Opinion
G053756
11-14-2017
In re A.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.C., Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on November 14, 2017, be modified as follows:
In the caption and the listing of counsel on page 1, the word "Defendant" is changed to "Minor."
In the second and third paragraphs on pages 7 and 8, and in the second paragraph on page 9, the word "jury" is changed to "court."
This modification does not change the judgment.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.
NOT TO BE PUBLISHED I OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DL050854-001) OPINION Appeal from an order of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
After a contested jurisdiction hearing the juvenile court sustained a petition alleging A.C. (minor) committed gang-related felony vandalism, for the benefit of a criminal street gang. (Pen Code, §§ 186.22, subd. (d), 594, subds. (a), (b)(1).) The court declared minor a ward and placed him on supervised probation.
On appeal, minor asks us to review for error the sealed records of an in camera hearing the court conducted on his motion for disclosure of a confidential informant's identity. The Attorney General does not object. We reviewed the sealed records. Nothing suggests there are any issues to be briefed and we find no error.
Minor contends the court erred by admitting hearsay through the gang experts in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and the Sixth Amendment to the United States Constitution. The Attorney General primarily argues no hearsay evidence was improperly admitted. We perceive no reversible error and affirm.
FACTS
In February 2016, while patrolling near minor's residence, Tustin Police Department Detectives Diego Gomez and Ronald Sandoval observed graffiti on a wall. Someone had used orange spray paint to cross out "S.B.K." and writen next to it "LCTS X3," an acronym associated with the Locotes criminal street gang. The paint was wet and dripping.
Sandoval saw minor about eight car lengths away. Upon contacting minor, Sandoval noticed orange paint on his fingers and arm, as well as orange specks on his black tennis shoes.
This was not minor's first contact with Gomez regarding graffiti. In April 2015, minor admitted to Gomez that he had crossed out rival gang graffiti and tagged it with the letters "LCTS" for Locotes. Minor claimed the rival gang graffiti had been affixed as a personal affront to him, so he crossed it out. Minor explained that if your gang's graffiti is crossed out, it shows weakness; but if your gang crosses out a rival gang's graffiti, it shows strength.
Gomez and Sandoval both testified at the jurisdiction hearing. Gomez was a detective in the gang unit. Gomez was familiar with the Locotes and F.T.L. (Fuck the Law) street gangs from prior investigations. He had spoken with Locotes and F.T.L. gang members and their families, conducted field interviews, and reviewed field interview (FI) cards and Street Terrorism Enforcement and Protection Act (STEP) notices. Gomez had also investigated Locotes crimes.
Gomez met minor during a probation search of his older brother, Jose C. at their residence, and has had "[o]ver a dozen" contacts with minor. Gomez opined Jose C., whose moniker is "Chico," was an active participant of F.T.L., which is a faction of Locotes. Gomez explained gang members' younger siblings often carry the same moniker with the word "small" or "little" added to it. According to Gomez, minor's moniker is "Lil' Chico" or "Lil' A[]."
Sandoval was also a detective in the gang unit. He learned about the Locotes gang by investigating crimes committed by its members, and speaking with its members and their assault victims, as well as other gang detectives. Sandoval also learned about the F.T.L. gang by talking with other gang detectives, parolees and probationers known to be members or associates of that gang.
Sandoval knew Locotes used the letters LCTS and LCTS X3 when committing graffiti. Locotes had about 15 to 20 members and its primary criminal activities included deadly weapons assault and illegal firearm possession. Gang members use graffiti to gain respect by showing the gang's active presence and by instilling fear and intimidation on citizens and rival gangs.
Sandoval opined Locotes was a criminal street gang. He based this opinion on the contacts he has had with Locotes and rival gang members, his review of court records, police reports, FI cards and STEP notices involving Locotes gang members, his own investigation into Locotes gang-related crimes, and his conversations with gang detectives, residents, victims and witnesses of such crimes.
Sandoval testified about three predicate offenses committed by Locotes gang members: Iran Alejandre, Miguel Sanchez, and Raymond Martinez. Sandoval personally knew Alejandre and had arrested him for unlawful gun possession. Court records (exhibit 13) showed Alejandre was convicted of unlawful gun possession for the benefit of Locotes in 2013. Sandoval opined Alejandre was an active participant in the gang at that time.
