P. v. Kidd 1/26/12 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C062075

Case Date: 05/16/2012

Preview:Filed 1/26/12

P. v. Kidd CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ---THE PEOPLE, Plaintiff and Respondent, v. JORDAN ISIAH KIDD, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. ZACHARY TYLER et al., Defendants and Appellants. C062512 (Super. Ct. No. 07F01299) C062075 (Super. Ct. No. 07F01299)

Following a home invasion that escalated into a kidnapping, sexual assault and attempted murder, defendants Zachary Tyler, David Griffin, Jordan Kidd, Lashea Merritt and Kimberly Knorr,

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all of whom were either members or associates of a criminal street gang named the 29th Street Crips, were variously convicted of the following crimes: robbery in concert,

burglary, kidnapping, oral copulation in concert, participation in a criminal street gang, conspiracy to commit murder, attempted murder, unlawful possession of a firearm, and unlawful possession of ammunition. Many of the offenses were also found

to have been committed for the benefit of a criminal street gang. All five defendants appeal various aspects of their convictions and/or sentences, and we have consolidated those appeals for argument and decision. We conclude there is

insufficient evidence to support Knorrs robbery conviction, and the gang enhancement imposed on the burglary count for all defendants must be reduced from 10 years to five because it was not alleged the burglary was a violent felony within the meaning of Penal code section 667.5, subdivision (c). (Further We also

undesignated section references are to the Penal Code.) conclude a fine imposed pursuant to section 667.6 must be

stricken and various corrections must be made to the abstracts of judgment. We further conclude the sentence imposed on

Merritt, who was only 15 years old at the time of the offenses and who will not be eligible for parole until she is over 100 years old, constitutes cruel and unusual punishment. Finally,

we conclude the determinate portion of the sentence imposed on Kidd violates section 1170.1 and shall remand for resentencing. In all other respects, we affirm the judgments. 2

FACTS AND PROCEEDINGS
At all times relevant to this matter, defendants Zachary Tyler, David Griffin and Lashea Merritt were members of a criminal street gang called the 29th Street Crips, which is based in South Sacramento. Tylers gang name was "Smash,"

Merritt was called "Lady Smash," and Griffin went by the name of "Baby Attitude." Defendant Jordan Kidd was a member of the

Valley High Crips, which is an "ally" of the 29th Street Crips. His gang name was "Five." Defendant Kimberly Knorr was an

"associate" of the 29th Street Crips who was in a dating relationship with Kidd. Her gang name was "Lady Five."

In January 2007, Destiny Doe and Knorr were living at the residence of Nate E. in Sacramento. Doe worked as an assistant

preschool teacher while also moonlighting as a prostitute for Nates "escort" service. Knorr also worked for Nate. While

they lived together, Knorr often bragged to Doe about things she and her "Crip homies" did together. On the evening of January 22, 2007, Doe and Knorr were returning home in Does car when Doe received a call from Nate telling her Knorr had been kicked out of the residence and not to bring her to Nates house. Doe dropped Knorr off at a gas

station on the corner of Fruitridge and Franklin Boulevard. Knorrs sister, B.K., was dating Tyler at around this time and, on the evening of January 22, was with him at the home of A.S., who was Merritts mother and was known by the gang name of

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"Mama Solo."

Also present were A.S., Griffin, Kidd, Merritt,

and Merritts brother, L.M., who is known as "Baby Solo." After Knorr was dropped off, she called B.K. and told her she had argued with Nate and was moving out of his residence. Knorr said she had been dropped off by Doe and needed a ride to pick up her things. Tyler drove to Knorrs location and brought

her back to the A.S. residence. When Knorr arrived, she was upset and said Nate had insulted the gang. In particular, Knorr told them Nate had Theyre not no 29th

said, "fuck them--fuck Smash and them. Street Garden Block Crips." for the 29th Street Crips.

Garden Block Crips is another name

The others in the room jumped up and "started talking shit to one another about--about it." lets go smoke him." Tyler said, "fuck that nigga,

In gang culture, to "smoke" means to kill. Tyler, Kidd, Griffin,

Tyler also said they should rob Nate.

