Opinion
A135721
04-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH BLACKNELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51108166)
Defendant Joseph Blacknell appealed from his conviction on 20 counts of criminal conduct arising from his association with a Richmond street gang. He challenged the sufficiency of the evidence and the admissibility of eyewitness, toolmark, and gang expert testimony. He asserted the trial court should have severed three of the counts related to a March 2009 killing from those related to a September 2009 crime spree. He also asserted his life sentence without parole, plus an additional 199 years eight months to life, was cruel and unusual, especially given that he was 18 years old at the time of the offenses. Except as to his conviction on count 22 (receipt of stolen property) and counts 3, 14, and 21 (street terrorism), we affirmed the judgment in an unpublished 2015 opinion.
The California Supreme Court granted review and deferred further action pending its decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). On issuing its opinion, the high court transferred the case back to us for reconsideration in light of that opinion. Thereafter, the parties submitted further briefing and we heard additional argument on the admission of gang-expert testimony and the impact of Sanchez.
We conclude that to the extent there may have been Sanchez error, it was not prejudicial under the Watson standard. We conclude there was no Crawford constitutional error, and, again, even if the single challenged statement that is potentially testimonial hearsay was erroneously allowed, it was harmless under the Chapman standard.
People v. Watson (1956) 46 Cal.2d 818 (Watson).
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Chapman v. California (1967) 386 U.S. 18 (Chapman).
After further briefing on the gang-expert testimony was completed, the parties submitted further supplemental briefing on whether the matter should be remanded for resentencing following the amendment of Penal Code section 12022.53, effective January 1, 2018 and which gives trial courts discretion to strike an otherwise mandatory enhancement. The People concede the amendment applies retroactively to defendant's sentence, but contend no remand is necessary. We disagree, and remand the matter to the trial court for resentencing to allow it to exercise its discretion to strike defendant's firearm enhancements should it wish to do so.
We therefore reach the same disposition, and affirm the judgment as to all but defendant's convictions on count 22 (receipt of stolen property), and counts 3, 14, and 21 (street terrorism).
In this opinion following transfer, we reconsider only the issues affected by Sanchez, as directed by the Supreme Court, and the issues raised in the supplemental briefing regarding resentencing under Penal Code sections 12022.5, subdivision (a) and 12022.53, subdivision (h). In all other respects, we adhere to the analysis set forth in our prior opinion filed on October 20, 2015.
PROCEDURAL BACKGROUND
In a single information, the Contra Costa County District Attorney charged defendant with 22 crimes arising from the March 10, 2009 killing of Marcus Russell and from a spree of mayhem, theft, and violence six months later, on September 13, 2009.
In connection with the murder charge (count 1-Pen. Code, § 187), the district attorney alleged enhancements based on defendant intentionally discharging a firearm (§ 12022.53) and committing the crime for the benefit of a street gang, the Easter Hill Boys (§ 186.22, subd. (b)(1)). The district attorney also alleged special circumstances that the murder was done from a motor vehicle (§ 190.2, subd. (a)(21)) and for the benefit of the Easter Hill Boys Gang (§ 190.2, subd. (a)(22)). In the two other counts related to the murder, defendant was charged with shooting at an occupied motor vehicle (count 2-§ 246), and street terrorism (count 3-§ 186.22, subd. (a)). Count 2 incorporated the same firearm and gang enhancements as the murder count.
All further statutory references are to the Penal Code unless otherwise indicated.
As for the September 13 crime spree, defendant was charged with an overarching conspiracy of murder, carjacking and assault (count 4-§ 182, subd. (a)(1)). In addition, he was charged with unlawfully driving or taking two automobiles, a Honda Odyssey and a Maxima (counts 5 & 18-Veh. Code, § 10851, subd. (a)); attempted murder of Elliot Lawson, Devonte Bernstine, Fred Buckley, and Buckley's 10-year-old niece. (counts 6-9-Pen. Code, §§ 187, 664); shooting at an occupied motor vehicle (count 10, § 246); two carjackings (counts 11 & 15-§ 215, subd. (a)); attempted premeditated murder of Lowell Thomas and Sharroy Moore (counts 12 & 13-§§ 187, 664); street terrorism (counts 14 & 21-§ 186.22, subd. (a)); second degree robbery of two individuals (counts 16 & 17-§§ 211, 212.5, subd. (c)); resisting an executive officer (count 19-§ 69); resisting arrest while brandishing a deadly weapon (count 20-§ 417.8); and receiving stolen property (count 22-§ 496, subd. (a)). Many of these charges were alleged with a criminal street gang enhancement or weapons enhancements.
A jury convicted defendant of all charges, except for two counts of attempted murder—those related to Elliot Lawson and Devonte Bernstine. For the charges related to the killing of Marcus Russell, the jury found true the gang allegations and that a firearm had been used in the crimes, but could not agree on whether defendant had personally used or discharged a firearm. As to the gang allegations in the other counts, the jury found them true.
FACTUAL BACKGROUND
Our factual summary here is drawn verbatim from our prior opinion (People v. Blacknell (Oct. 20, 2015, A135721) [nonpub. opn.]). Citation of our prior unpublished opinion is permitted by California Rules of Court, rule 8.1115(B)(1) "to explain the factual background of the case and not as legal authprty." (Pacific Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10.) We recount the challenged gang expert testimony in detail in the next section of this opinion.
March 2009
"Counts 1-3 concern the March 10, 2009, murder of Marcus Russell. On that day, Russell and a woman, Jamesha Thompson, were driving east on the 580 freeway, coming from a photo shoot in Richmond. Russell was a rapper, and Thompson had agreed to pose for a new album cover. They were in Russell's grandmother's burgundy Nissan, a car Russell was known to drive. Thompson, sitting in the front passenger's seat, saw a red van pull close on the driver's side. While talking to Russell, she saw a gun pointed out the van's window. Marcus noticed her expression and turned to look, and then the shooting began. Russell died from gunshot wounds. Thompson, though shot, survived.
"Immediately after the shooting, Thompson told police she saw two Black males, with complexions darker than hers, in the van but said she could not identify them, despite the police showing her photographs from MySpace of defendant and others. In a phone call with Russell's sister a few days later, however, Thompson said she could identify defendant as one of [the] people responsible. According to the sister, Thompson said 'it was [defendant].' According to Thompson, she did say it was defendant, but also noted the police and everybody were already on to him and the police had come by and tried to make her point him out. Russell's sister asked why Thompson was not coming forward herself, and Thompson said she was scared, and the conversation got heated. Indeed, Thompson fled the state fearing for her safety. It was not until 18 months later that police again reached out to Thompson and, after cajoling her in person and asking her to put herself in Russell's sister's shoes, persuaded her to name defendant and his friend, Scooter Do.
"Defendant was no stranger to Thompson. Thompson knew him from when she was 10 and was, for a year or two, a cheerleader for defendant's Junior Pee Wee football team. She had also met him, when about age 12 or 13, at a birthday party for one of her cousins with whom defendant was friends. At the party, she recognized defendant from football. She did not see defendant again until the shooting, when she had just turned 19. Thompson had also known Scooter Do as defendant's friend from Easter Hill in Richmond; she had met him five to 10 times while growing up.
"At first, Thompson told police only that she heard defendant was involved but she had not seen him. Then, later during the interview, Thompson named defendant and a man who goes by 'Scooter Do,' but did not say who was the shooter. Thompson testified at trial that, during this conversation with police, she 'felt about the same' about her level of certainty as to each. She thought she had seen both men in her nightmares about the crime, which she had after being shown photos of both by the police during initial interviews. When the police followed up a few days later by telephone, Thompson repeated she was sure about defendant, and that he was the shooter, but volunteered that, in the meantime, she had realized she was probably mistaken about Scooter Do, because she recalled he had been in jail at the time and really only remembered the other man having distinct dreadlocks that made him look like Scooter Do.
