Filed 7/23/14 P. v. Gonzalez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048579

         v.                                                            (Super. Ct. No. 12CF2735)

SAMUEL GONZALEZ,                                                       OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Sheila F.
Hanson. Affirmed.
                   Cara DeVito, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
                                              *              *               *
              A jury convicted defendant Samuel Gonzalez of multiple counts of felony
and misdemeanor false imprisonment (Pen. Code, §§ 236, 237; all statutory references
are to the Penal Code unless noted), battery on a peace officer (§ 243, subd. (b)), carrying
a dirk or dagger (§ 21310), and resisting and deterring an executive officer (§ 69). The
jury found he committed the offenses for the benefit of a criminal street gang (§ 186.22,
subds. (b), (d)). Gonzalez admitted he previously had suffered two prior convictions
under the Three Strike law (§ 667, subds. (d) & (e)(2)(A); § 1170.12, subds. (b) &
(c)(2)(A)), a serious felony prior conviction (§ 667, subd. (a)(l)), and served a prison term
(§ 667.5, subd. (b)). Gonzalez challenges the sufficiency of the evidence to support the
false imprisonment convictions and the gang enhancements. He also contends the trial
court committed instructional error, and that it coerced the verdict. We affirm.
                                              I
                         FACTS AND PROCEDURAL BACKGROUND
              On September 13, 2013, Santa Ana Police Officers Luis Galeana and Gil
Hernandez spotted Gonzalez walking down Bristol Street. Gonzalez made eye contact
with the officers, grabbed his waistband, and ran. The officers pursued Gonzalez because
Galeana suspected Gonzalez had a weapon in his waistband. Gonzalez scaled a fence
and tossed something aside. Galeana, pursuing on foot, caught up with Gonzalez and
ordered him to lie down on his stomach, but Gonzalez punched and kicked Galeana. He
then fled, jumping over another fence and discarding a dagger.
              Gonzalez made his way into Maria B.’s home through an unlocked sliding
glass door. Maria lived with her husband, two children (Fabian B., age 11, and Julianna
B., age 4), her mother and father (Beatriz A. and Enrique A.), and a cousin (Victor C.,
age 19). Maria first noticed Gonzalez as she huddled by her front door with Fabian,
Julianna, and Beatriz after Fabian screamed there was a man inside the house. Maria felt
afraid because Gonzalez, who was on his hands and knees and breathing hard, looked like

                                             2
a gang member based on his baggy clothes and shaved head. Fabian tried to open the
door to flee, but Gonzalez said, “nobody open.” Beatriz kept Fabian from leaving the
home.
              Maria asked Gonzalez why he was in her home. He responded he had been
walking with his girlfriend when police officers began hitting him. Gonzalez blocked
Maria when she tried to go out through the side door, declaring, “No, you can’t go
nowhere. You need to shut up and hide me.” Gonzalez had locked the back door when
he first entered. He never physically touched Maria and pleaded for her help, using the
Spanish word for “please.”
              Victor emerged from the bathroom and saw Gonzalez. Gonzalez ordered
him not to open the door for the police. Victor retreated to his bedroom and alerted a
police officer who stood outside his window that Gonzalez was inside the residence.
              Maria and Gonzalez remained in the kitchen while Beatriz took Fabian and
Julianna to her bedroom. Beatrice told Enrique about the intruder and ordered the
children to hide under the bed. Enrique, who suffered from diabetes and blindness,
remained on the bed. Beatriz locked her bedroom door before going back to the living
room.
              Gonzalez took Maria to the garage. Beatriz opened the front door and
signaled to the police for help. She refused to step outside despite police requests to do
so. The police entered the home and confronted Gonzalez, who kicked and threw
punches at the officers as they subdued him.
              Following trial in April 2013, the jury convicted Gonzalez as noted above.
In June 2013, the court sentenced Gonzalez to 30 years to life in prison.