Knorr, Merritt and L.M. departed in two cars, a white and a blue Buick. Meanwhile, Doe had returned to Nates residence and was resting in her room. Nate was also present. Later, Doe heard a

disturbance in front of the residence caused by a prior girlfriend of Nate named Mia. When Doe first moved into the

house, Knorr and Mia were also living there, but Mia had since moved out. On this evening, Mia was banging on the window and Doe got

trying to get Nate to come outside and talk with her.

up and moved to what had been Knorrs bedroom, which was toward the back of the residence. She fell asleep on Knorrs bed. 4

Some time later, Doe awoke and saw a silhouette outside the bedroom window. She then saw four or five people wearing They pointed Doe was held at

bandanas enter the bedroom through the window. guns at her and told her not to say anything.

gunpoint while others searched the residence for Nate, who had fled upon seeing what was happening. Doe was told to get Meanwhile, the

dressed and was taken into the living room.

intruders took off their bandanas and rummaged through the house looking for things to steal. Doe heard the names Smash and Five

mentioned and saw the intruders put clothes and a stereo inside a sheet which they later took with them. When the intruders departed, they took Doe as well. She

got into the blue Buick with three of them, and they followed the white Buick away from the scene. Doe later identified the

three in the car with her as the one called Five along with Griffin and Merritt. They all stopped at an apartment complex on 29th Street that had been the birthplace of the gang. Tyler took Doe aside

and said to her that "youre with us now and Ill take care of you, and why dont you work for me?" They later got back in the

cars and drove away, telling Doe they are the "mob" and this is the "mob life" and "youre with the mob now." They eventually arrived at the home of A.S., where Doe was taken inside. She saw Knorr, B.K., A.S., another woman and a Doe

young boy, as well as the others from the home invasion.

was taken to a bedroom, where Tyler, Kidd and Griffin talked about "running a train" on her and forcing her to perform oral 5

sex.

Tyler yelled at Doe, "youre gonna suck up all my homies,"

and Kidd and Merritt ordered her to orally copulate "Little Homie." Merritt further said, "give my little homie some head, Tyler told Doe she was going to go out and

youre a ho anyway."

start making money for him. Doe was eventually told she had to orally copulate L.M. and was left alone in the room with him. She did as directed and, Tyler then came in

after eight minutes or so, L.M. departed.

the room and forced Doe to orally copulate him as well. Later that evening, Doe was again placed in the white Buick and departed with Tyler, Kidd, Griffin, and Knorr. It is Kidd and

unclear whether Merritt accompanied them on this trip. Griffin were both armed with handguns.

Before leaving, B.K.

overheard Kidd and Tyler say, "If somethin is gonna be done, the bitch has gotta be iced." She also heard Tyler say

something to A.S. like, "we brought the bitch here so she couldnt tell." After stopping at another residence for 15 or 20 minutes, they drove to an area near railroad tracks and an empty field. Doe was told to get out of the car and to start walking through the field. She did as directed. After a while, Doe started

hearing gunshots.

She began walking faster and then running and She also saw bullets hit the ground

continued to hear gunshots. around her.

One of the shots hit Doe in the back just below the

shoulder blade. Doe ran toward the light of a house and eventually reached the house, where she yelled for help. 6 A man came outside, saw

Doe and carried her onto the porch.

He called 9-1-1 for help.

Doe told the man the 29th Street Crips had shot her. According to the prosecutions gang expert, all of the foregoing actions of the defendants were for the benefit of the 29th Street Crips. On February 3, 2007, police officers contacted Tyler and Merritt in a hotel room. the room. They found a handgun and ammunition in

On February 13, police officers found Griffin in a On February 28,

residence along with a gun and ammunition.

police officers discovered Kidd in a residence with a handgun and ammunition. All five defendants were charged with robbery in concert, burglary, aggravated kidnapping, conspiracy to commit murder, and attempted murder. On each offense, they were further

charged with enhancements for firearm use and committing the offenses for the benefit of a criminal street gang. They were

also charged with a separate offense for active participation in a criminal street gang. Tyler and Merritt were additionally charged with two counts of oral copulation in concert along with street gang enhancements. Tyler and Kidd were charged with unlawful Kidd was also charged

possession of a firearm and ammunition.

with battery of the mother of his child stemming from a separate incident. However, that charge was later dismissed.

