14 Cal.4th 605, S044184, People v. Gardeley

Docket Nº:S044184
Citation:14 Cal.4th 605, 59 Cal.Rptr.2d 356, 927 P.2d 713
Opinion Judge:[12] The opinion of the court was delivered by: Kennard
Party Name:People v. Gardeley
Attorney:[8] Janice M. Lagerlof and John M. Hanley, under appointments by the Supreme Court, for Defendants and Appellants. [9] John T. Philipsborn as Amicus Curiae on behalf of Defendants and Appellants. [10] Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald...
Case Date:December 23, 1996
Court:Supreme Court of California

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14 Cal.4th 605

59 Cal.Rptr.2d 356, 927 P.2d 713

THE PEOPLE, Plaintiff and Respondent,


ROCHELLE LONEL GARDELEY et al., Defendants and Appellants.


Supreme Court of California

December 23, 1996

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Janice M. Lagerlof and John M. Hanley, under appointments by the Supreme Court, for Defendants and Appellants.

John T. Philipsborn as Amicus Curiae on behalf of Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Mark S. Howell, Allan Yannow, Ann K. Jensen and Edward P. O'Brien, Deputy Attorneys General, for Plaintiff and Respondent.



At issue in this case are certain provisions of the Street Terrorism Enforcement and Prevention Act, also known as the STEP Act, enacted by the Legislature in 1988. (Pen. Code, § 186.20 et seq.) Underlying the STEP Act was the Legislature's recognition that "California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (Pen. Code, § 186.21.) The act's express purpose was "to seek the eradication of criminal activity by street gangs." (Ibid.)

As relevant here, the STEP Act imposes certain penal consequences when crimes are committed "for the benefit of, at the direction of, or in association

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with any criminal street gang." (Pen. Code, § 186.22, subd. (b) (1), italics added.) A "criminal street gang," as defined by the act, is any ongoing association of three or more persons that shares a common name or common identifying sign or symbol; has as one of its "primary activities" the commission of specified criminal offenses; and engages through its members in a " pattern of criminal gang activity." (Id., subd. (f), italics added.) Under the act, "pattern of criminal gang activity" means that gang members have, within a certain time frame, committed or attempted to commit "two or more" of specified criminal offenses (so-called "predicate offenses"). (Pen. Code, § 186.22, subd. (e).) 1

Here, based on the jury's determination that the prosecution had satisfied the STEP Act requirements, the trial court imposed increased sentences as to both defendants. The Court of Appeal, however, struck the sentence enhancements on the ground that the prosecution had failed to prove the requisite "pattern of criminal gang activity." The Court of Appeal held that evidence of "two or more" predicate offenses by gang members can establish a "pattern of criminal gang activity" only if each such offense is shown to be "gang related." We disagree that the predicate offenses must be "gang related." We also disagree with the Court of Appeal's conclusion that the prosecution failed to prove the requisite pattern of criminal gang activity.


On August 4, 1992, about 2 a.m., Edward Bruno was riding in a car with some friends. Bruno, who had been drinking, needed to urinate. The car stopped near Farm Drive and Old Hillsdale Avenue in San Jose. While Bruno was relieving himself in the carport of an apartment complex, which happened to be in an area controlled by the Family Crip gang, he was approached by defendants Rochelle Lonel Gardeley and Tommie James Thompson, and one Tyrone Dermont Watkins. Gardeley shoved Bruno and asked, "What are you doing here, white boy?" Bruno pushed Gardeley back and punched him. Someone then hit Bruno in the head. When Bruno tried to get away, the three men pursued him. They knocked Bruno to the ground, repeatedly punched and kicked him, hit his thighs and rib cage with a bat or stick, and broke a large rock into pieces on his head. Taken from Bruno were

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a wristwatch, a gold neck chain, and $30. Bruno suffered an eye injury and multiple bruises, and required 20 stitches to his forehead. Apartment residents who witnessed the attack called the police. Minutes later, police officers stopped a car for speeding and making an illegal U-turn, and recovered from the ground outside the passenger door a plastic "baggie" containing .99 grams of cocaine. The driver of the car was defendant Thompson, and the passenger was defendant Gardeley, who had a bloody lip and blood on his T-shirt and arm.