                                               3
                                              II
                                        DISCUSSION
A.   Substantial Evidence Supports Gonzalez’s Convictions for Misdemeanor False
Imprisonment of Enrique (Count 1) and Julianna (Count 6)
              The jury convicted Gonzalez of falsely imprisoning Enrique (count 1) and
Julianna (count 6) as lesser included offenses of hostage taking (§ 210.5). He contends
the evidence did not establish he restrained, detained, or confined them, or that his acts
forced them to stay in the house, or go somewhere else in the house against their will.
              We “review the whole record in the light most favorable to the judgment
. . . to determine whether it discloses substantial evidence – that is, evidence which is
reasonable, credible, and of solid value – such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557,
578; Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) There is a difference between
no evidence and insufficient evidence; to be sufficient, it must reasonably inspire
confidence.
              Section 236 provides, “False imprisonment is the unlawful violation of the
personal liberty of another.” Misdemeanor false imprisonment has two elements: the
defendant intentionally and unlawfully restrained, detained, or confined a person, and
defendant’s act forced that person to stay or go somewhere against that person’s will.
(CALCRIM No. 1242.)
              “Any exercise of express or implied force which compels another person to
remain where he does not wish to remain, or to go where he does not wish to go, is false
imprisonment.” (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123 (Bamba).) A
person is liable for false imprisonment when he intentionally commits “an act, the
natural, probable and foreseeable consequence of which is the nonconsensual
confinement of another person.” (People v. Olivencia (1988) 204 Cal.App.3d 1391,

                                              4
1399-1400.) Gonzalez asserts Julianna B. or Enrique A. stayed in the house because
Beatriz A. kept them there, not because he acted to restrain them.
              Substantial evidence supports the jury’s conclusion Gonzalez falsely
imprisoned Julianna. His forcible entry into the residence and his command that
everyone remain in the residence resulted in her confinement even if she was too young
to fully comprehend what was occurring. As the Attorney General correctly notes,
misdemeanor false imprisonment is established when a defendant commits an act which
naturally and foreseeably results in the nonconsensual confinement of another person.
(People v. Fernandez (1994) 26 Cal.App.4th 710, 717.) Here, the jury reasonably could
conclude Julianna was confined in the living room, and Beatriz’s removal of the children
to another location in the residence was the natural, probable, and foreseeable
consequence of Gonzalez’s demand they remain in the residence and keep the doors
closed.
              Gonzalez also complains “it was not [his] intentional act that caused
Enrique . . . to stay in the house and/or to hide; instead, it was Beatriz[’s] acts that caused
[him] to do so.” Again, misdemeanor false imprisonment is established when a
defendant commits an act which naturally and foreseeably results in the nonconsensual
confinement of another person. The jury reasonably could conclude Enrique was
confined, and Beatriz’s instruction he should stay put was the natural, probable, and
foreseeable consequence of Gonzalez’s demand family members remain in the residence
and keep the doors closed. Substantial evidence supports the jury’s conclusion Gonzalez
falsely imprisoned Enrique.
B.    Substantial Evidence Supports Gonzalez’s Convictions for Felony False
Imprisonment of Maria, Beatriz, and Fabian
              False imprisonment is elevated to a felony when a person confines or
restrains another by “violence, menace, fraud or deceit.” (§ 237, subd. (a).) The issue

                                               5
here is whether Gonzalez employed “menace” in confining Maria, Beatriz, and Fabian.
Menace means “‘“a threat of harm express or implied by word or act.”’” (Bamba, supra,
58 Cal.App.4th at p. 1123.) An “express or implied threat of harm does not require the
use of a deadly weapon or an express verbal threat to do additional harm. Threats can be
exhibited in a myriad number of ways, verbally and by conduct.” (People v. Aispuro
(2007) 157 Cal.App.4th 1509, 1513 (Aispuro); see CALCRIM No. 1240.)
              Gonzalez argues he did not verbally threaten harm to any of the people in
the house, he did not act in a hostile manner, never told the adults he would harm them or
the children, and on several instances begged Maria and Victor to either help him, or at
least not let the police apprehend him, using the word “please” when asking for their
help.
              Here, the family lived in an area plagued by gangs, and Gonzalez appeared
to be a gang member. Gonzalez barged into the home, demanded and directed various
family members remain in the residence and hide him from pursuing police officers. He
prevented Maria from leaving, and repeatedly ordered her to “shut up.” Based on
Gonzalez’s appearance and aggressive conduct, Maria believed Gonzalez was a gang
member and possibly armed. Maria and Beatriz testified they were frightened. Fabian,
11 years old at the time, was shaking and almost in tears. Based on the foregoing, the
jury reasonably could conclude Gonzalez’s presence and actions in the family’s home
carried an implied threat of harm. Substantial evidence therefore supports the
convictions for felony false imprisonment of Maria, Beatriz, and Fabian. (See People v.
Islas (2012) 210 Cal.App.4th 116, 126-127 (Islas) [substantial evidence supported
conviction of false imprisonment by menace where family heard police activity outside
their apartment building, noticed the defendants were in their home, defendants looked
like gang members, defendants signaled for the terrified family to be quiet and to hide
them, and apartment building was within area claimed by defendants’ gang].)