The case was tried to two juries, one for Kidd alone and the other for the remaining defendants. After his arrest, Kidd

had been interviewed by police, and the videotape of that 7

interview was played to his jury alone.

In that interview, Kidd However, he

first denied any involvement in the matter.

eventually admitted he went to Nates house, but only to steal something and not to kidnap or shoot anyone. kidnapping or shooting anyone. He denied

He also denied having a gun and

claimed that he departed with Knorr before the others came out of the house and did not know Doe had been taken with them. denied accompanying the others to the home of A.S. Tyler was the only defendant to testify at trial. He He

acknowledged that he went with Knorr to Nates residence that night, but claimed he went there only to allow Knorr to pick up her things. Tyler claimed he waited in the car while Knorr went

inside and that Doe came out with Knorr and departed with them voluntarily. Tyler asserted that, when they left, Doe asked to

be taken to a school where she met up with some of her "homeboys." Doe got out and spoke with four men. Tyler

overheard her say "fuck Nate" and told the guys they could go to his house and take whatever they wanted because she left the front door unlocked. Tyler then drove them to the residence of Later, Tyler took Doe to According to Tyler,

A.S. and hung out there for a while.

meet up with a "date" she had that evening. that was the last time he saw Doe.

Tyler, Griffin and Kidd were convicted on all charges, and all enhancements were found true. Knorr was found not guilty of aggravated kidnapping but guilty of the lesser offense of simple kidnapping. acquitted of attempted murder. She was also

The jury was unable to reach a 8

verdict on the charge of conspiracy to commit murder, and the court declared a mistrial on that charge. Knorr was convicted

on all other charges and all other enhancements were found true. The People later dismissed the conspiracy charge. Merritt too was acquitted of attempted murder. The jury

was not able to reach a verdict on one count of oral copulation, for which a mistrial was declared. Merritt was convicted on all The

other charges and all other enhancements were found true.

People later dismissed the oral copulation charge on which the jury could not reach a verdict. Tyler was sentenced on the burglary charge to the upper term of six years plus 10 years and one year respectively for the gang and firearm use enhancements. On the two oral

copulation counts, he received full consecutive terms of seven years, plus 10-year gang enhancements. substantive gang offense was stayed. Sentence on the Tyler received a one-third

middle term of eight months on the firearm possession count and the same sentence on the ammunition count, with the latter stayed. He also received sentences of two years eight months, Finally, Tyler received

and one year on two unrelated charges.

an indeterminate term of 25 years to life plus an enhancement of 25 years to life for conspiracy to commit murder, a consecutive term of 15 years to life for aggravated kidnapping, and indeterminate terms for robbery in concert and attempted murder, with the latter two stayed. In all, Tyler was sentenced to 55

years four months, plus 65 years to life.

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Griffin was sentenced on the burglary count to the upper term of six years, plus 10 years for the gang enhancement and one year for the firearm enhancement. On an unrelated attempted

murder charge on which he had been convicted earlier, Griffin received a consecutive, one-third middle term of two years four months, plus four months for firearm use. On the separate gang

charge, Griffin received a one-third middle term of eight months, stayed pursuant to section 654. For conspiracy to

commit murder, Griffin received an indeterminate term of 25 years to life, plus a separate term of 25 years to life for the firearm enhancement. On the aggravated kidnapping charge,

Griffin received a consecutive, indeterminate term of 15 years to life. Finally, on the charges of attempted murder and

robbery in concert, Griffin received further indeterminate terms that were stayed pursuant to section 654. The total sentence

imposed on Griffin was 19 years 8 months, plus 65 years to life. Kidd was sentenced on the conspiracy to commit murder charge to an indeterminate term of 25 years to life, plus a consecutive enhancement of 25 years to life for the firearm use. On the aggravated kidnapping charge, he received a consecutive, indeterminate term of 15 years to life, with a 10-year enhancement for firearm use. On the robbery in concert charge,

the court imposed but stayed an indeterminate term of 15 years to life. On the attempted murder, the court imposed an

indeterminate term of 15 years to life plus an enhancement of 25 years to life for firearm use, but stayed these terms as well. On the burglary charge, the court imposed a one-third middle 10

term of one year four months, with gang and firearm enhancements of two years. On the firearm possession charge, Kidd received a On the gang

consecutive, one-third middle term of eight months.

