P. v. Williams

Filed 5/4/07 P. .v Williams CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MARIO LEE WILLIAMS et al.,
Defendants and Appellants.
F048580
(Super. Ct. Nos. MCR020946A &
MCR020946B)
OPINION
APPEALS from judgments of the Superior Court of Madera County. John W.
DeGroot, Judge.
Candace Hale, under appointment by the Court of Appeal, for Defendant and
Appellant Mario Lee Williams.
Linda Buchser, under appointment by the Court of Appeal, for Defendant and
Appellant Kiteran Lavell Lee.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond
L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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A jury convicted appellants Mario Lee Williams and Kiteran Lavell Lee of
numerous felonies and enhancements arising out of an armed robbery of a bar in
Chowchilla. The trial court sentenced them to lengthy prison sentences. They challenge
the sufficiency of the evidence to support the criminal street gang enhancement imposed
pursuant to Penal Code section 186.22, subdivision (b).1 They also challenge the
imposition of the upper term of imprisonment as violating Blakely v. Washington (2004)
542 U.S. 296 (Blakely).
We conclude there is no constitutional error under Blakely or Cunningham v.
California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We further conclude the
evidence was sufficient to support the section 186.22, subdivision (b) enhancement.
We will credit appellant Lee with one additional day of presentence credit and in
all other respects affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On September 16, 2003, at approximately 10:00 p.m., Stanley Cantrell, Anna Del
Bianco, Paulette Leonard, and Irma Ferrarese were in the bar of Farnesi’s Restaurant in
Chowchilla. Three Black males wearing bandanas over their lower faces and carrying
firearms strode into the bar through a side door. Ferrarese recognized Lee as one of the
men.
The three men demanded the victims turn over all their money and valuables and
then ordered the four people to lie down on the floor. As soon as the robbers left by the
side door, Leonard ran out the front door and saw a blue or gray compact car with four
people in it pulling away. Leonard jumped in her car and attempted to follow the
compact on southbound Highway 99. She eventually lost sight of the compact car.
1 All further statutory references are to the Penal Code unless otherwise noted.

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While Leonard was pursuing the robbers, someone in the restaurant reported the robbery
to law enforcement.
Around 11:00 p.m. that same evening, Williams and Lee, along with a
coparticipant, Brandon Crane, attempted to rob a liquor store in Fresno. The burglar
alarm went off almost immediately, and the three men fled the scene.
Around 12:30 a.m. the morning of September 17, three armed men wearing
bandanas robbed a pizza parlor in Fresno. After the robbers left, the police were notified.
A citizen monitoring the police scanner saw a vehicle matching the reported
description and notified the police. A high speed chase ensued on northbound Highway
99, ending near Chowchilla where the suspects’ car finally was stopped. During the
chase, the suspects had thrown various items out the car window. Williams, Lee, and
Crane were taken into custody at the scene.
Over the next day or two, various items were recovered in the car and along the
chase route on Highway 99, including a blue knit cap, a blue bandanna, a blue Harley
Davidson cap, a blue hooded sweatshirt, a Tec-9 assault rifle with ammunition, an empty
nine-millimeter ammunition box, and personal property of the victims.
Williams and Lee were charged in Madera County with four counts of robbery,
burglary, and membership in a street gang as a substantive offense. In addition, it was
alleged that the robberies and burglary were committed for the benefit of and at the
direction of a criminal street gang. As to all counts, it was alleged that Williams and Lee
personally used a firearm. It also was alleged that Lee suffered a prior serious felony
conviction and served a prior prison term. Williams was alleged to have served two prior
prison terms.
At trial, Sergeant Thomas Trinidad of the Merced Police Department testified as
an expert on gangs. Trinidad described the initiation process for gang members, the
significance of tattoos, hand signs, graffiti, and style of dress. In the gang culture,
committing property crimes is seen as supporting the gang financially, while committing