Gardeley and Thompson were charged with attempted murder (Pen. Code, §§ 664 and 187); 2 assault with a deadly weapon, with a great bodily injury enhancement (§§ 245, subd. (a) (1)), 12022.7); and robbery (§ 211). Each of these offenses was alleged to have been committed "for the benefit of, at the direction of, or in association with [a] criminal street gang" (§ 186.22, subd. (b) (1)). Both defendants were also charged with a fourth offense, committing an assault (§ 240) and/or battery (§ 242) "for the benefit of, at the direction of, or in association with, [a] criminal street gang" (§ 186.22, former subd. (c), as amended by Stats. 1991, ch. 661, § 1; all references to "former subdivision (c)" are to this version); additionally, defendant Gardeley was charged with possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). 3

At trial, the prosecution presented evidence regarding the attack on Edward BruNo. Thereafter, the prosecution called as a witness Detective Patrick Boyd of the San Jose Police Department, who had 23 years of experience in the investigation of criminal street gangs. Boyd had interviewed both defendants after their arrests in this case. 4 Defendant Gardeley said that he had been a member of the Family Crip gang since 1983 and was known by the moniker or street name of "Trench." Defendant Thompson stated that he too was a Family Crip member and was known as "Capone." According to Thompson, the gang had approximately 70 active members. He admitted that he had been dealing cocaine at the apartment complex just before the confrontation with BruNo.

In the course of his testimony, Detective Boyd mentioned that he had also interviewed Tyrone Watkins, Bruno's third assailant. When the prosecutor

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then asked what Watkins had told Boyd, counsel for defendant Thompson objected on hearsay grounds. As an offer of proof, the prosecutor explained that he sought to elicit from Detective Boyd the statements made by Watkins, not "for the truth of the matter asserted," but to put before the jury facts on which Boyd could rely in rendering his expert opinion that the attack on Bruno "was gang activity in furtherance of ... the Family Crip gang." The prosecutor added that he also intended to ask Detective Boyd "hearsay questions" about some prior criminal acts involving members of the Family Crip gang.

Out of the jury's presence, the trial court held a hearing to allow the prosecution to make an offer of proof regarding the statements by Watkins and the other "hearsay" evidence that it intended to present. At the hearing, Detective Boyd provided additional details of his familiarity with the criminal activities of the Family Crip gang. Thereafter, the trial court ruled that Boyd could testify as an expert on criminal gang activity.

In the jury's presence, the trial court overruled defendant Thompson's hearsay objection to the questions the prosecutor asked Detective Boyd about the Tyrone Watkins interview. The court then informed the jury that certain "hearsay" would be introduced pertaining to Tyrone Watkins and other matters, but that the jury "may not consider those [hearsay] statements for the truth of the matter, but only as they give rise ... to the expert opinion in which questions will be asked which will follow." Immediately thereafter Detective Boyd testified that Tyrone Watkins had said that his street name was "T-Bone," and that he had been a member of the Family Crip gang since 1988. Boyd added that several other individuals had also admitted to him their membership in the Family Crip gang.

The prosecutor asked Detective Boyd for his opinion as to the primary purpose or activity of the Family Crip gang. Detective Boyd responded that based on investigations of hundreds of gang-related offenses, conversations with defendants and other Family Crip members, as well as information from fellow officers and various law enforcement agencies, it was his opinion that the Family Crip gang's primary purpose was to sell narcotics, but that the gang also engaged in witness intimidation and other acts of violence to further its drug-dealing activities.

The prosecutor then gave Detective Boyd this scenario: "Assuming hypothetically that we have an incident that took place at about 2:00 a.m. on [Old] Hillsdale and Farm [in San Jose] in which Family Crip gang members were present and one of which is out attempting to sell cocaine and a second is found with cocaine near his possession when detained, and a white male is

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observed urinating in this area and a fight breaks out with the white male and then the white male is chased down by the three Family Crip gang members, severely beaten, threatened, they said they were gonna kill him, then he is robbed of money, necklace and a watch." The prosecutor asked whether in Detective Boyd's expert opinion the attack on the White male as just described was "gang related activity." Boyd replied that it was, calling it a "classic" example of how a gang uses violence to secure its drug-dealing stronghold.

Detective Boyd explained: It is common practice for several gang members acting in concert to assault a person in full view of residents of an area where the gang sells drugs. Such attacks serve to intimidate the residents and to dissuade them from reporting the gang's drug-dealing activities to police. Gang...

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