"At trial, Thompson said she had known all along defendant had shot her and Russell. Despite the mix up with Scooter Do, Thompson testified she was sure about defendant and nothing could change her mind on that point. He was the 'one right there, and I saw him.'
"After talking with police, Thompson felt better about her conscience, if not about her personal safety. At trial, she remained scared and broke down crying.
"Russell's sister testified Russell ran with the 'Backstreets,' got into fights and accumulated enemies, particularly from Easter Hill, but in recent years had devoted himself to his music and his daughter. His godfather also testified Russell was with the Backstreets. The prosecution's gang expert linked defendant with the Easter Hill Boys, a rival of the Backstreets. Defendant's MySpace pages suggested he was eager to avenge the death of his comrade Sean Melson, supposedly killed by a gang allied with Backstreets. During a police interview, defendant stated he was okay in Easter Hill, but would be shot if he went to Central Richmond.
"Just a few days before the shooting, Russell's friend saw him point out a red 'minivan' or 'family van' on three occasions, a van which made Russell scared and which his friend recognized as belonging to defendant's mother and being driven, at times, by defendant. The night before the shooting, Russell's mother saw a red minivan parked near Russell's grandmother's house, and watched it drive away without turning its lights on. She also identified the van as belonging to defendant's mom, who lived nearby. (The parties stipulated defendant's mother's van was not used in the shooting.)
"The shooting was reported about 4:05 p.m. and occurred near Bayview on interstate 580. Cell phone records for defendant's cell phone show it 'pinged' (or was likely nearest) a tower at 3:51 p.m. near the Richmond-San Rafael Bridge (about 8.6 miles from the shooting) and a tower at 4:06 p.m. near Emeryville."
September 2009
"We now turn to the crime spree six months later. The September 13 spree began bright and early when a blue Honda Odyssey minivan was stolen from the driveway of a home in Richmond before 6:00 a.m. that morning.
"Shots were fired around 8:45 a.m. at the Pullmans, a Richmond apartment complex. Devonte Berstine and Elliot Lawson were struck, but neither said where the shots came from. A woman living in the complex heard the shots and, while trying to get safely inside, saw a blue van drive out of the complex gate. A passenger was wearing a ski mask and black clothing. The woman had noticed the blue van earlier while taking a morning walk and found it peculiar, but she was not sure of its make or model.
"At around 11:00 a.m., Fred Buckley was shot several times while driving past 8th and Adeline Streets in Oakland. His [10-year-old niece] was in the car at the time. Police found 29 brass cartridge casings at the scene. Fred Buckley did not see any assailant and did not know why he was targeted. A security camera captured the shooting, however, and showed the perpetrators jumping out of a blue van.
"Later, around 1 p.m., Leonard Barnes drove his 2005 silver Chevy Malibu through the intersection of 8th and Wood. He turned left onto Wood and parked in front of a park. A Black man came up, stated he had a big gun, and demanded the car. Barnes gave it to him. He saw the gun (which looked like a .9-millimeter automatic pistol) and a black hoodie and blue jeans, but could not see the face of the man who took the car. He stated the carjacker and at least two other Black males had parked in a blue van directly behind his car. Barnes saw his car and the blue van drive off. He later told the police the van was a newer model blue Honda.
"The blue van that had been stolen earlier in the morning was found abandoned about five minutes from the site of the Barnes carjacking. Police reports suggest it was discovered in the afternoon of the 13th around 2:15 p.m., though the witness who found the car later testified to the morning of the 14th. The initial police report taken on the 13th and signed by the witness suggests that after the blue van had been ditched, a Black male walked up to and left in a newer model gray car. Police found two .9-millimeter casings in the van. When the van owners later recovered their vehicle, the back window was shattered and the back bumper, right-side door, and left back fender were damaged. They also found a third casing, which they turned over to police.
"At around 2:30 p.m. on the 13th, police learned of another shooting—this one near Harbor and Chanslor in Richmond. An officer found Lowell Thomas shot and in critical condition. Thomas and Sharroy Moore had been driving along in a purple Buick Riviera when gunmen opened fire on the vehicle, shooting Thomas, causing a collision, and causing glass to break, injuring Moore. A witness saw four men emerge from a silver or grey vehicle stopped alongside the purple Buick. To one unfamiliar with cars, the perpetrators' car 'looked like one of those Toyotas.' Three witnesses saw the men approach and shoot into the Buick. One had a MAC-10 submachine gun, one, who apparently did not shoot, carried a rifle-like weapon (one witness thought it was an AK47), and the others had guns characterized as pistols. All wore black hooded sweatshirts and masks. The victims ran from the car. Moore was chased into a house and the gunman, back in the car, fired more shots and then drove off.
"Around 3:15 p.m., Curlee Jones was talking to people in front of a store near 86th and International when the car he had been driving, a black Nissan Maxima owned by his girlfriend, Teresa McDonald, was stolen. He had told police that four Black males drove up in a gray or white car and took the Nissan from him at gunpoint. But during his trial testimony, he denied this, saying the car had simply been stolen out from under his nose without the use or threat of force. Jones's friend, Darren Armstrong, was waiting in the passenger seat of the Nissan while Jones was talking. Armstrong's trial testimony corroborates Jones's initial police report. Armstrong saw a white Chevy Malibu pull up (he was sure of his car knowledge) with four Black men, all wearing hoodies. Three got out. Two searched Jones for valuables and a third pointed a .45 at Armstrong and demanded everything he had. After Armstrong handed over his phone and some money, his assailant got into the Nissan's driver seat and commanded Armstrong, at gunpoint, to get out of the car. Armstrong complied, and the men left, taking both cars.
"Armstrong identified one of the assailants, the 'light-skinned' one, as defendant. He did so in open court during a pretrial hearing and at trial. He also had picked defendant out of a photographic lineup shortly after the incident. He had told a defense investigator, however, that he had no idea who carjacked him and had not really identified anyone in the lineup as a person involved—he just picked someone so he could go home. Armstrong stood by his identification at trial and claimed he lied to the defense investigator because he thought that would make the situation go away faster.
"Police investigating the taking of the Nissan Maxima entered the car into a stolen car registry at approximately 4:45 p.m.
"Around 9:30 p.m., police officer Matthew Andersen and his partner Campos were on duty in their police car near 23rd Street and Cutting Boulevard. They observed a black Nissan driving without headlights. They pulled the Nissan over and approached it on foot, at which point it sped off. The officers then returned to their car and gave chase. In short order, the Nissan got stuck on a road median and the officers saw four occupants, young Black men in hooded sweatshirts, get out and flee, two running in the direction the car had been heading, north, on 17th Street and two others running east, towards the side of the road and an apartment complex beyond. The officers followed those running north. Andersen shouted commands for the suspects to stop. Andersen nearly had the driver caught against a chain-linked fence, but he then heard shots fired and let the driver escape as he made sure he and his partner were safe.
"Meanwhile, two other police officers, Jensen and Palma, were nearby, had learned of the Nissan's evasive maneuvers, and came to provide backup. One suspect running east crossed the path of Jensen and Palma. The officers exited their patrol car and noticed the suspect was wielding a gun. They chased him to a residence, commanding him to drop his weapon, which he did not do. The suspect forced his way through a fence to a backyard and then leveled his firearm at Palma. The officers each fired shots in the direction of the suspects but stopped and stood firm when he entered the backyard under cloak of night. Palma had been closest to the suspect and illuminated him with a lamp attached to his weapon. It was as the suspect, illuminated, slunk through the fence opening that Palma recognized him, based on previous, substantial encounters, as defendant.