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violent crimes is seen as supporting the gang by generating fear of the gang among other
gangs and the general public. Violence also serves to deter victims from testifying.
Property crimes are committed to support the gang lifestyle because most gang members
are unemployed.
Trinidad is familiar with a criminal street gang known as the Merced Gangster
Crips. The gang consists of 86 members or affiliates, uses the color blue as an
identifying color, including the wearing of blue bandanas, and has robbery as one of its
primary activities.
Based upon Lee’s past admissions, his contacts with Merced police, and state
parole records, Trinidad was of the opinion that Lee was a member of the Merced
Gangster Crips. Trinidad also testified that Williams was a member of the same gang,
based upon gang photos, the “MGC” tattoo on Williams’s arm, a chest tattoo reading
“MG Crip gangster,” and the moniker “Mr. Dice,” which also was tattooed on Williams.
A hypothetical fact pattern, based upon the Farnesi’s robbery, was posed to
Trinidad. He opined that each of the three perpetrators would receive a benefit from the
crime, as well as the gang as a whole, and each perpetrator and the gang would receive a
monetary benefit and an increase in status. It was to the gang’s benefit to have multiple
gang members involved in the commission of a crime because it increased the chance of
a successful outcome. Since gang members tend to be unemployed, their main means of
economic support is by committing crimes for profit.
Trinidad also testified that if gang members went together to a location for the
purpose of committing a crime, it would tend to show the crime was committed for the
benefit of, or at the direction of, the gang. It also was significant, in Trinidad’s opinion,
that Lee, Williams, and Crane wore blue clothing and blue bandanas during the robbery.

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Additionally, Trinidad presented various court records establishing that the
required predicate offenses had been committed by the Merced Gangster Crips.
The jury found Williams and Lee guilty as charged of all substantive offenses and
found the enhancements true. In a bifurcated trial on the prior conviction allegations, Lee
admitted to one prior prison term and Williams admitted to two prior prison terms.
DISCUSSION
Williams and Lee raise two principal issues: insufficiency of the evidence to
support the gang enhancement and a constitutional challenge to the imposition of the
upper term of imprisonment.
Lee also contends he is entitled to one additional day of presentence credit, which
the People concede.
I. Sufficiency of the Evidence
Both Williams and Lee contend the evidence was insufficient to support the street
gang enhancements. Specifically, they maintain that (1) no facts support the finding that
the offenses were committed for the benefit of a street gang; (2) no facts support the
finding that they had the specific intent to promote criminal conduct; and (3) expert
testimony alone is insufficient to sustain a finding that the offenses were gang related.
None of these contentions is convincing.
Standard of review
In determining the sufficiency of the evidence, we review the entire record to
determine whether there was evidence that was reasonable, credible, and of solid value
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; People v. Bolin (1998) 18 Cal.4th
297, 331.) The standard is the same where the prosecution relies primarily on
circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) The trier of fact
may reasonably rely on the testimony of a single witness, unless the testimony is

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physically impossible or patently false. (Evid. Code, § 411; People v. Cudjo (1993) 6
Cal.4th 585, 608.)
We resolve all conflicts in the evidence and questions of credibility in favor of the
verdict and indulge every reasonable inference the trier of fact could draw from the
evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is
unwarranted unless “‘upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at
p. 331.) This same inquiry applies to an evaluation of the sufficiency of the evidence to
support an enhancement. (People v. Alvarez (1996) 14 Cal.4th 155, 225.)
Role of expert testimony
The prosecution may rely on expert testimony to establish the required elements of
the gang enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) Expert
testimony concerning the culture, habits, and psychology of a gang is permissible
because these subjects are “‘sufficiently beyond common experience that the opinion of
an expert would assist the trier of fact.’ [Citation.]” (Evid. Code, § 801, subd. (a));
People v. Gardeley (1996) 14 Cal.4th 605, 617.) An individual’s membership in a
criminal street gang also is a matter beyond the common knowledge of jurors and thus a
proper subject of expert testimony. (People v. Gamez (1991) 235 Cal.App.3d 957, 965,
disapproved on other grounds in Gardeley, at p. 624, fn. 10.) As stated in People v.
Valdez (1997) 58 Cal.App.4th 494, “determining whether someone is involved [in a
gang] and the level of involvement is not a simple matter and requires the accumulation
of a wide variety of evidence over time and its evaluation by those familiar with gang
arcana in light of pertinent criteria.” (Id. at p. 507.)
Expert testimony is admissible to address the definition of a criminal street gang,
the requisite primary activities and predicate offenses, and the gang’s past criminal
conduct and ongoing criminal nature. (People v. Duran (2002) 97 Cal.App.4th 1448,
1463-1465.) Expert testimony also is admissible regarding the size, composition, or

