California Court of Appeal Jan 10, 2014 No. E057518Unpublished
Filed 1/10/14 P. v. Willis CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E057518
v. (Super.Ct.No. RIF1202867)
JOSHUA JERBAR WILLIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas D. Glasser,
Judge. Affirmed.
Donna L. Harris, 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, Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant Joshua Jerbar Willis guilty on three counts of second
degree burglary (Pen. Code,1 § 459, counts 1-3), and on one count of actively
participating in a criminal street gang in violation of the Street Terrorism Enforcement
and Prevention Act (STEP Act) (§ 186.22, subd. (a), count 4). The jury also found true
1130 (Rodriguez).) “Mere active and knowing participation in a criminal street gang is
not a crime. Applying the third element of section 186.22[, subdivision] (a), a defendant
may be convicted of the crime of gang participation only if he also willfully does an act
that ‘promotes, furthers, or assists in any felonious criminal conduct by members of that
gang.’ (§ 186.22[, subd.] (a).)” (Id. at pp. 1130-1131.)
A. Substantial Evidence of Defendant’s Active Gang Membership in May 2012
The gang expert’s testimony constituted substantial evidence that defendant was
an active participant in the PPHG gang in May 2012. The expert based his opinion in
part on his review of field investigation cards, which stated that on several occasions
defendant and his two confederates admitted to police that they were members of the
gang, and from his review of photographs showing the three men’s respective tattoos. In
fact, the officer testified that defendant’s “PPHG” tattoo was the most significant fact for
him because it signified that defendant was loyal to the gang and had put in the work
necessary to stay a member of the gang in good standing. Moreover, the officer testified
that often former gang members either have their gang tattoos removed or have a black
line tattooed over them, and the clear implication was that defendant’s tattoos had not
been removed or covered up. Besides defendant’s admissions to gang membership made
to officers in the field, the expert testified that when defendant was booked into the
county jail in the current case, he identified himself as a member of the PPHG and
testified to the significance of that identification.
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The expert also based his opinion on defendant’s association with other admitted
members of the PPHG. He testified the PPHG had numerous members who were related
by blood, and that its members were “real close” to each other. In his opinion, that
defendant spent time with and participated in the three burglaries with his brother and
first cousin, both of whom the expert testified were documented members of the PPHG,
helped establish that defendant was also an active member of the gang. Moreover, the
officer testified that in March 2012, defendant attended the funeral of a member of the
gang who was killed by police and was photographed with other members of the PPHG,
including his brother, his cousin, and “Spicy Low,” a founding member of the gang. The
expert testified that only active members, who were in good standing, would have been
permitted to attend such a funeral.
Finally, the expert based his opinion on the types of crimes defendant committed.
He testified that in October 2004, defendant was convicted of being a felon in possession
of a firearm, which the expert identified as a “primary activity” of the gang. Likewise,
the expert testified that the three Target store burglaries constituted defendant “putting in
work” for the gang, which would help elevate defendant’s status in the gang because the
ill-gotten gains might be used to purchase guns or illegal narcotics for resale.
Defendant contends the evidence we just recited is insufficient to sustain his
conviction because the expert’s testimony was unreliable and because defendant
presented contrary evidence to the effect that he was no longer an active member of the
gang when he stole from the Target stores, and that he stole the video games to pay for
family necessities and not to benefit the gang. Neither argument persuades us.
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i. Reliability of Gang Expert’s Testimony
With respect to the gang expert’s opinion that defendant and his confederates were
active gang members, defendant contends that testimony is unreliable because the officer
“had no personal contact” with either of them and he only gleaned his information about
them from police reports, field investigation cards, and photographs prepared by other
officers.3 But personal knowledge is not required for introduction of expert witness
testimony. (See, e.g., People v. Vang (2011) 52 Cal.4th 1038, 1048 [although gang
expert witness was not at the scene of the crime and “had no personal knowledge whether
any of the defendants assaulted [the victim] and, if so, how or why,” the “jury was as
competent as the expert to weigh the evidence and determine what the facts were,
including whether the defendants committed the assault”].)