"Palma and Jensen waited for further assistance. Other officers established a perimeter around the residence and continued the search. A police dog tracked a scent from the backyard to the roof of a house a short distance away. Defendant was found on the roof. Later, after defendant was in custody, Jensen identified him as the person he had chased, based on general physical characteristics such as build and skin tone. An officer found a black mask in defendant's pocket, which Darren Armstrong testified he recognized as similar to the ones worn by the men who robbed him. Also, defendant had a cell phone belonging to Curlee Jones, and a phone belonging to Darren Armstrong was retrieved from the Nissan Maxima. Finally, four gunshot residue particles were found on defendant's hooded sweatshirt after 30 percent of it was sampled. The prosecution's and defendant's expert disagreed as to whether this finding was consistent with defendant firing the gun approximately 25 times the day of the crime spree.
"An officer recovered from the roof a .9-millimeter pistol and a 30-round magazine with over 20 rounds remaining. The gun had been stolen from its owner in Pleasant Hill two years before. The prosecution's ballistics expert, John Murdock, reviewed the gun and the markings on collected cartridges and opined the gun fired .9-millimeter cartridges found at the scenes of the shootings involving the Buckleys and involving Lowell Thomas and Sharroy Moore. He also concluded .9-millimeter cartridges collected from the blue Honda Odyssey van originated from a different gun, but a gun that, like the one found near defendant, was also used in the Buckley shooting." (People v. Blacknell, supra, A135721.)
DISCUSSION
A. The Gang-Related Enhancement Evidence
Apart from the three street terrorism convictions which we reversed in our 2015 opinion, the prosecution asserted and successfully proved a multitude of gang-related enhancements under section 186.22, subdivision (b)(1). To do so, the prosecution relied primarily on the testimony of Christopher Llamas, a gang detective with the Richmond Police Department special investigation section, who testified over the course of four days as an expert on Richmond gangs.
Section 186.22 prescribes additional punishment if an individual 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. . . ." (§ 186.22, subd. (b)(1).) " 'To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity.' [Citation.] 'A "pattern of criminal gang activity" is defined as gang members' individual or collective "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated "predicate offenses" during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.] The charged crime may serve as a predicate offense [citations], as can "evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member." ' " (People v. Ochoa (2017) 7 Cal.App.5th 575, 581 (Ochoa).)
Thus, " '[t]he enhancement . . . requires proof that the defendant commit a gang-related crime in the first prong—i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. [Citation.] There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members.' " (People v. Pettie (2017) 16 Cal.App.5th 23, 50-51 (Pettie), quoting People v. Albillar (2010) 51 Cal.4th 47, 67.)
Llamas testified to the background, alliances, territory and motivations of the Easter Hill Boys gang, his opinion that defendant was a member of that gang, predicate acts, and his opinion that the charged crimes were committed for the benefit of the gang.
Llamas testified gang members usually are affiliated with gangs based in the neighborhood where they grew up, or because of relatives in the gang. Llamas opined the Easter Hill Boys were a "criminal street gang as of the entire year of 2009," and believed there were about 30 active members of the gang during that time period. Llamas testified he had "known of the defendant's connection to Easter Hill" since 2005 or 2006, and opined defendant was "one of the most active and violent shooters that Easter Hill gang has had."
Llamas testified that "Beam Team" is a subset of the Easter Hill Boys, so named because the members have "laser beams on their pistols." Defendant's cell phone contained a picture of himself with the words "Beam Team."
Llamas testified about other gang alliances and rivalries. He explained the Easter Hill Boys were aligned with North Richmond (North) and the Oakland Ghost Town gangs. These allied gangs were in conflict with the Central, Deep C and Backstreets gangs, which were likewise aligned. Russell, the murder victim, was an "active participant" in the Backstreets.
Llamas testified about 22 MySpace profile pages, including defendant's, obtained with a search warrant. Each profile had "some type of link to Easter Hill." Llamas identified certain of those individuals as Easter Hill gang members, including defendant, Eric Welch, Timonte Cook, and Kianti Gix. Llamas identified numerous photos of defendant with other known Easter Hill gang members, throwing the gang hand sign for Easter Hill, holding an "AK-47 style assault weapon," and wearing a shirt referencing Shawny Bo and the dates of his birth and death. Llamas testified Eric Welch was a "convicted Easter Hill gang member . . . recently convicted of a gang enhancement with possession of a firearm," and that Cook (T Mac) was "very active in September 2009." Numerous MySpace pages included pictures of defendant identified by his gang moniker, "Fatter," also with other known Easter Hill gang members.
Llamas explained that Shawny Bo, the moniker for Easter Hill gang member Sean Melson, was killed in a gang-related shooting in September 2006, when he was 16 years old. Llamas testified "Easter Hill Boys blamed the death of Sean Melson on Central, and the Contra Costa County Sheriff's gang experts have also said that they think the death of Sean Melson was done by Deep C." Deep C is a subset of Central ("The C stands for the Central"). Llamas explained "the thing I have identified as being one of the biggest reasons for retaliatory murders between Easter Hill and Deep C is the death of . . . Shawny Bo." He opined that killings are often committed around the anniversary of Shawny Bo's death, in retaliation for the teen's murder. A secondary reason for killings was the general animosity between certain gangs: "because you're Central, I don't like you and I'm going to kill you."
Llamas also testified about the MySpace page of Shawny Bo, which still existed after his death as "a memorial site where persons from Easter Hill will throw comments on there regarding his death and how they're committing these acts of revenge basically because of his death." Llamas additionally testified about a message written by defendant on Shawny Bo's memorial page, in which he states " 'What's up, Bo? Nigga, you already know niggas still trippin' over you, but they thought it was over. Nah, it ain't. I miss you, nigga. Me and [Willie Mulder, known as Scooter Doo, an Easter Hill member] just left your grave. But nigga you still alive through me. I'm keeping it lit for you. Love you, Shawny Bo.' "
During Llamas's testimony, the court had defendant display his tattoos to the jury. He had a tattoo that said "Savage Life," as well as one that said " 'R.I.P. Shawny Bo' " and the dates June 26, 1990 to September 10, 2006. Llamas opined these tattoos "show[ed] allegiance, alliance to the gang," and that "one of the big purposes of [the Easter Hill Boys gang] is acts of retaliation based on the death of Sean Melson."
Llamas also testified about certain writings found in defendant's jail cell, which were admitted into evidence. He did not know if they were "rap lyrics or a poem or somebody's diary." One was entitled " 'Young Nigga Shit,' " and began " 'I'm a young nigga sittin' in da cell. [¶] Thinking about the times I done left a nigga head leaking. [¶] They keep bringing up all these crazy ass charges. [¶] . . . [¶] It crazy how niggas . . . giving tips to the rollers . . . about me smacking shit. [¶] . . . [¶] Ma, now I'm thinking about my brody bro, thinking about the times me and him used to go. Crazy in the rich, straight murkin shit. [¶] . . . [¶] That's why I still trippin' off Bo, bitch.' " The writing continued: " 'You all took Bo . . . but Imma come back and get a hundred mo. . . . [¶] . . . [¶] . . . [C]atch you in car and leave your brains on the window. [¶] A hundred round shell casings lying on the floor. [¶] Knocking heads for my little nigga Shawny Bo.' "
Llamas testified as to the meaning of certain words or phrases in the jail cell writings. " '[H]ead leaking' " refers to "an assault on somebody and their head is leaking fluids." " 'All these crazy ass charges' " referred to the fact that defendant's charges were "amended at least three times." " '[R]ollers' " means police, and " 'smacking shit' " means committing an assault. " 'Crazy in the rich' " refers to Richmond. "Murkin" means murder. " 'Still trippin' off Bo' " means "he's still tripping over the death of Shawny Bo." " 'Knocking heads for . . . Shawny Bo' " means "he's committing acts of violence for Sean Melson."
Llamas testified regarding predicate acts committed by defendant in July 2005 and October 2007. Records reflecting defendant's sustained juvenile petitions were admitted into evidence.
In closing argument, the prosecutor argued crimes reflected in two sustained juvenile petitions constituted the required predicate acts.