                                            6
              Gonzalez’s reliance on People v. Matian (1995) 35 Cal.App.4th 480 is
misplaced. There, the defendant sexually assaulted the victim by squeezing her breast
hard enough to cause pain and possibly bruising. As she prepared to leave, he grabbed
her arm and yelled at her not to leave. (Id. at p. 485.) He told her to wash her face, and
she retreated to a chair while he went into a nearby office within view of her. Each time
she got up from her chair, he glared at her and stood up out of his chair to approach her.
She testified she was afraid, did not want him to touch her again and sat back down. The
appellate court held there was insufficient evidence of menace because the defendant did
not use a deadly weapon, verbally threaten additional physical harm, or make threatening
movements each time she got out of the chair to leave. (Ibid.) We agree with the cases
that disagree with Matian on the law, and on its application to the facts of that case.
(Islas, supra, 210 Cal.App.4th at pp. 125-126; People v. Wardell (2008) 162 Cal.App.4th
1484, 1491; Aispuro, supra, 157 Cal.App.4th at p. 1513; People v. Castro (2006) 138
Cal.App.4th 137, 143.) As noted by Aispuro, “[t]hreats can be exhibited in a myriad
number of ways, verbally and by conduct” (Aispuro, at p. 1513) and “a jury properly may
consider a victim’s fear in determining whether the defendant expressly or impliedly
threatened harm” (Islas, at p. 127.) Viewed in the light most favorable to the judgment,
the jury here reasonably could infer Gonzalez’s actions, demeanor, and statements
conveyed an implied threat of harm should his victims attempt to flee.
C.   The Trial Court Did Not Coerce the Verdict
              At 3:50 p.m. on the second day of deliberations, after the jury had
deliberated eight hours in total over two days, the jury sent a note to the court stating,
“[t]he members of the jury feel that further deliberation will not result in a different
outcome for [counts] 1, 3, 4, 5, and 6,” the hostage taking and false imprisonment counts.
Defense counsel urged the court to declare a mistrial. The court declined, citing the eight
days spent in trial, the amount of evidence received, and noted that the jury’s

                                              7
deliberations had been delayed while it waited for the court to answer the jury’s inquiries.
The court read an instruction (CALCRIM No. 3551)1 urging the jury to continue their
deliberations and, because it was 4:28 p.m. on a Friday afternoon, allowed the jurors to
leave for the day, ordering them to return Monday morning. The jury deliberated about
two hours on Monday and returned its verdicts.
              Gonzalez argues the trial court’s directive to the jury to resume
deliberations after it advised the court further deliberations would not result in a different
outcome improperly pressured the jurors to reach verdicts. “Here, the jurors . . . were
forced to return on the following Monday for a third day of deliberations, even after
reporting they were hung and did not believe further deliberations could help. [¶] This
would have sent a very clear signal to the jury that the court wanted them to return
verdicts and would not accept a ‘hung’ jury. The specter of ‘coercion’ thus arises.”
              As a threshold matter, Gonzalez forfeited the issue. When the trial court
asked defense counsel if he had any objections, he replied that while he would prefer a
mistrial, he had no legal objection to the court’s course of action. Nothing in the record
suggests the trial court understood the defense had qualms about jury coercion or felt the