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existence of a gang, an individual’s membership in or association with a gang, gang-
related tattoos, and gang-related clothing and indicia. (People v. Killebrew (2002) 103
Cal.App.4th 644, 656-657.)
Numerous cases have held that an expert may rely on hearsay in forming his or her
opinion. (See People v. Catlin, supra, 26 Cal.4th at p. 137; People v. Montiel (1993) 5
Cal.4th 877, 918-919; People v. Duran, supra, 97 Cal.App.4th at p. 1463.) Expert
testimony may be premised on material that is not admitted into evidence -- or on
material that is not ordinarily admissible, such as hearsay -- as long as that material is
reliable and of a type that is reasonably relied upon by experts in the particular field in
forming their opinions. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) An expert
witness whose opinion is based on such inadmissible matter can, when testifying,
describe the material that forms the basis of his or her opinion. (Ibid.) “[A] gang expert
may rely upon conversations with gang members, his or her personal investigations of
gang-related crimes, and information obtained from colleagues and other law
enforcement agencies. [Citations.]” (Duran, at p. 1463.)
Gang purpose and intent
Trinidad’s opinion that Williams and Lee were gang members and committed the
offenses for the benefit of the gang was based on law enforcement records, statements of
Williams and Lee, statements of other members of the Merced Gangster Crips, the
physical evidence of tattoos and clothing, and Trinidad’s knowledge of gang culture, all
matters on which expert testimony is appropriate. (People v. Sengpadychith, supra, 26
Cal.4th at p. 322.) Even if Trinidad relied in part on information or material that
constitutes hearsay in forming his opinion, it is of the type that is reasonably relied upon
by experts in the field and his reliance on the information is permissible. (People v.
Duran, supra, 97 Cal.App.4th at pp. 1463-1465.)
Both Williams and Lee were members of the Merced Gangster Crips, drove
together to Chowchilla, and committed the offenses together. There also was sufficient

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evidence that both wore blue bandanas and clothing. Trinidad opined in response to a
hypothetical question that the use of blue bandanas and blue clothing during the
commission of the offenses was a significant factor in identifying the crime as gang
related and the perpetrators as having the intent to promote the gang. Trinidad also
testified that robbery was one of the primary activities of the Merced Gangster Crips, and
that the commission of robberies enhanced the status of the gang and gang members and
provided a source of income for gang activities. Additionally, he noted that all of the
perpetrators of the Farnesi robbery were members of the Merced Gangster Crips.
A gang expert may testify as to the motivation for a crime and whether the crime
is committed for the benefit of a gang. (People v. Zermeno (1999) 21 Cal.4th 927, 930.)
In response to a hypothetical question based upon the scenario surrounding the Farnesi
robbery, Trinidad testified that, in his opinion, the offense was committed for the benefit
of the gang, with the intent to promote the gang. The testimony of a single witness is
sufficient for conviction. (People v. Panah (2005) 35 Cal.4th 395, 489.)
Williams and Lee rely on the cases of People v. Killebrew, supra, 103 Cal.App.4th
644 and In re Frank S. (2006) 141 Cal.App.4th 1192. They are distinguishable. In both
Killebrew and Frank S. the experts testified regarding a specific, subjective intent
harbored by a specific individual at a specific point in time, rather than in response to a
hypothetical question that the perpetrators had the intent to promote the gang. Both cases
acknowledge that it is appropriate for experts to testify on the issue of any gang
motivation for a crime. (Frank S., at p. 1197; Killebrew, at pp. 656-657.)
Williams and Lee also challenge the sufficiency of the evidence providing the
factual support for Trinidad’s opinions. They claim that there was conflicting evidence
concerning the colors of the bandanas worn by and the general attire of the robbers. The
presence of conflicting evidence is of no consequence to our review. The testimony of
one witness can provide substantial evidence and is sufficient for conviction. Regardless
of whether the evidence presented at trial is direct or circumstantial, conflicting or

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undisputed, the relevant inquiry on appeal remains whether any reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt. (People v. Towler
(1982) 31 Cal.3d 105, 118.)
Here, the evidence was sufficient for a reasonable jury to have found that Williams
and Lee committed the offenses for the benefit of a street gang with the intent to promote
the gang.
II. Upper Term Sentence
Lee and Williams contend the imposition of the upper term of imprisonment is
unconstitutional because the factors relied upon by the trial court to impose the
aggravated term were not found true by a jury.
Appropriate trial court considerations
In Blakely, the United States Supreme Court held that other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt or admitted
by the defendant. (Blakely, supra, 542 U.S. at pp. 301, 303.) Recently, in Cunningham,
supra, 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court clarified that “In
accord with Blakely, … the middle term prescribed in California’s statutes, not the upper
term, is the relevant statutory maximum. [Citation.]” (Id. at p. ___ [127 S.Ct. at p. 868].)
An upper term constitutionally may be imposed if it is based upon facts admitted by the
defendant, facts reflected in the jury’s verdict, or a prior conviction. (Blakely, at p. 301.)
Recidivism is a traditional basis for increasing a defendant’s sentence.
(Almendarez-Torres v. United States (1998) 523 U.S. 224, 243-244 (Almendarez-
Torres).) Recidivism factors do not relate to the current offense, but to criminal history.
(Ibid.) Recidivism factors that may be found by a judge include prior convictions, prior
prison terms, the number of convictions, and parole or probation status, as these pertain
to a defendant’s criminal history, not the current offense. (See ibid.)