Llamas also testified to his opinion in response to hypothetical questions. The first hypothetical generally described the facts surrounding the murder of Marcus Russell, who was a Backstreet Boys gang member. Llamas opined "it is a gang-motivated murder . . . Backstreets territory, Backstreet Boys is aligned with Deep C and is a rival of Easter Hill Boys. It would be considered a trophy to Easter Hill Boys to murder" the hypothetical individual. The second hypothetical question generally described the events that occurred on September 13, 2009. Llamas opined the crimes committed that day, as described in the hypothetical question, were for the benefit of or in association with the Easter Hill Boys. He further opined that the September date was significant and strengthened his opinion that the crimes were committed for a gang motive, because it was close to the anniversary date of the death of the former gang member. He testified "Easter Hill Boys seek acts of revenge and retaliation regarding [Sean Melson's] death surrounding that time frame." The events of September 13, 2009 were "just a continuation of a crime spree . . . various vehicles that are carjacked were stolen, allowing these gang members to continue this crime spree. And the crime spree just wasn't over until somebody was captured." Llamas opined that "this kind of activity [is] consistent with the idea [of] 'keeping it lit' for Shawny Bo."
Kianti Gix, Sean Melson's half-brother, testified for the defense to refute Llamas's testimony and opinion about the Easter Hill Boys. He explained he was a college track star, not a gang member. He had never shot anyone, although he had been convicted of having of a concealed firearm. In Gix's view, the violence in Richmond is not "perpetrated by groups claiming specific territories," but by "random people that aren't gang related."
Gix and defendant were both part of a group of friends that included Eric Welch, Frank Potts, and Sean Melson. Gix explained the "Beam Team" was "a group of people" that "got labeled that" by police, "so we grooved on it." Gix acknowledged his MySpace page contained pictures of him pointing a fake gun, and stated "Sadam Hussain, president of what we claim, Beam Team. We are cut from the cloth real goons are made of EHB, two-five-six-nine, ta da Nolia, da belly of the beast. Home of da worst, Shawny Bo and Jader, hello, two-five." He explained he was "just talking," and this meant "we're real. We're real people." By describing Shawny Bo and Jader, who were both killed, as "da worst," Gix meant "that's what like the news and people depicted them as."
Gix, defendant, and their friends wrote "raps," which Gix acknowledged were sometimes violent, but were simply a method of communicating with friends. His own raps were sometimes based on lyrics of other rap artists, but he substituted personal references. The defense attorney read a "quote from [Gix's] Facebook page" and questioned him about it. The quote read: " 'Heart froze, body numb, mind ain't right, misunderstood as I stand. Corrupted is what they call my plan. Product of my environment. I ain't hidin' shit. I'm writin' bitch. Forever trippin' off that Shawny Bo shit. [¶] Broad day, no play. Dem choppa shells gonna make that body twitch. No mask, chasin' that ass with reversible clips screaming hello. Knocking chunks off you and them niggas. Fuckin' em if they whip you bitch. Let's 9s and 40s dip into these niggas' skin like you don't even know. EHB 25 six-nine, Bean Team militia on-line.' " Gix testified he "grew up in an environment where people were shot every day. I've been shot myself. I know how it feels, so I feel like I can talk about it." He explained "EHB" in his rap did not stand for Easter Hill Boys, but was a neighborhood reference to "Easter Hill Backstreets." The phrase "25 six-nine" was also a reference to his neighborhood, not to a gang. Gix testified that writing a rap about shooting someone does not mean you actually shot someone. B. The Challenged Portions of Llamas's Testimony
In his supplemental brief following transfer from the Supreme Court, defendant has challenged 14 discrete aspects of Llamas's testimony that he claims (a) were impermissible hearsay under Sanchez and (b) violated his Sixth Amendment right to confront witnesses under Crawford, supra, 541 U.S. 36.
1. Forfeiture
The Attorney General asserts defendant forfeited the bulk of his objections to Llamas's testimony by failing to make them during the 2012 trial. In the Attorney General's view, Sanchez, which was decided in 2016, "did not so much change the law as clarify longstanding evidentiary practices" and defendant should have anticipated this "clarifying perspective."
The November 2011 In Limine Motions
Defendant filed two in limine motions on November 28, 2011. One was to "exclude/limit gang expert opinion." Defendant specifically sought to exclude 12 aspects of Llamas's testimony on nonhearsay grounds, including that it was unscientific and unreliable (citing Kelly and other cases), unsupported by a sound evidentiary foundation (much of the foundational evidence was printed off the Internet), could not establish defendant's intent and could not insinuate guilt based on defendant fitting a certain "profile," and was irrelevant, misleading, time consuming, and more prejudicial than probative (citing Evid. Code, §§ 350 & 352). In other words, defendant made no hearsay objection to this evidence, let alone a confrontation clause objection.
The second motion in limine sought to exclude, among other things, evidence of any prior criminal acts or uncharged misconduct by defendant (citing Evid. Code, § 1101, subd. (a)), evidence of defendant's juvenile adjudications (citing Evid. Code, § 352), evidence of defendant's jail telephone calls (citing Evid. Code, §§ 350 & 352), and evidence of the murders of individuals referenced as " 'Bobo,' " Alfred Thomas, Kaneesha Mallard, Demario Lee, Tamar Anderson, and Sedric Gadson (again relying on Evid. Code, §§ 350 & 352).
At the hearing, it became clear the prosecution was going to use Llamas as the vehicle for evidence of these and other murders. The trial court held a section 402 hearing, at which the prosecution explained the testimony was relevant to show the "crime spiked" around the anniversary of Shawny Bo's death, which was relevant to gang motive. The court ruled Llamas's testimony would be limited to showing the activity of the Easter Hill gang, and he could not opine about defendant's involvement in the six murders. The trial court also acknowledged defendant's need to meaningfully cross-examine Llamas on these murders and ordered the prosecution to produce discovery ahead of trial, including information other officers told Llamas about the murders. If the prosecution withheld discovery on any given murder, Llamas would not be allowed to testify about it. The court granted the motion to exclude any evidence as to the murder of "BoBo."
The January 2012 In Limine Motion
After the prosecution produced the ordered discovery, defendant made a third in limine motion on January 9, 2012, seeking to keep Llamas from testifying about eight "uncharged homicides"—those of Reginald Collier, Deondrae Holden, Jewell Mayweather, Dwayne Moore, Demario Lee, Alfred Thomas, Kaneesha Mallard, and Sedric Gadson. (Notably, the Thomas, Mallard, Lee and Gadson murders had been among the murders identified in the earlier in limine motion based on Evid. Code, §§ 350 & 352 grounds.) Defendant objected that "the basis evidence . . . violates [defendant's] right [of] confrontation," citing to Crawford, supra, 541 U.S. 36 and the then-pending case of Williams v. Illinois (2012) 567 U.S. 50 (Williams), and other Sixth Amendment cases. Defendant claimed Llamas's testimony about these killings would constitute impermissible testimonial hearsay, and he objected to its use to establish the existence of the crimes, to link them to either defendant or the Easter Hill Boys gang, and as a basis for the conclusion defendant was actively participating in a criminal street gang.
At the hearing, the trial court largely denied the motion. The court excluded any opinion by Llamas, however, based on the interrogation of Dequan Brown, a person of interest in connection with these murders, concluding Brown's statements were unreliable hearsay.
Thus, there can be no doubt confrontation clause objections were preserved as to Llamas's testimony concerning the killings identified in the third in limine motion, namely the murders of Sedric Gadson, Demario Lee, Alfred Thomas, and Kaneesha Mallard.