       1
               “‘Sometimes juries that have had difficulty reaching a verdict are able to
resume deliberations and successfully reach a verdict on one or more counts. Please
consider the following suggestions. Do not hesitate to reexamine your own views. Fair
and effective jury deliberations require a frank and forthright exchange of views. Each of
you must decide the case for yourself and form your individual opinion after you have
fully and completely considered all of the evidence with your fellow jurors. It is your
duty as jurors to deliberate with the goal of reaching a verdict if you can do so without
surrendering your individual judgment. Do not change your position just because it
differs from that of other jurors or just because you or others want to reach a verdict.
Both the People and the Defendant are entitled to the individual judgment of each juror. It
is up to you to decide how to conduct your deliberations. You may want to consider new
approaches in order to get a fresh perspective. Let me know whether I can do anything to
help you further, such as give additional instructions or clarify instructions I have already
given you. Please continue your deliberations at this time. If you wish to communicate
with me further, please do so in writing using the form my bailiff has given you.’”
                                              8
court was pressuring the jury. Counsel’s failure to object in the trial court forfeited the
issue on appeal. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1038 [due
process coercion claim forfeited by defense counsel’s failure to object]; People v.
Cain (1995) 10 Cal.4th 1, 55 [defendant’s failure to object forfeited claim the trial court’s
remarks directed a verdict].)
              In any event, the claim fails on the merits, as we see nothing in the court’s
remarks that a reasonable juror would interpret as coercing a verdict. Section 1140
provides, “‘[e]xcept as provided by law, the jury cannot be discharged . . . until they have
agreed upon their verdict . . . unless, . . . at the expiration of such time as the court may
deem proper, it satisfactorily appears that there is no reasonable probability that the jury
can agree.’” (People v. Valdez (2012) 55 Cal.4th 82, 159.) The trial court has discretion
to determine whether a reasonable probability of agreement exists. (Ibid.) “The court
must exercise its power, however, without coercion of the jury, so as to avoid displacing
the jury’s independent judgment ‘in favor of considerations of compromise and
expediency.’” (People v. Rodriguez (1986) 42 Cal.3d 730, 775, quoting People v. Carter
(1977) 68 Cal.2d 810, 817 (Carter).) Gonzalez’s reliance on Carter is unavailing.
There, the trial court refused to give the jury the additional time it requested to deliberate,
told the jury the evidence was not complicated, and admonished the jury it would be
locked up for the night if no decision was reached within half an hour. (Carter, at
pp. 819-820.) It was this behavior, not the directive to deliberate further, which led the
appellate court to find an abuse of discretion.
              Gonzalez argues we should infer the court coerced the jury because they
quickly returned verdicts after reconvening on Monday, and the inconsistencies in the
verdicts showed they were arrived at in haste. With respect to the speed of deliberations,
Gonzalez points to People v. Crowley (1950) 101 Cal.App.2d 71, where the court
reversed a verdict that was reached a half hour after the trial court further instructed the

                                               9
jury. Crowley does not support Gonzalez’s argument. As in Carter, the court threatened
to lock up the jury for the night if they failed to reach a verdict. (Crowley, supra, at
p. 79.) The present case is more like People v. Sandoval (1992) 4 Cal.4th 155, where the
appellate court found no coercion when the trial court ordered deliberations to continue
even though the jury already had conducted lengthy deliberations, advised the court it
could not reach a verdict, and the jurors stated there was no reasonable possibility of a
verdict with further deliberations. (Id. at p. 195; see People v. Rodriguez, supra,
42 Cal.3d at p. 775 [no abuse of discretion in requiring the jury to continue deliberating
after it declared itself unable to reach a verdict following 18 days of deliberation].)
              Contrary to Gonzalez’s claim, purported inconsistencies in the verdict do
not necessarily suggest jury compromises. A plausible reason the jury returned felony
convictions for Gonzalez’s false imprisonment of Maria, Beatriz, and Fabian, but not
Julianna and Enrique, is that the latter two were not afraid of him: Julianna was too
young to know what was going on, and Enrique never had contact with Gonzalez.
Moreover, the jury may have acquitted Gonzalez on the count related to Victor because
he did not verbally detain Victor. We discern no abuse of discretion in continuing
deliberations another day.
D.   West Myrtle’s Primary Activities
              Gonzalez challenges the sufficiency of the evidence to support the jury’s
finding on the gang enhancement. Gonzalez contends no substantial evidence supports
the gang expert’s opinion West Myrtle’s primary activities included the sale of narcotics
and the illegal possession of weapons. We do not find Gonzalez’s contention persuasive.
              Section 186.22, subdivisions (b) and (d), create an enhancement for “[a]ny
person who is convicted of” specified crimes “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 . . . .” A “‘criminal