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Lee’s sentence
In imposing the aggravated term for the principal offense on Lee, the trial court
noted: (1) the victims were elderly; (2) Lee had a history of engaging in violent conduct
as demonstrated by his prior criminal history of robberies and assault on a peace officer;
and (3) his performance while on parole was unsatisfactory in that he was on parole at the
time the current offenses were committed. The trial court also imposed an aggravated
term on the enhancement, stating that it was doing so because Lee was on parole at the
time the offenses were committed.
Lee asserts there was no evidence presented establishing the age of the victims,
and the People do not dispute this contention. This factor, therefore, cannot be a basis for
imposing the upper term pursuant to Blakely and Cunningham. Excluding this factor,
there are two recidivism factors that validly can be used as a basis for imposition of the
upper term.
Under Cunningham and Blakely, Lee’s prior criminal history and his status as a
parolee are both Almendarez-Torres factors that the trial court validly can consider in
constitutionally imposing the upper term. Issues of fact concerning a defendant’s prior
criminal history and criminal status do not warrant a jury trial. (Rangel-Reyes v. United
States (2006) 547 U.S. ___ [126 S.Ct. 2873, 2874] (Stevens, J., statement re denial of
certiorari).) Lee has not raised any challenge to the proof of the prior convictions and
parole status. (Almendarez-Torres, supra, 523 U.S. at pp. 247-248.)
The trial court also relied on Lee’s poor performance on parole as a basis for the
upper term. The trial court noted, as it was entitled to do, that Lee committed the current
offenses while on parole. Thus, Lee’s poor performance on parole essentially was
determined by the jury when it returned guilty verdicts on the instant offenses.
Regardless of whether any improper factors were cited as a basis for imposition of
the upper term, the trial court constitutionally could rely on Lee’s history of prior
convictions and his parole status as grounds for imposing the upper term. One

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aggravating factor is sufficient for imposition of an upper term. (People v. Cruz (1995)
38 Cal.App.4th 427, 433-434.)
Because the trial court cited only one improper factor, Lee’s very poor prior
record convinces us beyond a reasonable doubt that Lee suffered no prejudice under
Cunningham. The trial court would have sentenced him to the upper term even without
considering the improper factor. (People v. Price (1991) 1 Cal.4th 324, 492.)
Williams’s sentence
In imposing aggravated terms, the trial court noted that Williams had a history of
violent conduct, as demonstrated by his prior convictions; his prior convictions were
numerous; the victims were elderly; and Williams’s prior performance on probation or
parole was unsatisfactory. Williams also admitted serving two prior prison terms.
In Williams’s case, his poor performance on parole was not tied to his commission
of the current offenses. Therefore, even if we excluded this factor and the age of the
victims from consideration, the trial court constitutionally could rely upon Williams’s
criminal history to impose the upper term. Williams had suffered numerous prior
convictions and had served prior prison terms before committing the current offenses.
Again, one aggravating factor justifies an upper term. (People v. Cruz, supra, 38
Cal.App.4th at pp. 433-434.)
Additionally, when counsel inquired about imposing a sentence of less than the
upper term, the trial court noted that the evidence in the case was “very strong.” The trial
court also indicated its disagreement with a plea agreement obtained for a third
participant in the offenses in another court, stating the agreement “did shock the
conscience” that the offender was treated so “leniently” in light of the evidence. Again,
in light of these comments we conclude beyond a reasonable doubt that the trial court
would not have imposed a lesser sentence if it were found that some factors could not
constitutionally be relied upon. (People v. Price, supra, 1 Cal.4th at p. 492.)

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III. Additional Credit
Lee’s claim of an additional day of presentence credit is not disputed. We will,
therefore, order that a corrected abstract of judgment be prepared reflecting 305 days of
credit.
DISPOSITION
The judgments are affirmed. The trial court shall prepare a corrected abstract of
judgment reflecting 305 days of presentence credit for Lee, and transmit it to the
appropriate agencies.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
DAWSON, J.
_____________________
HILL, J.

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