Oral Objections
Defendant also objected orally, on grounds of hearsay, lack of foundation and speculation (but made no confrontation clause objection), to Llamas's testimony based on two other gang experts' knowledge—that Brian Jones was an Easter Hill gang member who was hired by a group called Project Trojans to sell drugs and make hits. In addition, defendant objected orally, on hearsay grounds (but, again, made no confrontation clause objection), to Llamas's testimony about defendant's juvenile record, specifically a 2005 charge and a 2007 charge of possession of a firearm by a minor. He also objected orally, on the bases of Evidence Code sections 352, 1101, subdivision (b) and relevance, to testimony about a 2009 incident in which defendant was loitering with other Easter Hill gang members and a police officer chased defendant and recovered a loaded pistol magazine. He objected to testimony about defendant's recorded jailhouse conversations on a hearsay basis. And, he objected to a question about what other murders occurred in Richmond around March 10, 2009, near the time of Marcus Russell's killing. The colloquy around this objection was held during an unreported sidebar, and there is no indication what the basis for the objection was.
These objections, to the extent made at least on hearsay grounds, arguably were sufficient to embrace the confrontation clause. (See People v. Loy (2011) 52 Cal.4th 46, 66 ["Defendant contends the error also violated his right to confront witnesses under the Sixth Amendment to the United States Constitution. Although he did not specifically invoke the federal Constitution at trial, he may raise this contention on appeal to the extent he argues that the erroneous overruling of the objection actually made also had the consequence of violating his federal confrontation rights."].)
No Objections
Llamas also testified at trial to a number of things without any objection, including: (1) Frank Potts was an Easter Hill gang member who was recognized and shot in rival territory; (2) gang member Eric Welch told Llamas, at an interview following an arrest for gun possession, Easter Hill was aligned with Ghost Town of Oakland; (3) Mainline gang member Roosevelt Poe told Llamas Easter Hill was good with Oakland; and (4) suspected gang member Kianti Gix was arrested in 2011 for possession of a firearm.
No Forfeiture in this Case
In our original opinion, we concluded defendant forfeited Crawford confrontation clause objections to the extent he made no hearsay objection at all, even on generic hearsay grounds. Defendant maintains we should revisit our prior, partial forfeiture conclusion because Sanchez was "a dramatic departure from prior law" and his failure to object to some of Llamas's testimony would have been futile.
"Though evidentiary challenges are usually waived unless timely raised in the trial court, this is not so when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change." (People v. Turner (1990) 50 Cal.3d 668, 703.) Additionally, an objection in the trial court is not required if it would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) Thus, after a trial court repeatedly overrules objections, counsel may reasonably conclude further objections would be futile. (See People v. Gray (2005) 37 Cal.4th 168, 207-208.)
The courts of appeal have taken varying views on the forfeiture of Sanchez hearsay objections and Crawford confrontation clause objections. (Compare, e.g., People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7 (Meraz) (rev. granted March 22, 2017, S239442) [confrontation clause objections not forfeited because "trial court was bound to follow pre-Sanchez decisions holding expert 'basis' evidence does not violate the confrontation clause"] and People v. Perez (2017) 16 Cal.App.5th 636, 645 (rev. and transfer with directions granted Feb. 28, 2018, S245612) [reaching opposite conclusion because pre-Sanchez cases "alerted competent and knowledgeable counsel to the need to object to such evidence on hearsay and Crawford grounds"].) In People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508, this Division concluded counsel could reasonably have concluded confrontation clause objections would have been futile. (Id. at p. 508 ["Even if defense counsel had interposed appropriate hearsay objections, the objections would undoubtedly have been resisted by the prosecution and overruled by the court. . . ."].)
A published opinion of which the California Supreme Court has granted review may be cited for persuasive, but not precedential, value. (Cal. Rules of Court, rule 8.1115(e)(1).)
Thus, even though it seems apparent that defense counsel was aware of the evolving law on the confrontation clause (given that counsel made a number of confrontation clause objections), we will follow our approach in Jeffrey G. and conclude Sanchez and Crawford objections would likely have been futile. 2. Summary of Sanchez
In Sanchez, the defendant was charged with, among other things, active participation in a criminal street gang, and the information additionally alleged an enhancement for committing a felony for the benefit of a gang. (Sanchez, supra, 63 Cal.4th at pp. 671, 698.) A gang expert testified about his experience and training; the practice of issuing "STEP notices" to gather information from, and impart warnings to, the associates of known gang members; preparation of field identification cards recording police contacts with individuals; gang culture in general, and the Delhi gang (of which Sanchez allegedly was a member) in particular; the way gangs operate; and the Delhi gang's territory, membership, modus operandi, and primary activities. (Id. at pp. 671-673.) A jury convicted the defendant as charged and found the gang enhancement true. (Id. at p. 673.)
The Supreme Court reversed as to the gang findings, holding that "the case-specific statements related by the prosecution expert concerning defendant's gang membership constituted inadmissible hearsay under California law. They were recited by the expert, who presented them as true statements of fact, without the requisite independent proof. Some of those hearsay statements were also testimonial and therefore should have been excluded under Crawford. The error was not harmless beyond a reasonable doubt." (Sanchez, supra, 63 Cal.4th at pp. 670-671.)
Thus, it is important to bear in mind that in Sanchez the high court addressed two, discrete issues—the state's hearsay rule, and the federal confrontation clause. (See Meraz, supra, 6 Cal.App.5th at p. 1170 [Sanchez held "case-specific out-of-court statements conveyed by the prosecution's gang expert constituted inadmissible hearsay under state law and, to the extent they were testimonial, ran afoul of Crawford."].)
With respect to the state hearsay rule, the Supreme Court drew a distinction between "an expert's testimony regarding his general knowledge in his field of expertise," and "case-specific facts about which the expert has no independent knowledge." (Sanchez, supra, 63 Cal.4th at p. 676, italics omitted.) The former is not barred by the hearsay rule, even if it is "technically hearsay," while the latter is barred. (Ibid.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge." (Ibid., italics added.)
The Supreme Court provided the following example: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Sanchez, supra, 63 Cal.4th at p. 677.)
With respect to the federal confrontation clause, the Supreme Court explained "[i]f a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations . . . are not satisfied, . . . [a]dmission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680, italics omitted.) "[S]tatements about a completed crime, made to an investigating officer by a nontestifying witness . . . unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial," are testimonial. (Id. at p. 694.)
Sanchez hearsay error is, thus, a matter of state evidentiary law and in that regard, prejudice is determined under the Watson standard, i.e., whether "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836; People v. Iraheta (2017) 14 Cal.App.5th 1228, 1248.) Crawford confrontational clause error, on the other hand, is a matter of federal constitutional dimension, and prejudice must be evaluated under the Chapman standard, i.e., whether the error was harmless beyond a reasonable doubt. (Sanchez, supra, 63 Cal.4th at pp. 698-699; Chapman, supra, 386 U.S. at p. 24.)
We now turn to the 14 instances of alleged Sanchez and Crawford error defendant has identified in his supplemental briefing. Defendant claims generally that "the gang expert's testimony here was based largely on information contained in other police officers' reports." This factual claim, however, is not supported by any of the record citations he provides. Furthermore, Llamas testified his job duties included not only looking at police reports "to see if the crime was in benefit of . . .[a] gang," but that he also obtained information from other sources, including "conduct[ing] [his] own undercover operations," doing "a lot of surveillance," spending over 2,000 hours patrolling in Richmond, speaking with other officers about gang issues in Richmond, "talk[ing] to other senior officers regarding the crime trends," and talking with gang members. Accordingly, it may well be that Llamas obtained the information he testified to through his own work and investigations. Thus, because defendant did not object on Sanchez or Crawford grounds to many of the statements he now challenges, one of the difficulties of the record before us is that Llamas was never asked about the source of or nature of the information to which he testified. (See People v. Huynh (2018) 19 Cal.App.5th 680, 698-699 (Huynh) [although defendant made general pretrial objections, record was not developed such that Court of Appeal could determine whether hearsay was testimonial]; Ochoa, supra, 7 Cal.App.5th at pp. 584, 586.)
