 201 Cal.App.4th 1429, where the
court held the prosecution did sufficiently authenticate printouts from defendant’s
MySpace page. In that case, the investigator had printed out the photographs a year
before the offense at issue. (Id. at p. 1434.) Defendant did not dispute his own picture
was the MySpace page icon identifying the owner of the page, and there were greetings
addressed to him by name from a family member and other MySpace users and personal
information connecting defendant with the MySpace page. (Id. at p. 1435.) The Valdez
court reasoned that because “a reasonable trier of fact could conclude from the posting of
personal photographs, communications, and other details that the MySpace page
belonged to [the defendant],” it was for the jury to determine whether defendant authored
it. (Id. at p. 1435.) The court also noted defendant did not dispute he was the person in a
photograph forming a gang sign and the page was password protected for posting content.
(Id. at p. 1436.) Again, Robiatti does not dispute his tattoos matched the tattoos of the
person in the photographs and the cell phone was password protected. It was for the jury
to decide what weight to afford the photographs.



                                             13
              Finally, Robiatti and Blanchette’s contention Monteleone could not rely on
the photographs as a basis for his expert opinion is meritless. “As long as [the] threshold
requirement of reliability is satisfied, even matter ordinarily inadmissible, such as
hearsay, can form the proper basis for an expert’s opinion testimony. [Citation.]”
(People v. Hill (2011) 191 Cal.App.4th 1104, 1121-1122 [gang expert may rely on
conversations with gang members, on personal investigations of gang-related crimes, and
on information obtained from other law enforcement].) Here, Robiatti and Blanchette
note this was the first time Monteleone testified as an expert at trial but they do not argue
he was not qualified to testify as an expert witness. In testifying as an expert, he could
properly rely on those matters experts commonly rely on in forming their opinions. Thus,
the trial court properly ruled Monteleone could rely on the photographs as a basis for his
opinion, and properly admitted the photographs into evidence.
II. Sufficiency of the Evidence
              Robiatti and Blanchette argue insufficient evidence supports the jury’s
findings they committed counts 1 through 6 for the benefit of a criminal street gang, and
Robiatti contends insufficient evidence supports his conviction for street terrorism. We
address their contentions below.
              “In considering a challenge to the sufficiency of the evidence . . . , [the
appellate court] review[s] 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. [Citation.] [It] presume[s] every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] 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. [Citation.] ‘A reviewing court neither



                                             14
reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v.
Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
A. Count 8-186.22, subdivision (a)
              Robiatti argues he could not be convicted of street terrorism because
Blanchette was not an active participant in VFF. The Attorney General concedes the
issue. Based on People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), we agree that
Robiatti, who was not with another VFF gang member, could not be convicted of
committing street terrorism.
              The street terrorism substantive offense, section 186.22, subdivision (a),
states: “Any 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, shall be punished . . . in the state prison for 16 months, or two or three
years.” There are three elements to the substantive street terrorism offense: (1) active
participation in a criminal street gang; (2) knowledge the gang’s members have engaged
in a pattern of criminal gang activity; and (3) willfully promoting, furthering, or assisting
in any felonious criminal conduct by members of the gang. (Albillar, supra,
51 Cal.4th at p. 56.)
              In Rodriguez, supra, 55 Cal.4th at page 1128, defendant acted alone in
committing an attempted robbery. A jury convicted him of attempted robbery and active
participation in a criminal street gang under section 186.22, subdivision (a). (Rodriguez,
supra, 55 Cal.4th at p. 1129.) The issue in Rodriguez, like the issue here, was whether
the third element of the crime described in section 186.22, subdivision (a)—willfully
promoting, furthering, or assisting in any felonious criminal conduct by members of the
defendant’s gang—can be satisfied by felonious criminal conduct committed by the
defendant acting alone. (Rodriguez, supra, 55 Cal.4th at p. 1129.) The court held that it