charge and possession of ammunition charge, he received stayed, one-third middle terms of eight months. The total sentence

imposed on Kidd was four years plus 75 years to life. Knorr was sentenced on the burglary count to the middle term of four years, plus 10 years and one year respectively for the gang and firearm use enhancements. For simple kidnapping,

she received a consecutive one-third middle term of one year eight months, plus three years four months for the firearm use enhancement. Sentence on the separate gang charge was stayed.

On the robbery in concert count, Knorr received an indeterminate term of 15 years to life, for a total sentence of 20 years plus 15 years to life. Merritt was sentenced on the burglary count to the middle term of four years, plus 10 years and one year respectively for the gang and firearm use enhancements. On the one charge of

oral copulation in concert, she received a full consecutive term of five years plus a 10-year gang enhancement. stayed on the separate gang charge. Sentence was

On the robbery in concert

charge, Merritt received a consecutive, indeterminate term of 15 years to life. She also received an indeterminate term of 25

years to life for conspiracy to commit murder, plus an enhancement of 25 years to life for the firearm use. sentence on the kidnapping charge was stayed. Finally,

The total

sentence imposed on Merritt was 30 years plus 65 years to life. 11

All five defendants appeal.

DISCUSSION
Each defendant has filed a brief raising various arguments, only a few of which overlap. Nevertheless, each defendant has We shall address

joined in all arguments raised by the others. the arguments of each defendant in turn.

While we identify each

argument as that of the party raising it, we acknowledge the joinder of the others. I Kimberly Knorr Knorr raises the following contentions on appeal: (1)

there is insufficient evidence she participated in the robbery; (2) she received inadequate notice of the nature of the robbery charge; (3) because Knorr was a resident of Nates house, she cannot be convicted of burglarizing her own home; (4) there is insufficient evidence of kidnapping; (5) there is insufficient evidence supporting the gang conviction and enhancements; (6) the sentence on the burglary count must be stayed; (7) the trial court erred in excluding testimony from B.K. regarding Knorrs state of mind; and (8) Knorr was denied due process when she was handcuffed in front of the jury. contention only. A Sufficiency of the Evidence--Robbery Knorr contends there is insufficient evidence under either an aider and abettor or conspiracy theory to support her 12 We find merit in the first

conviction for robbery.

According to Knorr, there is no

evidence she intended that the others rob either Doe or Nate. On the contrary, she argues, "[w]hen someone suggested that they rob Nate, [Knorr] said no, she just wanted to get her stuff." Knorr argues her presence at the scene, without more, is insufficient to convict her as an aider and abettor. As for

conspiracy, Knorr argues there is no evidence that she agreed with the others to commit a robbery. In reviewing the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the prosecution and determine if a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) In making

this determination, we consider the record as a whole, not isolated bits of evidence. 557, 577-578.) (People v. Johnson (1980) 26 Cal.3d

Reversal on the basis of insufficient evidence

is not warranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." 755.) The People disagree there is insufficient evidence to support the robbery conviction. According to the People, Knorr (People v. Redmond (1969) 71 Cal.2d 745,

was angry at Nate and told the others Nate had disrespected the gang. She also told them Nate had a Mercedes SUV in his garage.

When the defendants left for Nates residence, some were armed, and it is reasonable to infer Knorr knew it. Knorr led the

others to the residence in order "to get Nate and her 13

belongings."

According to the People:

"It is reasonable to

infer that Knorr agreed with going to Nates house, doing a home invasion, and robbing Nate. back. She did not just want her clothes

She was upset at being kicked out and at having her gang, Like

which included her boyfriend Kidd (`Five'), disrespected. everyone, she went back to Nates seeking revenge.