However, after extensive review of the record and as we discuss in the next section of this opinion, we have ascertained there is only one arguable instance of Crawford error and that most of the testimony that allegedly violates Sanchez in fact does not do so because hearsay exceptions apply or independent evidence supports the challenged testimony. As for the very few instances of Llamas's challenged testimony that are problematic, we conclude it was not prejudicial under either Chapman or Watson.
3. Claimed Crawford Error
Only one of Llamas's 14 challenged statements is even arguably testimonial hearsay and thus potentially problematic under Crawford—specifically, Llamas's testimony that "Eric Welch has talked to me about the alliance between—generally between Oakland and [the] Easter Hill Boys. [¶] . . . [¶] Eric Welch was arrested . . . and I interviewed him." (See People v. Cage (2007) 40 Cal.4th 965, 978 [at a minimum the confrontation clause applies to " 'prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police interrogations, ' " which, under the facts of the case, included recorded statements by a witness in response to structured police questioning].)
However, there was no evidence that Llamas's interview of Welch actually had a " 'primary purpose pertain[ing] in some fashion to a criminal prosecution' " and, thus, actually was testimonial in character. (People v. Valadez (2013) 220 Cal.App.4th 16, 35.)
Even assuming, though, that this was testimonial hearsay, this one instance of Crawford error was harmless beyond a reasonable doubt. As we have recounted at length above, there was abundant other evidence about the relationship of the Easter Hill Boys and "Oakland," making this single instance of assumed Crawford error inconsequential in comparison. (See Huynh, supra, 19 Cal.App.5th at pp. 701-702 ; Ochoa, supra, 7 Cal.App.5th at pp. 586-588; Meraz, supra, 6 Cal.App.5th at pp. 1176-1177.)
4. Claimed Sanchez Error
Sanchez describes the inquiry as to whether gang expert testimony passes muster under state evidentiary law as follows: "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?" (Sanchez, supra, 63 Cal.4th at p. 680.) If the statement is hearsay that does not come within an exception, is it about "case-specific facts about which the expert has no independent knowledge." (Id. at p. 676, italics omitted.) If the hearsay expert has no independent knowledge, were the case-specific facts otherwise "independently proven by competent evidence." (Id. at p. 686.)
Hearsay Exceptions
Item 4: "There's a phone call where the defendant is talking to his mother. He tells his mother that CJ just got arrested, he says, caught for a carjacking and a chopper. And that he was with Dirt and Quan."
This testimony was about the substance of a jail telephone call between defendant and his mother and was made by Llamas while discussing his opinion that there was an alliance between the Easter Hill Boys and Ghost Town, an Oakland gang. Llamas explained "CJ" was the "gang moniker for Cornell Jackson," an Easter Hill gang member, and that he had spoken with Detective Valle of Oakland, who told him Dirt was a Ghost Town gang member and Quan was "an associate of his."
Although defendant's statements to his mother were hearsay, they were admissible as party admissions. "Evidence Code section 1220 makes a 'statement' of a party an exception to the general rule forbidding hearsay evidence when the statement is offered against that party." (People v. Rodriguez (2014) 58 Cal.4th 587, 637.) "Although Evidence Code section 1220's exception to the hearsay rule is sometimes referred to as an exception for admissions, the exception is not so limited. [Citation.] Instead, the exception applies to all statements of the party against whom they are offered." (Ibid.)
Additionally, defendant's mother testified (without objection) that during a conversation with her son, "He just said that CJ came in and got arrested with a choppa." Accordingly, the information about CJ getting arrested with a "choppa" was also independently proven. Detective Valle, in turn, testified (without objection) as a West Oakland gang expert that Dirt and Quan were members of Ghost Town, an Oakland gang, and he also opined there was a tie between Ghost Town and Richmond. He further testified that a funeral announcement for a Ghost Town gang member was found in defendant's jail cell, and that pictures of a Ghost Town gang member were on defendant's phone. Accordingly, these aspects of Llamas's testimony were also independently proven.
Because a hearsay exception applies and because there was independent evidence, there was no Sanchez error in connection with this testimony by Llamas. (See Sanchez, supra, 63 Cal.4th at pp. 680, 686.)
Item 8: "There's also a discussion regarding a Hayward shooting. And this is on September 19th, 2009. There was a shootout between North Richmond and Deep C gang members. Five North Richmond members and four Deep C members were in a shooting at broad daylight at a mall in Hayward. Hayward P.D. responded and ended up shooting one of the Deep C gang members. Everyone was arrested and two firearms were recovered. [¶] That was a topic that Mr. Blacknell discussed with his mother."
This testimony by Llamas was about a "three-way" jailhouse telephone call defendant had with his mother and a known gang member, in which they discussed a September 2009 "shootout between North Richmond members and four Deep C members . . . at a mall in Hayward." Like defendant's other jailhouse telephone conversation, this hearsay was admissible as a party admission, and therefore there was no Sanchez error in admitting it. (Sanchez, supra, 63 Cal.4th at p. 680.)
Independently Proven
Item 3: "Eric Welch has talked to me about the alliance between—generally between Oakland and Easter Hill Boys. [¶] . . . [¶] Eric Welch was arrested . . . and I interviewed him."
Item 5: "I had [a conversation] with the Mainline gang member Roosevelt Poe [who] also told me that Easter Hill . . . [is] good with Oakland."
What Welch and Poe told Llamas about an alliance between Easter Hill Boys and Oakland is clearly hearsay. However, these two conversations were not Llamas's sole source of information about an alliance between these two gangs. Llamas testified (without objection) that he learned this same information from Detective Valle. Valle, in turn, also testified (without objection) about the relationship of the two gangs.
Item 2: "We had an Easter Hill related murder approximately ten days ago [in 2012]. [¶] Frank Potts was an Easter Hill gang member that just entered into Deep C territory." "[H]e was recognized and shot and killed inside Deep C territory." "That's a picture. This is Frank Potts. This is the one that was killed approximately ten days ago."
Llamas testified regarding this murder to demonstrate the rivalry between Easter Hill and Deep C was "ongoing." It is unclear from Llamas's testimony how he learned of this murder, and, thus, whether the statement is hearsay at all. As a Richmond gang detective and expert, he may have had personal knowledge of it. In any case, there was an independent source of this information. Kianti Gix testified (in February 2012 and without objection), that he had heard "Mr. Potts was killed recently." And, there was other evidence Potts was an Easter Hill gang member.
Item 6: "July 6, 2005, the defendant was in a vehicle that was stopped by the Richmond Police Department with other juveniles in that van. The firearm was discarded from the van during the car stop and the defendant, Mr. Blacknell, was found guilty of that possession of a firearm."
The record also does not show the source of this testimony by Llamas. Thus, while it likely is hearsay, the record does not reveal that it, in fact, is hearsay. In any case, this information was also largely "independently proven by competent evidence," namely the records of the sustained juvenile charges against defendant. (Sanchez, supra, 63 Cal.4th at p. 686.) While these records were, themselves, hearsay, in People v. Duran (2002) 97 Cal.App.4th 1448, the court concluded "Evidence Code section 452.5, subdivision (b) creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred." (Id. at p. 1460.) Ochoa, decided after Sanchez, agreed that under Duran, "[i]t appears the record [of conviction] was admissible under Evidence Code section 452.5." (Ochoa, supra, 7 Cal.App.5th at p. 589, fn. 10.) Thus, the evidence of the sustained juvenile convictions was admissible under an exception to the hearsay rule and, because his conviction was "independently proven by competent evidence," Llamas could rely on it in testifying to his opinion. (See Sanchez, at p. 686.) Accordingly, the only potential sliver of objectionable hearsay in this challenged statement was Llamas's testimony that "[t]he firearm was discarded from the van during the car stop," a fact not contained in the records of the sustained charges.