                                              15
does not, and expressly disapproved of prior cases to the extent they are inconsistent with
Rodriguez. (Id. at p. 1137, fn. 8.)
              The Rodriguez court began by analyzing the statute according to its “‘plain,
commonsense meaning . . . .’” (Rodriguez, supra, 55 Cal.4th at p. 1131.) The felonious
criminal conduct referred to in the statute must be committed “‘by members of that
gang.’” (Ibid.) The word “‘[m]embers,’” the court explained, is a plural noun. (Id. at
p. 1132.) Therefore, the court reasoned “[t]he plain meaning of section 186.22[,
subdivision] (a) requires that felonious criminal conduct be committed by at least two
gang members, one of whom can include the defendant if he is a gang member.
[Citation.]” (Ibid.) Because defendant acted alone, he did not violate section 186.22,
subdivision (a). (Rodriguez, supra, 55 Cal.4th at p. 1139.)
              Rodriguez controls the outcome of the issue here. There was no evidence
Blanchette was an active participant of VFF. Indeed, Monteleone opined Blanchette was
not an active participant of VFF at the time of the offenses. Because the evidence at trial
supports the conclusion Robiatti was not with another VFF gang member at the time of
offenses—the only crimes the prosecution relied on to support the third element of the
gang participation count—there is insufficient evidence to support the jury’s conviction
on that count. Accordingly, we reverse Robiatti’s conviction on count 8.
B. 186.22, subdivision (b)
              Blanchette and Robiatti argue insufficient evidence supports the jury’s
finding they committed counts 1 to 6 for the benefit of a criminal street gang. Not so.
              “[A]ny 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, in addition and consecutive to the punishment prescribed for
the felony or attempted felony of which he or she has been convicted, be punished . . . .”
(§ 186.22, subd. (b)(1).)

                                              16
                In Albillar, supra, 51 Cal.4th at page 60, the California Supreme Court
explained that although not every crime committed by gang members is related to a gang
for purposes of the first prong, a crime can satisfy the first prong when it is committed for
the benefit of a criminal street gang, at the direction of a criminal street gang, or in
association with a criminal street gang. The Albillar court also explained the second
prong, which requires the defendant commit the gang-related felony “with the specific
intent to promote, further, or assist in any criminal conduct by gang members” (§ 186.22,
subd. (b)(1)), need not encompass proof the defendant committed the crime with the
specific intent to promote, further, or assist other criminal conduct by gang members.
Instead, that subdivision “encompasses 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.” (Albillar, supra, 51 Cal.4th at p. 65.)
                The Albillar court stated a gang expert’s opinion is admissible as part of
the evidentiary showing on how the crimes can benefit the gang. (Albillar, supra,
51 Cal.4th at p. 63.) “‘Expert opinion that particular criminal conduct benefited a gang’
is not only permissible but can be sufficient to support the . . . section 186.22, subdivision
(b)(1), gang enhancement. (Albillar, supra, 51 Cal.4th at p. 63.)” (People v. Vang
(2011) 52 Cal.4th 1038, 1048.)
1. Blanchette
                Blanchette argues insufficient evidence supports section 186.22,
subdivision (b)(1)’s second prong, i.e., the specific intent requirement. We disagree.
                With respect to the specific intent requirement, “Commission of a crime in
concert with known gang members is substantial evidence which supports the inference
that the defendant acted with the specific intent to promote, further or assist gang
members in the commission of the crime. [Citation.]” (People v. Villalobos (2006)
145 Cal.App.4th 310, 322; see Albillar, supra, 51 Cal.4th at pp. 65-66.)



                                              17
              Here, contrary to Blanchette’s assertion otherwise, there was sufficient
evidence he committed counts 1 through 6 for the benefit of VFF because the record
includes evidence from which the jury could reasonably conclude he knew Robiatti was a
VFF gang member. The record demonstrates Blanchette and Robiatti spent hours
together on the day of the incident. Robiatti has numerous VFF tattoos that are openly
visible. When officers searched Blanchette’s home, they found two guns that belonged to
a known member of VFF. In the entertainment center in Blanchette’s living room,
officers found a notebook containing VFF gang symbols. On a cell phone Blanchette
possessed, officers found recent photographs of Robiatti holding the gang’s guns. From
this evidence, the jury could reasonably conclude Blanchette welcomed a known VFF
gang member into his home, provided a safe house for VFF’s guns, romanticized his ties
to criminal street gangs, and memorialized the occasion by taking photographs of
Robiatti displaying the guns. Thus, there was sufficient evidence Blanchette committed
counts 1 to 6 in concert with a known VFF gang member, and the jury’s findings are
supported by substantial evidence.
2. Robiatti
              Robiatti contends insufficient evidence supports both prongs of
section 186.22, subdivision (b)(1). Again, we disagree.
              As to the first prong, it is true not every crime committed by a gang
member is gang related, but “[e]xpert opinion that particular criminal conduct benefited a
gang by enhancing its reputation for viciousness can be sufficient to raise the inference
that the conduct was ‘committed for the benefit of . . . a[] criminal street gang’ within the
meaning of section 186.22(b)(1). [Citations.]” (Albillar, supra, 51 Cal.4th at pp. 60, 63.)
              Here, there was overwhelming evidence Robiatti was an active participant
in VFF. Additionally, officers observed Robiatti going in and out of Blanchette’s home,
where officers later found at least two weapons that belonged to a known VFF gang
member. Later, when officers stopped Blanchette and Robiatti in the Prius, officers