                                             10
street gang’ means any ongoing organization, association, or group of three or more
persons, whether formal or informal, having as one of its primary activities the
commission of one or more of the criminal acts enumerated in paragraphs (1) to (25),
inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or
common identifying sign or symbol, and whose members individually or collectively
engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f),
italics added; § 186.22, subd. (e)(1)-(25), (31)-(33) [enumerated crimes include sale,
possession for sale, transportation, manufacture, offer for sale, or offer to manufacture
controlled substances; prohibited sale, delivery, transfer or possession of firearms; theft
and unlawful taking or driving of a vehicle].) The phrase “primary activities” as used in
the gang statute means that one of the group’s “‘chief’” or “‘principal’” occupations is
the commission of one or more statutorily enumerated crimes. (People v. Sengpadychith
(2001) 26 Cal.4th 316, 323 (Sengpadychith).) “Sufficient proof of the gang’s primary
activities might consist of evidence that the group’s members consistently and repeatedly
have committed criminal activity listed in the gang statute.” (Id. at p. 324.)2
              Detective Dominick Padilla testified as a gang expert at trial. According to
Padilla, West Myrtle is one of the most active criminal street gangs in Santa Ana, with
about 150 members and numerous rivals. Padilla had been involved in more than 15
investigations of West Myrtle, and had arrested several of its members. Padilla declared
West Myrtle was a criminal street gang whose primary activities included illegal
possession of weapons and sales of narcotics. He based his opinion on “speaking to
members of the West Myrtle street gang, reviewing police reports regarding activity in
that area, and speaking to members in the community, as well as senior investigators and

       2
              Here, the trial court instructed the jury it was required to find West Myrtle’s
primary activities included commission of “possession for sale of a controlled substance,
possession of a firearm by a prohibited person, or carrying a loaded firearm in violation
of Penal Code section 12031.”
                                             11
detectives in the gang investigations division.” He also provided three examples of West
Myrtle gang members suffering convictions, specifically naming one West Myrtle gang
member who suffered a conviction for possession of a controlled substance, another who
suffered convictions for firearms violations, and Gonzalez’s prior convictions in 2010 for
two separate firearms violations. Padilla testified officers provided Street Terrorism
Enforcement and Prevention (STEP) notice to Gonzalez before the current incident and
Gonzalez admitting “knowing that the gang is known for committing grand theft auto,
GTA, weapon violations and sales of narcotics . . . .”
              In Sengpadychith, supra, 26 Cal.4th 316, the Supreme Court stated the
prosecution could satisfy the “primary activities” element by expert testimony of the type
found in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), where a police gang
expert testified the defendant’s gang “was primarily engaged in the sale of narcotics and
witness intimidation.” (Sengpadychith, supra, at p. 324.) As the court explained, a gang
expert may give opinion testimony based upon hearsay, including conversations with
gang members and the defendant (Gardeley, supra, at p. 620 [expert based opinion on
conversations with the defendants and with other Family Crip members, his personal
investigations of hundreds of crimes committed by gang members, and information from
his colleagues and various law enforcement agencies]). The court also permitted an
expert to rely on his or her personal investigation of past crimes by gang members and
information about gangs learned from the expert’s colleagues, or from other law
enforcement agencies. (Sengpadychith, supra, at p. 324.)
              Gonzalez acknowledges “Padilla did offer his opinion that West Myrtle’s
primary activities were narcotics sales and weapons violations.” But he asserts Padilla’s
opinion was based on “conversations with colleagues in his Strike Force, officers from
other divisions and West Myrtle members,” and the trial court expressly instructed the
jury it could not consider those statements as proof that the information contained in the