She knew her

group would take whatever valuables they could find, and she knew that [Doe] and Nate would likely be in the house." According to the People, "[f]rom this evidence and reasonable inferences, the jury could reasonably conclude that Knorr intended to facilitate the home invasion and robbery of [Doe]." We have difficulty following the Peoples leap of logic. Knorr and the others were charged with the robbery of Doe, not Nate. The People argue that, because there is evidence

suggesting Knorr intended that the others rob Nate, she also intended that they rob Doe. But there is no evidence Knorr was She did not inform She did not

angry at Doe or sought revenge against her.

the others that Doe had disrespected the gang.

mention that Doe had a Mercedes at the residence. The People argue that, "[s]ince the invaders asked [Doe] about specific items, they most likely got that information from Knorr who had lived there." However, the only items the

intruders asked Doe about were the location of a safe, the money and the keys to Nates truck. There is no reason to believe any The People further

of these items were the property of Doe.

argue defendants brought two cars "to carry everyone and the

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loot."

Again, however, there is nothing to suggest the

anticipated loot was that of Doe. Knorr did not enter the residence and therefore was not involved in the actions of the others in taking items belonging to Doe. There is no evidence in this record from which it may

be inferred Knorr conspired with the others in advance to rob Doe. As for Knorrs liability under an aider and abettor theory, such liability requires proof the defendant acted "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (1984) 35 Cal.3d 547, 560.) (People v. Beeman

In this instance, there is no

evidence Knorr intended that the others rob Doe, as opposed to Nate, and the jury was not instructed on a theory of natural and probable consequences, i.e., that Knorr could be convicted of robbing Doe if this was a natural and probable consequence of the home invasion. On the record before us, we agree there is no substantial evidence to support Knorrs conviction for the robbery of Doe. And since Knorr was not charged with robbing Nate, her robbery conviction must be reversed. B Due Process--Robbery Charge Knorr contends she did not receive adequate notice of the robbery charge because, while the charge itself alleged robbery

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of Doe, the prosecution argued robbery of Nate, and the verdict form did not identify the victim. Hence, she argues, the jury

may well have convicted her on the robbery count on a finding that she aided and abetted or conspired in the robbery of Nate, not Doe, in violation of her due process rights. However,

having concluded Knorrs conviction for robbery must be reversed, this contention is moot. C Sufficiency of the Evidence--Burglary Knorr contends her burglary conviction must be reversed for two reasons. First, she argues she retained a possessory

interest in Nates residence and, therefore, cannot be guilty of burglarizing her own residence. She further argues the evidence

is undisputed that her intention in going to Nates residence was to retrieve her own property, not to commit any crime. reject both arguments. In People v. Gauze (1975) 15 Cal.3d 709, our Supreme Court held that one cannot be guilty of burglarizing his or her own home. According to the court, burglary is "an entry which We

invades a possessory right in a building" and "must be committed by a person who has no right to be in the building." p. 714.) (Id. at

In People v. Salemme (1992) 2 Cal.App.4th 775, this

court expanded on Gauze in concluding that "a person who enters a structure enumerated in section 459 with the intent to commit a felony is guilty of burglary except when he or she (1) has an unconditional possessory right to enter as the occupant of that

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structure or (2) is invited in by the occupant who knows of and endorses the felonious intent." added.) (Id. at p. 781, second italics

Thus, in People v. Smith (2006) 142 Cal.App.4th 923,

the defendant husbands burglary conviction was upheld where he broke into the family residence with felonious intent sometime after his wife had obtained a restraining order removing him from the home. (Id. at pp. 927, 931.)

In this instance, the evidence before the jury was that, prior to the entry by Tyler and the others, Nate had kicked Knorr out of his residence. There was no evidence that Knorr Thus,

had any ownership or leasehold interest in the residence.

even though some of her belongings remained inside, Knorr did not have an unconditional possessory right to the premises. Knorr argues there is insufficient evidence she shared the others criminal intent when they entered the residence. According to Knorr, "[i]t has been the law for more than a century that the mere fact one person is with another who enters a dwelling house and steals therefrom, and sees the other steal without interference on his part to prevent it, does not render him guilty of the crime . . . ." Knorr cites as support People

v. Ah Ping (1865) 27 Cal. 489 (Ah Ping), where Ah You and Ah Ping were seen entering anothers cabin and putting items of food into two sacks, after which Ah You alone carried them off. At the trial of Ah Ping, Au You testified that he alone committed the crime and that Ah Ping was an innocent stranger whom he had met earlier. (Id. at pp. 489-490.) Ah Ping was (Id.

convicted, but the Supreme Court reversed the conviction. 17

at pp. 490-491.)