                                             18
found a gun under the passenger seat where Robiatti was sitting. The gun was wrapped
in a grey bandana that was identical to another grey bandana found in Robiatti’s pocket.
              Monteleone testified one of VFF’s primary criminal activities was weapons
possession. He explained guns are extremely important to gangs because gang members
use guns to commit violent crimes and instill fear in rival gangs and the community. He
added that gangs hide their guns in “safe houses” where law enforcement would be
unlikely to find them and gang members hide guns for other gang members. Based on a
hypothetical that tracked the evidence in this case, he opined an active gang member who
possesses guns benefits his gang because they can commit crimes for the gang, protect
themselves from rival gang members, and assault rival gang members. Monteleone
concluded this would enhance the gang member’s reputation in the gang. Based on this
evidence, the jury could reasonably conclude Robiatti, an active VFF gang member,
possessed the guns for the benefit of VFF and hid VFF’s weapons outside its territory to
prevent law enforcement from finding them.
              Robiatti complains the record is void of any evidence how the guns were
transported to Blanchette’s home, he and Blanchette were engaged in VFF activity or
planned to commit a crime, VFF used or planned to use the guns to commit gang crimes,
or rival gangs or community members were aware of the guns. Counsel elicited
testimony on all these points from Monteleone on cross-examination, and the jury heard
and rejected this testimony. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512
(Garcia).) On appeal, we view the evidence in the light most favorable to the judgment,
and we cannot substitute our judgment for the jury’s judgment. (Albillar, supra,
51 Cal.4th at pp. 59-60.)
              Garcia, supra, 153 Cal.App.4th 1499, is instructive. In that case, another
panel of this court held sufficient evidence supported the jury’s finding defendant carried
a loaded unregistered weapon in public for the benefit of a criminal street gang, based on
evidence that is not as strong as the evidence in this case. In that case, officers stopped

                                             19
defendant, an active gang member who had committed gang crimes, for a traffic violation
and found the gun. (Id. at pp. 1502-1504.) Defendant contended he had been shot and he
possessed the gun solely for self-defense. (Id. at p. 1512.) Based on the gang expert’s
testimony on the importance of guns in gangs and the respect gang members and gangs
garner from possessing guns, this court held sufficient evidence supported the jury’s
finding on the street terrorism enhancement. (Ibid.) As we explain above, the record
includes evidence from which the jury could reasonably conclude Robiatti, an active
participant in VFF, possessed and hid VFF’s guns in Blanchette’s home.
              With respect to the second prong, the Albillar court concluded
section 186.22, subdivision (b)(1), requires the specific intent to promote, further, or
assist in any criminal conduct by gang members, including the offense sought to be
enhanced. (Albillar, supra, 51 Cal.4th at p. 66.) Because there rarely is direct evidence a
crime was committed with the specific intent to benefit a criminal street gang, the trier of
fact may infer the requisite mental state “from how people act and what they say.”
(People v. Miranda (2011) 192 Cal.App.4th 398, 411-412.) Again, expert testimony is
admissible to establish sufficient evidence of the street terrorism enhancement. (Albillar,
supra, 51 Cal.4th at p. 63.)
              As we explain above more fully, there was overwhelming evidence Robiatti
was an active participant of VFF. Officers observed him visiting a home where officers
later found weapons, including two guns that belonged to Duron, another known VFF
gang member. Officers later stopped Blanchette and Robiatti and found a gun wrapped
in a bandana that tended to establish Robiatti possessed the gun. Monteleone testified
criminal street gangs cherish guns and use them to commit a variety of crimes. He also
explained gang members hide guns for other gang members at safe houses where law
enforcement officers are unlikely to find them. The jury could certainly rely on this
evidence to reasonably conclude Robiatti had the specific intent to benefit VFF when he