                                            12
statements was true. During Padilla’s testimony, the court provided the following
instruction: “As Detective Padilla has done, and as he may continue to do, he has
testified and may testify throughout the remaining portion of his testimony that in
reaching his conclusions as an expert witness he considered statements and police reports
made by other law enforcement officers. [¶] You may consider those statements
contained in those police reports and those statements from those other law enforcement
officers only to evaluate the expert’s opinion. Do not consider those statements as proof
that the information contained in the statements is true.” Gonzalez argues Padilla did not
personally have sufficient expertise with crimes committed by West Myrtle members to
support his opinion that narcotics sales and weapons violations were among their primary
activities.
              The question was whether the jury had sufficient evidence to conclude one
of West Myrtle’s “chief” or “principal” occupations was the commission of one or more
statutorily enumerated crimes. We assume the jury followed the court’s instruction and
did not consider the hearsay statements relied on by the expert as proof the information
contained in those statements was true, but it nevertheless could rely on the expert’s
opinion if it found an adequate basis supported the expert’s testimony. Here, the prior
offenses committed by West Myrtle gang members, including Gonzalez, supported
Padilla’s opinion West Mrytle’s primary activities included illegal possession of weapons
and narcotic sales, as did Gonzalez’s admission that West Myrtle was known to commit
the enumerated offenses.
              Gonzalez argues Padilla testified not all of the 100 gang members he spoke
to belonged to West Myrtle, his 50 arrests of gang members involved members of
different gangs, and although he spoke to West Myrtle members about their activities,
“he did not testify what those members told him their activities were.” Of course, the
jury could infer at least some of Padilla’s information about West Myrtle’s activities

                                            13
came from his conversations with West Myrtle members. Gonzalez’s arguments relate to
the weight due Padilla’s opinion, not the sufficiency of evidence on appeal. Nothing
suggests Padilla’s opinion concerning the primary activities prong lacked adequate
foundation.
              In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.) provides a
study in contrast. There, the gang expert testified “‘I know they’ve [gang members]
committed quite a few assaults with a deadly weapon, several assaults. I know they’ve
been involved in murders. [¶] I know they’ve been involved with auto thefts,
auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Id. at p. 611.) The
appellate court noted, “No specifics were elicited as to the circumstances of these crimes,
or where, when, or how [the expert] had obtained the information. He did not directly
testify that criminal activities constituted [the gang’s] primary activities. Indeed, on
cross-examination, [he] testified that the vast majority of cases connected to [the gang]
that he had run across were graffiti related.” (Id. at pp. 611-612.) The court also
concluded the expert’s testimony lacked adequate foundation. “We cannot know whether
the basis of [his] testimony on this point was reliable, because information establishing
reliability was never elicited from him at trial. It is impossible to tell whether his claimed
knowledge of the gang’s activities might have been based on highly reliable sources, such
as court records of convictions, or entirely unreliable hearsay. [Citation.] [The]
conclusory testimony cannot be considered substantial evidence as to the nature of the
gang’s primary activities.” (Id. at p. 612, fns. omitted.) The court noted the expert’s
knowledge of the gang’s activities could be based on reliable hearsay. (Id. at p. 612,
fn. 3.) The court also determined the expert’s testimony concerning two specific assaults
committed by other gang members did not, taken together and without more, provide
substantial evidence gang members had “consistently and repeatedly” committed
enumerated crimes. (Id. at p. 614, fn. 5 [“two assaults committed in 2004, without more,

                                             14
do not provide substantial evidence that gang members ‘consistently and repeatedly’
committed the crimes enumerated in the statute”]; People v. Perez (2004)
118 Cal.App.4th 151, 160 [retaliatory shootings of individuals over a period of less than a
week combined with a beating six years earlier insufficient]; cf. People v. Vy (2004)
122 Cal.App.4th 1209, 1225-1226 [three violent assaults by gang including current
charge over less than three-month period was sufficient evidence predicate crimes were
one of gang’s primary activities].)
              The expert testimony in Alexander L. differed from the expert testimony
here, in at least two important ways. First, the prosecutor in Alexander L. failed to
establish the foundation as to where, when, and how the expert obtained the information
he used to formulate his opinion. (Alexander L., supra, 149 Cal.App.4th at p. 612.)
Consequently, there was no way to know whether the information the expert cited was
reliable. (Ibid.) By contrast, Padilla testified he reviewed police reports and gathered
information from speaking with West Myrtle gang members and officers in the gang
investigations division. Second, the expert in Alexander L., never specifically testified
about the gang’s primary activities, merely stating he knew they had committed certain
crimes. (Id. at p. 611.) By contrast Padilla described three incidents resulting in the
convictions of West Myrtle gang members for weapons violations and the sales of
narcotics, and this coupled with other testimony concerning Padilla’s investigation of
West Myrtle constituted sufficient evidence of the gang’s primary activities. The case at
bar is more properly compared to our decision in People v. Martinez (2008)
158 Cal.App.4th 1324 (Martinez). Here, as in Martinez, Padilla provided sufficient
foundation because he had both training and experience as a gang expert, and he
specifically testified about West Myrtle’s primary activities. (Id. at p. 1330.)