Item 7: On October 28, 2007 "defendant was a passenger in a vehicle. The vehicle was in a Taco Bell drive-through. [¶] The drive-through attendant of Taco Bell saw a firearm on Mr. Blacknell's lap, called the police. The San Pablo Police Department arrived, at which time the defendant ran from the vehicle, was eventually captured. A firearm was found within five feet of his body."
Again, Llamas's testimony does not indicate how he learned of this incident. In fact, he responded affirmatively to the question: "Are you familiar with the felony crime of violation of Penal Code section 12101 . . . committed by the defendant on October 28, 2007?" Just after asking that question, the prosecutor marked for identification as an exhibit a certified copy of a sustained juvenile petition showing defendant committed a violation of Penal Code section 12101, and that exhibit was admitted into evidence. Thus, Llamas's testimony may have been based on personal knowledge. In any case, it was independently established in part by the juvenile court records for the reasons just discussed. The only potentially objectionable hearsay are the details about the Taco Bell attendant, defendant's flight and the location of the firearm. These details were not discussed further, nor were they mentioned during closing argument. Rather, the prosecutor referenced only the sustaining of the juvenile petition as one of the requisite predicate crimes.
Item 9: "On June 12, 2009, the defendant, Mr. Blacknell, was loitering with three other Easter Hill gang members. CJ, which is Cornell Jackson. Willie Mulder, and Timonte Cook. They were at the intersection of South 26th and Main Avenue, which is right in the heart of Easter Hill territory. [¶] At that time, Officer Loucas, a Richmond Officer, attempted to contact Mr. Blacknell, at which time he ran from him. Officer Loucas chased Mr. Blacknell into a backyard, and Mr. Blacknell jumped over the fence. [¶] And at the base of the fence where Mr. Blacknell jumped over was a recovered loaded pistol magazine that had ammunition in the magazine, as well as some sunglasses that Mr. Blacknell was wearing. The persons he was loitering with were Easter Hill gang members, and the territory he was in was Easter Hill territory."
Llamas testified to this information after being asked about the basis for his opinion that defendant was "active with Easter Hill" at the time of the charged crimes. Again, Llamas did not explain how he knew this information. Accordingly, there has been no showing it actually is hearsay. In any case, there was also independent evidence of portions of this testimony. Llamas testified generally (without objection) as to the boundaries of Easter Hill's and other gang's territory, and testified Jackson, Mulder, and Cook were Easter Hill gang members.
Item 10: "On 9/9/2009, there was a murder in Oakland." It occurred at "1039-10th Street in Oakland, which is approximately two blocks from Acorn territory. [¶] . . . [¶] Sergeant Perez told me at the time of the murder they were processing the scene for evidence and they located . . . a laser beam that was found underneath the body of Sedric Gadson."
Item 11: Llamas testified he was "familiar" with the murder of Demario Lee on September 10, 2009. "[T]he territory he was killed in was at the Barretts. Barretts is a low income housing development that's inside of Deep C territory."
Item 12: On September 11, 2009, "[w]e had a double homicide. Alfred Thomas and Kanesha Mallard were killed at Carlson and Imperial."
Llamas testified to these four uncharged murders as part of the basis for his opinion as to the gang motive for the September 13, 2009 crime spree. Again, there is nothing in the record as to how Llamas learned this information. Accordingly, the record does not show that he was testifying to hearsay, and as a long-time gang detective and expert, Llamas would be expected to know of local gang-related crimes, and could well have personally participated in their investigation of these crimes. In any case, Llamas also based his opinion that these murders were gang related on the toolmark expert's testimony, which connected casings found at the scenes of the uncharged murders to casings found in this case. Llamas explained "the firearms testing of these casings allow me to discover that these casings came back from other shooting scenes and that implies cooperation among the individuals in the shootings and murders." Thus, the toolmark expert's testimony independently established the existence of the uncharged crimes. As to Sergeant Perez's statement about the laser "beam," Llamas also learned about this from an independent source—he testified he personally saw the envelope with the laser beam and shell casings.
Item 13: On May 31, 2011, "Mr. Gix was arrested by the El Cerrito Police Department for possession of a firearm, and in the vehicle was a high capacity magazine that was loaded with 26 rounds. [¶] . . . [¶] He had a bulletproof vest as well in the car."
Llamas testified to this as part of the basis for his opinion that Kianti Gix was an Easter Hill gang member. This opinion was based, in part, however, on Llamas's own surveillance and thus was not hearsay. The substance of this testimony was also established through an independent source: The parties stipulated "on May 31 st, 2011, Kianti Gix unlawfully possessed a concealed firearm and unlawfully possessed a magazine with 26 rounds."
Remaining Two Challenged Statements
Item 1. "I've had two Project Trojans gang experts tell me the background of Brian Jones as the shooter and as a drug dealer. At the age of 12, they believe he did his first shooting."
This statement is clearly hearsay, there is no apparent exception to the hearsay rule, and we have not located any independent evidence in the record mirroring this testimony. Sanchez, however, bars only case-specific hearsay. (Sanchez, supra, 63 Cal.4th at p. 676.)
Exactly what constitutes "case-specific" hearsay is a matter of evolving definition. (See, e.g., Huynh, supra, 19 Cal.App.5th at pp. 696-697 [facts related to predicate offense are case specific; hearsay that defendant had bragged about being a gang member was case specific]; Iraheta, supra, 14 Cal.App.5th at pp. 1247-1250 [gang expert could rely on hearsay to testify about "general attributes of the Inglewood 13 gang, such as the gang's culture, the importance placed on reputation and guns, the requirements to join and leave the gang, the gang's rivals and claimed turf, the use of monikers and identifying symbols," but not to testify "that persons found in [defendant's] company were self-admitted gang members"; hearsay statements by six individuals that they were gang members aimed at "demonstrating [defendant] associated with gang members and was therefore a gang member" himself were case specific]; Meraz, supra, 6 Cal.App.5th at pp. 1174-1175 [gang expert could testify to "general background information about Terra Bella, its rivalry with Project Boys, its primary activities, and its pattern of criminal activity, even if it was based on hearsay sources like gang members and gang officers"; "[u]nder Sanchez, facts are only case specific when they relate 'to the particular events and participants alleged to have been involved in the case being tried,' " quoting Sanchez, supra, 63 Cal.4th at p. 676].)
We need not decide whether this challenged hearsay is case specific. As we discuss below, even if this statement is problematic under Sanchez, any error in allowing it was not prejudicial under Watson.
Item 14. "There was another murder [in Richmond] on March 17th, 2009."
There is nothing in the record as to how Llamas learned this information, and thus, the record again does not show that he was testifying to hearsay. The prosecutor stated in closing argument that he asked Llamas the question that elicited this testimony to show that defendant's MySpace bragging, shortly after Marcus Russell's death on March 10, 2009, about a murder necessarily referred to Russell's murder—the point being that there was no other murder in Richmond until March 17, after defendant's MySpace bragging. On cross-examination, defense counsel asked Llamas if he had "a list of 2009 homicides" with him. When Llamas replied that he did, defense counsel asked to look at it and then asked "So there was [a murder in Richmond] in 2009, 2/28/09. Another on 3/10/09 [Russell's murder]. Another on 3/17/09. 3/27/09. 3/31/09." Llamas responded "Sounds about right."
Again, we need not decide whether this challenged statement is case-specific hearsay. Even if it is, allowing it was not prejudicial under Watson, the issue to which we now turn.
No Prejudicial Error
What is apparent from the discussion above is that defendant has failed to carry his burden of showing any Sanchez error as to most of the 14 challenged statements. Hearsay exceptions apply to some of the statements. Many are supported by other evidence. It simply cannot be said that, had the handful of statements or details that are actually problematic under Sanchez not been allowed, it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836; see Huynh, supra, 19 Cal.App.5th at p. 695; Ochoa, supra, 7 Cal.App.5th at pp. 588-589; Meraz, supra, 6 Cal.App.5th at pp. 1176-1177.)