Sandoval did not personally know Sanchez or Martinez, but he knew of them from conversations with other Locotes members, and from reviewing police reports. Court records (exhibits 14 & 15) showed they had been convicted of possession of drugs for sale and robbery in 2014 and 2015, and these crimes had been committed for the benefit of the gang. Sandoval opined Sanchez and Martinez were active participants of Locotes.
Sandoval also personally knew minor from prior contacts. Sandoval had helped Gomez investigate the February 2016, graffiti incident. He saw the fresh orange graffiti, including the symbol "LCTS X3," and he saw minor with orange paint on his fingers, arm, and orange paint speckles on his shoes.
Sandoval issued minor a STEP notice in connection with the February 2016, graffiti offense. Minor verbally acknowledged that he understood the STEP notice but he refused to sign it. Sandoval also testified about two FI cards which Gomez had issued to minor on previous occasions. These FI cards documented that Gomez had talked to minor and advised him about the Locotes gang.
Sandoval opined the February 2016, graffiti offense was committed for the benefit of the Locotes gang.
Tustin Police Officer Luis Garcia testified he assisted with the February 2016, graffiti investigation too. He saw the rival gang's graffiti had been crossed out and replaced with LCTS. From prior investigations, he knew the two gangs were rivals, and he was familiar with the rival gang's graffiti.
DISCUSSION
1. Confidential Informant Disclosure
Two separate petitions charged minor with gang-related felony vandalism and other crimes. The first was filed in June 2015, and the second was filed in February 2016. In connection with the 2015 petition, minor sought to compel disclosure of the identity of a confidential informant. During the hearing the court went in camera with Gomez, and ordered those proceedings transcribed but sealed. At the conclusion of the hearing the court ordered the prosecutor to disclose the identity of the confidential informant. Then, at the request of the prosecutor, the court dismissed the gang-related felony vandalism charge in the 2015 petition. (Evid. Code, § 1042, subd. (d) [informant identity privilege - adverse finding - refusal to disclose].)
Minor asks us to review the sealed records of the in camera proceedings for error. (See People v. Collins (1986) 42 Cal.3d 378, 395.) Specifically, he asks us to determine (1) whether any potential issues need to be briefed, and (2) whether the court ordered the production of all relevant confidential informant evidence.
The Attorney General does not object, but notes an apparent lack of prejudice given that the 2015 vandalism count was dismissed after the prosecutor declined to disclose the identity of the informant, and the only other charge in the 2015 petition (brandishing an imitation firearm) was dismissed for lack of evidence.
We have reviewed the sealed records and nothing suggests there are any potential issues to be briefed. The court ordered production of all relevant and discoverable confidential informant evidence. Hence, we conclude the court did not err. 2. Gang Hearsay Evidence
Minor contends the court violated Sanchez by admitting case-specific testimonial hearsay through the testimony of Gomez and Sandoval. The Attorney General contends no such hearsay was improperly admitted, and any error was harmless anyway. For the most part, we agree with the Attorney General.
Before Sanchez, California law allowed an expert witness to explain to the jury the "matter" upon which he or she relied, even if that matter would have ordinarily been inadmissible. (Sanchez, supra, 63 Cal.4th at p. 679.) When that inadmissible matter was case-specific hearsay, the expert could relate it to the jury on the theory it was not being admitted for the truth of the matter asserted, but instead merely to explain the bases for the expert's opinion. (Id. at pp. 673, 684.)
After Sanchez, "this paradigm is no longer tenable." (Sanchez, supra, 63 Cal.4th at p. 679.) Sanchez explained: "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." (Id. at p. 684, fn. omitted.) Sanchez further noted that the admission of testimonial hearsay through an expert witness is also subject to the Sixth Amendment's confrontation clause, which may be violated, "unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. [Citations.]" (Id. at p. 680.)
Consequently, "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis." (Sanchez, supra, 63 Cal.4th at p. 680.) "The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford [v. Washington (2004) 541 U.S. 36] limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay." (Ibid.)
Sanchez discussed three types of evidence typically relied upon by gang experts to form the basis of their opinions: police reports, STEP notices, and FI cards. Police reports are testimonial hearsay because they relate "information gathered during an official investigation of a completed crime" and not "made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at p. 694.) STEP notices are testimonial because they are prepared primarily "to establish facts to be later used against [the defendant] or his companions at trial." (Id. at p. 696.) FI cards may also be testimonial hearsay, but only to the extent they are produced in an ongoing criminal investigation. (Id. at p. 697.)