The court explained:

"The appellant may have

been in the house with one who was, himself, there, with felonious intent; he may have seen the latter in the act of committing a felony and have made no attempt to interfere, and still be entirely innocent. These facts, if found, would not

necessarily have established the defendants guilt . . . ." (Id. at p. 491.) Knorr argues, she "was not even in the house with the perpetrators of the crimes therein, and thus even more removed than Ah Ping. She was sitting in her sisters white Buick some She had rejected [Tylers] idea

distance away from the house.

to go there to smoke and rob Nate, which was the only evidence offered to prove that [Knorr] acted as an aider and abettor, and with criminal intent. Without more, it is sheer speculation to

believe that [Knorr] intended to commit burglary, or any other crime. The evidence showed only that she wanted to go there in

order to get her belongings--as Nate had said she should. [Citation.] Analogizing to Ah Ping, she was in the position of

Mr. Ping watching while Ah You carried off the goods." Knorrs reliance on Ah Ping is misplaced. The issue there

was not, as here, whether there was sufficient evidence to convict Ah Ping of burglary. Clearly there was. In Ah Ping,

the jury had been instructed that if the evidence showed the defendant "was with the one who did steal as charged" and "saw him steal without interference on [the] defendants part to prevent it," then the defendant had the burden of proving his innocence. (Ah Ping, supra, 27 Cal. at p. 490.) 18 The high court

reversed the conviction because of this clearly erroneous instruction that placed the burden on the defendant to prove his innocence. In the present matter, the issue is the sufficiency of the evidence. While Knorr may not have shared the intent of the

others to rob Doe, there is sufficient evidence to support a jury finding that she shared their intent to commit either robbery or murder, or both, against Nate. Knorrs claim that

her only intent in going to Nates residence was to retrieve her property is belied by the fact that, when the intruders arrived at the residence, Knorr did not accompany them inside to point out her belongings, and by the fact that the others did not simply knock at the front door to gain entry but chose instead to sneak in through a window. Knorr relies on her sisters

testimony that Knorr told the others before they departed for Nates residence that she did not want to rob anyone but just wanted to get her own things. However, the jury was free to

reject this testimony on the basis of bias. We conclude substantial evidence supports Knorrs burglary conviction. D Sufficiency of the Evidence--Kidnapping Knorr contends there is insufficient evidence to support her conviction for kidnapping. Knorr argues there is no

evidence she knew Doe would be in her bedroom that night or that the others would kidnap her.

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But even assuming Knorr had no reason to believe Doe would be in the residence or that the others would kidnap her, it may nevertheless be inferred she saw the others bring Doe out of the residence with them when they departed. Her continued

participation with them, first by leading them to the apartment complex on 29th Street and then to the home of A.S., and then accompanying the others to the field where they attempted to kill Doe, makes Knorr liable as an aider and abettor of the kidnapping. Knorrs intent to aid and abet the kidnapping need not precede the initial movement against the victims will. "[T]he

crime of kidnapping continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety . . . ." Cal.4th 1044, 1159.) (People v. Barnett (1998) 17

In order to be guilty as an aider and

abettor of the kidnapping, Knorr need not assist the entire kidnapping. will suffice. Assistance given during any portion of the offense So while Knorr may not have intended that Doe be

taken from the residence, she fully participated in the kidnapping thereafter. Her kidnapping conviction is therefore

supported by substantial evidence. E Sufficiency of the Evidence--Gang Participation Knorr challenges her conviction under section 186.22, subdivision (a), which makes it a crime to knowingly and actively participate in a criminal street gang.

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Section 186.22 defines "criminal street gang" as "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." (

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