While the few problematic statements that were allowed were proffered as evidence defendant was a member of the Easter Hill Boys gang, committed the charged crimes for the benefit of a criminal street gang, and committed the two predicate crimes (the sustained juvenile petitions), there was extensive other evidence going to these points. Llamas, himself, testified over the course of four days—the problematic testimony is, thus, only a minute fraction of his testimony. For example, Llamas also connected the murders of Gadson, Lee, Thomas and Mallard to gang activity by (1) reviewing the findings of the toolmark expert Murdock; (2) opining that the timing of the killings suggested revenge for a fallen Easter Hill gang member; (3) opining that one of the victims was a rival gang member; and (4) noting that Easter Hill gang members bragged about killing that rival gang member on MySpace. He additionally testified about defendant's sustained juvenile petitions, gang-related tattoos (defendant showed his to the jury), the MySpace pages and photographs, the photos on defendant's cell phone of him with a "Beam Team" caption, and the extensive writings describing the motivation for the crimes found in defendant's jail cell.
In short, the evidence supporting the gang enhancements was very substantial. Indeed, defendant's attorney observed: "[O]bviously the defense hinges on whether the jury accepts the theory that all this online activity and ranting and raving is actually rooted in reality or is just empty braggadocio." Defendant makes no argument that the jury could not have reasonably chosen to believe that he and his associates were, in fact, bragging about crimes they committed and not merely engaging in empty braggadocio.
Accordingly, the record here is far different than that in Iraheta, where the court concluded Sanchez and Crawford error was prejudicial. The court in Iraheta recognized there was "considerable admissible evidence" that the defendant was a gang member. (Iraheta, supra, 14 Cal.App.5th at p. 1253.) However, there also was "considerable evidence" that he was not, including evidence he had never before been arrested or convicted of a crime, he was a high school graduate and was enrolled in a technical institute. His girlfriend testified she had been dating him for two months and did not know he was a gang member. He had enlisted in the military and was in the Army National Guard Reserve. He testified he had just been hired by Bank of America and his girlfriend said the same and they had been shopping for work clothes the morning of the shooting. There were no photographs of defendant flashing gang signs. (Ibid.) The gang expert admitted "he knew of no active Inglewood 13 gang members who were in the military, had a legal job, were enrolled in school, had never self-admitted, and had no Ingelwood 13 gang tattoos." (Ibid.) In addition, the defendant's mother did not live in the gang territory, and he lived with her half the time. The defendant's explanations were also corroborated by his girlfriend's mother. (Id. at p. 1254.) In fact, he had a reasonable explanation, or contrary evidence, for much of the "gang" evidence that had been introduced. (Id. at pp. 1253-1254.) As we have discussed, the instant record contains no comparable evidence.
The record in Pettie, supra, 16 Cal.App.5th 23, was also distinctly different than that here. In that case, the "evidence of defendants' connections to the Norteño street gang was not so overwhelming that the police contacts were ' " 'unimportant in relation to everything else the jury considered.' " ' " (Id. at p. 65, quoting People v. Pearson (2013) 56 Cal.4th 393, 463.) In fact, much of the evidence the gang expert identified as gang-related "had no specific connection to the Norteño gang per se, but instead related to cliques or neighborhoods." (Pettie, at p. 65.) Thus, the Attorney General conceded that although three men had tattoos and other indicia pertaining to certain geographic-based cliques, " 'there was no definitive evidence [that the defendants] belonged to different Norteño subgroups.' " (Ibid.) Accordingly, the significance of the hearsay of police contact information was substantial. (Ibid.) As we have discussed, that is not the situation in the instant case.
We therefore conclude it is not reasonably probable the jury would have reached a result more favorable to defendant, had the few potentially problematic statements under Sanchez not been allowed. Firearm Use Enhancements Under Amended Penal Code Section 12022 .53
In his further briefing, defendant attempts to resuscitate his claim that the MySpace pages introduced into evidence and showing gang activity were not properly authenticated, and to additionally claim the MySpace material was testimonial because it was " 'created soley for an evidentiary purpose.' " To the extent the MySpace photographs are challenged under Sanchez, the California Supreme Court has held photographs "are not statements of a person as defined by the Evidence Code. ([Evid. Code,] §§ 175, 225.) Therefore, they do not constitute hearsay as statutorily defined. ([Evid. Code,] § 1200, subd. (a).)" (People v. Goldsmith (2014) 59 Cal.4th 258, 274.) As to the claim that the MySpace materials are testimonial, the materials posted, whether by defendant or others, were not made to a police officer, not formal, and plainly not for the primary purpose of "preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at pp. 689, 692-694.)
The trial court imposed firearm use enhancements as to seven counts, which at the time of sentencing were mandatory. Effective January 1, 2018, section 12022.53 was amended to give the trial court discretion "in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed." (§ 12022.53, subd. (h).) Defendant and the People are in agreement that "amended section 12022.53, subdivision (h), applies retroactively," under the rule of In re Estrada (1965) 63 Cal.2d 740, 746.
The People note an error in the abstract of judgment, which incorrectly reflects a section 12022.53, subdivision (a) enhancement imposed in connection with count 19, resisting arrest. Instead, the additional term imposed on that count was the result of the jury's true finding under section 12022.5, subdivision (a). Defendant agrees. We thus will order the abstract of judgment corrected accordingly. --------
They are in disagreement as to whether remand is appropriate. Defendant asserts that it is. The People maintain otherwise because " 'doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence,' " citing People v. Coelho (2001) 89 Cal.App.4th 861, 889. The People contend "the trial court's comments at sentencing, and the extreme violence of appellant's prolonged pattern of criminal conduct, make it all but inevitable that remand would result in nothing more than reaffirmation of the various firearm enhancements," and thus "remand would be a futile act."
At sentencing, the court observed: "The crimes in Count One, Two, Ten, Twelve and Thirteen, I find do involve high degrees of violence and viciousness. These are the counts involving all of the shootings. Consistent in each of these counts are the fact the victims were subjected to what has been described as a hail of gunfire by the defendant and his associates without provocation or warning. [¶] [The victims in] Counts One and Two, were shot at at least 11 times while traveling on Interstate 580. [¶] Mr. Buckley . . . Count Ten, was shot at by the defendant and one associate at least 29 times while sitting in his car at a stoplight. [¶] . . . [In] Counts Twelve and Thirteen, [the victims] were shot at by the defendant and three others at least 56 times while sitting in a car at a stoplight. [¶] I do find these victims to be particularly vulnerable because they were caught unaware and confined inside a vehicle when the shooting started. Each of these crimes were committed with at least a total of three people acting in concert. So there was some planning involved. . . ."
Although the trial court's comments at sentencing indicate it viewed the crimes and the use of firearms in their commission as extremely violent and vicious, we cannot say it would serve "no purpose" to remand the matter. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [no remand where trial court indicated that "it would not, in any event, have exercised its discretion to lessen the sentence"]; compare People v. Almanza (2018) ___ Cal.App.5th ___, ___ Cal.Rptr.3d ___, ___ [where trial court could have, but did not, impose concurrent sentences for assault and murder convictions, record did not show court was "inclined to be lenient"]. We therefore remand this case to allow the trial court to exercise its discretion as to whether to strike the firearm enhancements. We express no opinion as to how the trial court should exercise that discretion on remand.
DISPOSITION
The convictions on counts 3, 14, 21, and 22 are reversed and the sentences vacated. The cause is remanded for resentencing to allow the superior court to exercise its discretion regarding whether or not to strike the firearm enhancements imposed under section 12022.53. The enhancement imposed as to count 19 is mistakenly indicated in the abstract of judgment as a section 12022.53 enhancement, when it was actually an enhancement under section 12022.5. The superior court is directed to amend the abstract of judgment to reflect this and any changes made at resentencing, and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P. J. /s/_________
Dondero, J.