“Evidence Code section 801 limits expert opinion testimony to an opinion that is
‘[b]ased on matter . . . perceived by or personally known to the witness or made known to
[the witness] at or before the hearing, whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the subject to
which [the expert] testimony relates . . . .’ (Id., at subd. (b).)” (People v. Gardeley
(1996) 14 Cal.4th 605, 617, italics added.) Defendant does not, and could not, dispute
that the sources from which the expert gleaned his information were the type that a gang
3 In his opening brief, defendant also appears to contend the expert witness’s testimony is unreliable because he first became acquainted with the PPHG in 2012. To the contrary, the officer testified he first became acquainted with the PPHG when he was a patrol officer, some years before he became a gang investigator.
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expert may reasonably rely upon. (People v. Williams (2009) 170 Cal.App.4th 587, 622
(Williams) [Fourth Dist., Div. Two] [“Gang experts may rely on their own investigations
and information obtained from other law enforcement officers, including information
from police reports, in forming their opinions”].)
ii. Contrary Defense Evidence
Turning to defendant’s contrary evidence to rebut each of the bases of the expert’s
opinion, that is an argument about the weight to be given to the expert’s testimony and
about which witness or witnesses should be believed, matters which are soundly left to
the trier of fact. (Albillar, supra, 51 Cal.4th at p. 60.) For instance, defendant contends
the fact that he self-identified with the PPHG during his jail classification interview is not
reliable evidence that he was an active member of the gang at the time because, from his
own testimony, a reasonable jury could conclude defendant choose to be housed with his
old gang rather than in the general population or in protective custody for his personal
safety. This argument clearly goes to the weight to be given by the jury to the expert’s
and to defendant’s testimony. (Williams, supra, 170 Cal.App.4th at p. 623.)
We noted in Williams that “‘the sufficiency of the evidence showing active
participation is not altered by the existence of other evidence offered by defendant to
show he was not an active participant in the gang. Resolution of conflicting evidence and
credibility issues was for the jury to decide. [Citation.] It is clear from the verdict
finding defendant guilty of street terrorism that the jury believed he was actively
participating in the gang. Because substantial evidence supports this determination,
“‘that the circumstances might also reasonably be reconciled with a contrary finding does
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not warrant a reversal of the judgment.’”’” (Williams, supra, 170 Cal.App.4th at p. 626,
quoting People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.)
B. Substantial Evidence That Defendant Willfully Furthered, Promoted, Or
Assisted in Felonious Conduct by Members of the Gang
The record also contains substantial evidence that defendant willfully furthered,
promoted, or assisted in the felonious conduct of the PPHG members. As already stated,
the expert testified that in his opinion, defendant’s participation in the three Target store
burglaries constituted defendant doing work for the gang, which benefited the gang
because the proceeds from the burglaries might be used to buy guns or drugs.
As with the element of active membership in the gang, defendant’s argument that
the record contains contrary evidence to establish he did not further, promote, or assist in
the gang’s felonious conduct, goes to the weight and credibility of the evidence and must
be rejected.
II
SUBSTANTIAL EVIDENCE SUPPORTS THE TRUE FINDING THAT DEFENDANT
ACTED IN ASSOCIATION WITH GANG MEMBERS AND WITH THE
SPECIFIC INTENT TO PROMOTE, FURTHER, OR ASSIST IN ANY
CRIMINAL CONDUCT BY THE GANG’S MEMBERS
Defendant also challenges the sufficiency of the evidence to support imposition of
a sentence enhancement under section 186.22, subdivision (b)(1)(A). As he does in
relation to his substantive gang conviction, defendant contends the People did not
introduce substantial evidence that he acted in association with a criminal street gang in
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May 2012 because (1) the gang expert’s testimony was not based on personal knowledge
and was therefore unreliable, and (2) he presented substantial evidence that at the time of
the Target store burglaries he was no longer an active member of the gang. Defendant
also argues the People did not introduce substantial evidence that he had the specific
intent to promote, further, or assist in the gang’s criminal conduct because the Target
store burglaries were not gang related. We conclude otherwise and affirm the imposition
of the gang enhancement.