Invoking these principles, minor contends the testimony of Gomez and Sandoval improperly related substantial case-specific testimonial hearsay to the jury. He notes Gomez testified Jose C. was an active participant in F.T.L., based in part on FI cards and STEP notices prepared by other officers. He observes Sandoval's testimony that Locotes was a criminal street gang was similarly based in part on hearsay and multiple hearsay. He argues: "Since Sandoval's knowledge of Locotes turned almost entirely on police reports, FI card[s], and STEP notices, and such documents are . . . testimonial hearsay, . . . the entirety of Sandoval's testimony required to show Locotes is a criminal street gang . . . [e.g. primary activities, predicate offenses, number of members, etc.] all turn on case-specific hearsay, which was testimonial."
We are not persuaded. It is true Gomez's testimony that Jose C. was an active participant in F.T.L. was based in part on his review of FI cards and STEP notices prepared by other officers. But Gomez's testimony was also based on his own personal knowledge, gained through probation searches of, and conversations with, Jose C. and his family members, including minor. More to the point, Gomez did not relate to the jury as true any case-specific facts asserted as hearsay statements contained in the FI cards or STEP notices. Instead, he simply told the jury, in general terms, that he had relied on the FI cards and STEP notices. This was permitted under Sanchez.
"Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. . . . There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception. [¶] What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at pp. 685-686.)
For most of the same reasons, we reject minor's challenge to Sandoval's testimony that Locotes was a criminal street gang. Much of Sandoval's testimony was also properly based on his own personal knowledge and experience. To the extent he relied on police reports or STEP notices prepared by other officers, he also did not relate to the jury as true any case-specific facts asserted therein as hearsay.
To the extent Sandoval related to the jury as true facts asserted in the predicate offense court records (exhibits 13, 14 & 15), no Sanchez problem appears. The court records themselves were hearsay, but they were properly admitted as business and official records. (Evid. Code, §§ 1271, 1280.) The statements attributed to Alejandre, Sanchez, and Martinez in the court records were a second layer of hearsay, but they were properly admitted as declarations against penal interest. (Evid. Code, § 1230.)
Minor concedes the court did not err by admitting the certified court records themselves into evidence. --------
Plus, the court records contained no case-specific facts within the meaning of Sanchez. As our Supreme Court explained, case-specific facts, "relate[] to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) Here, the court records had nothing to do with minor or the events surrounding the offenses being tried. They only concerned the prior convictions of Alejandre, Sanchez, and Martinez.
In any event, the court records were not testimonial. (See People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 [records "prepared to document acts and events relating to convictions and imprisonments" not testimonial]; accord People v. Moreno (2011) 192 Cal.App.4th 692, 710-711 [following Taulton and explaining certified court records are not prepared for the purpose of anticipated future criminal proceedings]; People v. Morris (2008) 166 Cal.App.4th 363, 373 [same].)
On the other hand, Sandoval's testimony about the statements in the FI cards was inadmissible under Sanchez. Two of the FI cards were prepared by Gomez, and one was prepared by Sandoval. All three contained statements to the effect that minor had been advised Locotes was a criminal street gang. Sandoval related these statements to the jury as true, apparently to show minor was warned and was on notice. Offered for this purpose, Sandoval's testimony about these FI card statements was hearsay, and no exception applied. Further, Sandoval's testimony about these statements was case-specific and testimonial, much like STEP notices.
Even so, the Attorney General argues Sandoval's testimony about the FI card statements was harmless error. We agree. Under Sanchez, if the expert's testimony violates the Evidence Code alone, we are to apply the reasonable probability of a more favorable result standard of review under People v. Watson (1956) 46 Cal.2d 818, 837. (Sanchez, supra, 63 Cal.4th at p. 698.) If the error also implicates a defendant's federal constitutional rights, we must apply the more rigorous harmless beyond a reasonable doubt standard under Chapman v. California (1967) 386 U.S. 18, 24. (Ibid.)
The FI card statements that minor had been advised Locotes was a criminal street gang were all unsurprising and unremarkable. Sandoval's testimony about them surely had nothing to do with the court's finding minor painted the LCTS X3 graffiti for the benefit of Locotes. Sandoval's expert opinion on this point is supported by other overwhelming and properly admitted evidence as set out above. Accordingly, Sandoval's testimony about the FI card statements was harmless beyond a reasonable doubt.
DISPOSITION
The disposition order is affirmed.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.