                                             15
E.         The Jury Was Not Given Contradictory Instructions Regarding Motive
                Gonzalez contends the trial court erred by providing CALCRIM No. 370
without specifying it did not apply to the section 186.22 gang enhancements.3 As given
to the jury, CALCRIM No. 370 provided, “The People are not required to prove that the
defendant had a motive to commit any of the crimes charged. In reaching your verdict
you may, however, consider whether the defendant had a motive. [¶] Having a motive
may be a factor tending to show that the defendant is guilty. Not having a motive may be
a factor tending to show the defendant is not guilty.” (See People v. Hillhouse (2002)
27 Cal.4th 469, 503-504 [motive describes the reason a person chooses to commit a
crime, which is different from a required mental state such as intent or malice].) Gonzalez
argues “contrary to CALCRIM no. 370, motive is an element of the gang
enhancements . . . , and the jury was so instructed. . . .” (See CALCRIM No. 1401 [gang
enhancements required a finding the crimes were committed for the benefit of, at the
direction of, or in association with a criminal street gang, and the defendant intended to
assist, further or promote criminal conduct by gang members]; CALCRIM No. 1403 [jury
could consider evidence of gang activity for limited purpose of deciding whether the
defendant acted with the intent, purpose, and knowledge required to prove the gang-
related enhancements or the defendant “had a motive to commit the crimes charged.”].)


       3
               We assume Gonzalez did not forfeit his objection to the jury instructions by
failing to raise them at trial. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192
[defendant cannot complain on appeal that an instruction was too general or incomplete
unless he requested clarifying or amplifying language; People v. Smithey (1999)
20 Cal.4th 936, 976 [defendant need not object to an instruction that incorrectly states the
law and affects his substantial rights].) Gonzalez claims CALCRIM No. 370 incorrectly
states the law because section 186.22 requires the prosecution to prove motive as an
element of the gang enhancements.
                                             16
According to Gonzalez, “[t]he emphasized sections of the statute and instruction
highlight the requisite motive element underlying the accompanying acts. CALCRIM no.
370 therefore erroneously was given without clarification or modification, because it
contradicted CALCRIM no. 1401 and CALCRIM no. 1403.”
              By its terms, CALCRIM No. 370 only applies to “the crimes charged,” not
enhancements. Thus, CALCRIM No. 370 did not contradict section 186.22 and
CALCRIM Nos. 1401 and 1403, even if we accept Gonzalez’s dubious assumption
motive is an element of the gang enhancements. People v. Fuentes (2009)
171 Cal.App.4th 1133, rejected the argument Gonzalez raises and held that motive is not
an element of a gang enhancement. As the Fuentes court explained, “[a]n intent to
further criminal gang activity is no more a ‘motive’ in legal terms than is any other
specific intent. We do not call a premeditated murderer’s intent to kill a ‘motive,’ though
his action is motivated by a desire to cause the victim’s death.” (Id. at p. 1139.) The
combined instructions “told the jury [that] the prosecution must prove that [defendant]
intended to further gang activity but need not show what motivated his wish to do so.”
(Id. at pp. 1139-1140.) Accordingly, “[t]his was not ambiguous and there is no reason to
think the jury could not understand it.” (Id. at p. 1140.) Finally, CALCRJM No. 1403,
which told the jury it could consider gang activity evidence in deciding whether “[t]he
defendant had a motive to commit the crimes charged,” does not change the analysis.
The prosecution was not required to prove motive, but the motive instruction correctly
makes clear that “[h]aving a motive may be a factor tending to show the defendant is
guilty.” The prosecution was permitted to argue motive, even though it was not required
to prove it. The trial court did not err.




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                                        III
                                   DISPOSITION
            The judgment is affirmed.



                                              ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



FYBEL, J.




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