                                             20
possessed and hid the guns. To the extent Robiatti argues the jury’s findings are
improper because he was not with another VFF gang member, he is incorrect. (People v.
Rios (2013) 222 Cal.App.4th 542, 563-564; see Rodriguez, supra, 55 Cal.4th at
pp. 1138-1139.)
              Robiatti’s reliance on People v. Ramon (2009) 175 Cal.App.4th 843
(Ramon), and In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), is misplaced. In
Ramon, supra, 175 Cal.App.4th 843, defendant was convicted of, among other things,
receiving a stolen vehicle. The court explained the record was devoid of any evidence
from which the expert could determine whether defendant and his passenger were acting
on behalf of the gang or were acting on their own behalf. (Id. at p. 851.) The court noted
its analysis might be different if the expert’s opinion had included possessing stolen
vehicles as one of the gang’s activities. (Id. at p. 853.) In Frank S., supra, 141
Cal.App.4th 1192, there was insufficient evidence to support a gang enhancement on a
finding minor carried a concealed dirk or dagger where the prosecution “did not present
any evidence that the minor was in gang territory, had gang members with him, or had
any reason to expect to use the knife in a gang-related offense.” (Id. at p. 1199.)
              Here, Monteleone testified one of VFF’s primary activities was possession
of weapons, and there was expert testimony from which the jury could reasonably
conclude Robiatti, an active participant in VFF, was hiding VFF guns outside its territory
in a home where officers found gang indicia to prevent law enforcement from
confiscating the guns. Monteleone testified both statutorily required predicate offenses
involved the use of firearms. Thus, based on the entire record, there is sufficient
evidence supporting the jury’s finding Blanchette and Robiatti committed counts 1
through 6 for the benefit of a criminal street gang. (Jackson v. Virginia (1979) 443 U.S.
307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-577.)




                                             21
III. Ineffective Assistance of Counsel
              Robiatti and Blanchette claim they received ineffective assistance of
counsel because their defense counsel did not object during closing argument to an
alleged misstatement of law concerning the street terrorism enhancement. Not so.
              “In order to establish a violation of the right to effective assistance of
counsel, a defendant must show that counsel’s performance was inadequate when
measured against the standard of a reasonably competent attorney, and that counsel’s
performance prejudiced defendant’s case in such a manner that his representation ‘so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.’ [Citations.] Moreover, ‘a court need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.’ . . . If defendant fails to
show that he was prejudiced by counsel’s performance, we may reject his ineffective
assistance claim without determining whether counsel’s performance was inadequate.
[Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds
in People v. Doolin (2009) 45 Cal.4th 390.)
              Robiatti and Blanchette rely on the following statement during the
prosecutor’s closing argument to argue his defense counsel was ineffective for failing to
object: “So, believe it or not, he can actually assist, further, or promote his own criminal
conduct. It’s not like he has to promote somebody other than himself. He’s a gang
member himself.” They claim the prosecutor’s statement essentially eliminated from the
jury’s consideration section 186.22’s second element, i.e., the specific intent element.
              The prosecutor’s statement correctly reflected the California Supreme
Court’s holding in Albillar, supra, 51 Cal.4th at page 65 that section 186.22,
subdivision (b)(1), “encompasses 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.” (Albillar, supra, 51 Cal.4th at p. 65.) To the

                                               22
extent the prosecutor’s statement was an incomplete statement of the law, neither Robiatti
nor Blanchette were prejudiced.
              The trial court instructed the jury with CALCRIM No. 200, “Duties of
Judge and Jury,” that admonished the jury to follow the law as the trial court explained it
to the jury. The instruction added that if anything the attorneys said conflicted with the
court’s instructions, the jury must follow the court’s instructions. Additionally, the court
instructed the jury with CALCRIM No. 1401, which correctly provided the jury with
section 186.22, subdivision (b)(1)’s elements. Therefore, Robiatti and Blanchette were
not prejudiced by the prosecutor’s statement.
                                      DISPOSITION
              We reverse Robiatti’s conviction for street terrorism, count 8. We affirm
the judgments in all other respects. We direct the clerk of the superior court to prepare an
amended abstract of judgment and forward it to the Department of Corrections and
Rehabilitation, Division of Adult Operations.




                                                  O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




                                             23