“Section 186.22[, subdivision] (b)(1) imposes additional penalties for ‘any person
who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members . . . .’ Unlike the substantive offense, the
enhancement does not require proof of participation in a gang. It is further distinguished
from the substantive offense by applying only to gang-related offenses and by requiring
the defendant to act with the specific intent to promote, further, or assist any criminal
conduct by gang members.” (Rodriguez, supra, 55 Cal.4th at p. 1130, fn. 5.)
A. Substantial Evidence That Defendant Acted in Association with Members of
the Gang in May 2012
Defendant does not dispute that he participated in the Target store burglaries with
his brother and cousin. The record contains substantial evidence from which the jury
could conclude that defendant and his two confederates were active members of the
PPHG at the time of the burglaries, so the jury could have reasonably drawn the
additional inference that defendant’s participation in the burglaries was in association
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with the gang’s members. This evidence supports the gang expert’s testimony that he
was of the opinion the burglaries were done by defendant in association with the gang’s
members.
Defendant’s arguments on this element, that the expert’s opinion that defendant
and his confederates were active gang members is unreliable and that defendant presented
contrary evidence, have already been rejected.
B. Substantial Evidence That Defendant Acted with the Specific Intent to
Promote, Further, Or Assist in Criminal Conduct by Members of the Gang
With respect to the second element for the enhancement, the expert testified the
Target store burglaries were not necessarily done for the financial benefit of the gang.
Nevertheless, his testimony and the testimony about the burglaries themselves is
substantial evidence that, when defendant committed the burglaries in association with
active members of the PPHG, he did so with the specific intent to promote, further, or
assist in that criminal conduct—by actually entering the Target stores and stealing
merchandise.
Defendant argues the second element has not been sufficiently established because
the People introduced no evidence that the burglaries were “gang related” and committed
for the benefit of the gang. We disagree. Criminal conduct is “gang related,” and is
subject to enhanced punishment under section 186.22, subdivision (b)(1), if the defendant
acted in association with the gang and acted to promote its criminal conduct. (Albillar,
supra, 51 Cal.4th at p. 60.) The defendant need not have specifically intended to promote
or benefit the gang itself. (Id. at p. 67.) Therefore, even if the jury credited defendant’s
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testimony that he planned on using the proceeds from the burglaries to buy diapers and
other necessities it could still reasonably conclude that defendant had the specific intent
to advance the criminal conduct of his fellow gang members.
And even if defendant were correct that the crimes must be “gang related,” his
arguments about the sufficiency of the evidence, like those made about the substantive
crime of active participation in a criminal street gang, go to the weight to be given to the
evidence. For example, defendant contends the fact that he and his confederates stole
from Target stores in Los Angeles and Riverside Counties, instead of on the PPHG’s
home turf of San Bernardino, is further evidence that the crimes were not gang related.
That a reasonable jury might draw such an inference does not diminish the fact that
defendant’s jury reasonably drew the contrary inference. (Williams, supra, 170
Cal.App.4th at p. 626.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
HOLLENHORST J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the defendant's conviction for active participation in a criminal street gang and the true findings on gang enhancements, as the jury was entitled to credit the gang expert's testimony over the defendant's claims of withdrawal.
Issues
Whether substantial evidence supports the conviction for active participation in a criminal street gang under Penal Code section 186.22, subdivision (a).
Whether substantial evidence supports the jury's true findings on gang enhancements under Penal Code section 186.22, subdivision (b).
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The gang expert’s testimony constituted substantial evidence that defendant was an active participant in the PPHG gang in May 2012.”
“Resolution of conflicting evidence and credibility issues was for the jury to decide.”