Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA077218 Teri Schwartz, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD J.
A jury convicted defendant and appellant Roland Andrew Chavez of one count of first degree murder following the death of Luis Morales, who died approximately eight and one-half years after being shot. Appellant contends that his conviction should be reversed for several reasons, including that he was denied his Sixth Amendment right to confrontation when an expert relied on medical reports prepared by other doctors in expressing his opinion as to Morales’s cause of death; the trial court abused its discretion in admitting the expert’s opinion as to the cause of death and in allowing evidence that appellant was a gang member; and the trial court erred in failing to instruct sua sponte that appellant’s out-of-court statements should be viewed with caution. The People argue that the abstract of judgment should be corrected to delete an award of 351 days of conduct credit.
Finding no prejudicial error, we affirm the judgment but modify the abstract of judgment to reflect the correct presentence custody credit award of 2, 340 days.
FACTUAL AND PROCEDURAL BACKGROUND
The Shooting.
Prior to November 1998, 14-year-old Luis Morales and his girlfriend, 18-year-old Sarah Devery, lived in an apartment on Rosemead Boulevard in San Gabriel with their friend Jovita Gonzalez. Appellant lived in the apartment below them.
Gonzalez had suffered a prior felony conviction in 1993.
On November 15, 1998, Morales and Devery were sitting and eating at an outside table at a McDonald’s restaurant near their home. A male walked up to them and pointed a shotgun at their heads. Devery ran into the restaurant, heard shots and then looked outside to see that Morales had been shot and was lying in a pool of blood, holding his stomach. Sometime earlier the same day, Gonzalez had walked by appellant’s apartment and saw through the open front door that appellant was holding a rifle.
Off-duty Los Angeles Police Officer Harold Marinelli was inside the McDonald’s restaurant with his wife and two young daughters when through a window he saw appellant holding a shotgun pointed at Morales and Devery. He immediately alerted his wife and grabbed his children. He heard shots fired as he was putting one of his daughters underneath the table. After the shooting, Officer Marinelli ran to the parking lot and saw appellant drive away in a truck.
Los Angeles County Deputy Sheriff Charles Fallon investigated the shooting. He spoke to Devery at the hospital, where she identified appellant as the shooter. She said that appellant lived in the apartment directly below her and that he was a member of the Burlington gang. She said she had been sitting at McDonald’s when a truck came “screeching” into the parking lot. Appellant got out of the truck holding a shotgun. He walked directly up to Morales and Devery, pointed the gun at their heads and said “‘where is my shit’ or ‘my stereo’”? At that point, she said she left the table to go into the restaurant and then heard the shots. She provided Deputy Fallon with a detailed description of appellant.
Immediately following Deputy Fallon’s statement about the Burlington gang, the trial court instructed the jury that the information was not being offered for the truth of the matter that appellant belonged to a gang, but rather, to assist in the determination of Devery’s credibility.
Deputy Fallon prepared a photographic “six-pack” of individuals fitting appellant’s general description, including appellant. From the six-pack, Devery identified appellant as the shooter. Officer Marinelli also identified appellant out of the six-pack and subsequently identified a photograph of appellant’s truck as depicting the truck he saw driving away from the restaurant. When shown the six-pack, Gonzalez stated that she did not want to get involved because she was afraid for her family. She did, however, identify appellant’s truck from a series of photographs.
While still hospitalized in May 1999, Morales testified that he had been shot in the stomach when he was outside a McDonald’s restaurant. At that point, he was on a parenteral, or an intravenous, feeding regimen. Morales did not recall the specifics of the shooting or who shot him; nor did he recall being interviewed by Deputy Fallon shortly after the shooting even though he identified his signature next to a photographic identification of appellant. Morales later admitted that he did not identify appellant as the shooter because he wanted to kill appellant himself. He then affirmatively identified appellant as the man who shot him.
The truck that had been identified from the McDonald’s parking lot was registered to appellant on the day of the shooting. Appellant sold the truck four days after the shooting.
At trial, Devery testified that she did not remember the shooter saying anything, she did not recognize anyone in the courtroom and she did not recall what she had said in a police interview shortly after the shooting. Devery admitted that she was fearful for herself and her 10-year-old son, given that she had never heard of anything good happening to a snitch. She later identified appellant as the individual who had lived in the apartment below her. Similarly, though Gonzalez ultimately admitted at trial that Devery had told her appellant shot Morales, she was hesitant to do so because she wanted to protect her family. Gonzalez also stated that appellant’s wife had given intimidating looks to Devery and her outside the courtroom, which made Devery in particular fearful.
In a recorded conversation between Devery, the prosecutor and Los Angeles County Sheriff’s Department Sergeant Robert Martindale three days before Devery’s trial testimony, Devery stated that seeing appellant’s face reminded her of the shooting and how scared she was. She stated that when appellant pointed the gun at Morales and her, he said “‘Where’s my shit bitch!’” and refused to put the gun down when she asked. Though she wished she could do the “right thing” for her son’s sake, she said she would be unable to identify appellant at trial because she would be snitching, and the “rules and regulations” required her not to snitch. She felt she had to follow those rules because she was worried that appellant still knew people whom she knew. If she were just talking to her son, however, she would tell him that appellant shot Morales, her son’s father.
Morales’s Death.
Forensic pathologist Glenn Nazareno, M.D., performed an autopsy on Morales on April 4, 2007. On the basis of his examination, he opined that Morales died from a complication following a liver and small bowel transplant, necessitated by short gut syndrome and cirrhosis of the liver induced by parenteral feeding, which resulted from a gunshot wound to the abdomen.
Dr. Nazareno reviewed Morales’s medical records following the March 2007 transplant. He and most doctors typically rely on a patient’s medical records in the normal course of business. But because he did not have all of Morales’s medical records since the shooting, he conceded that he did not know Morales’s complete medical history from 1998 to 2007.
Morales’s medical records contained notations from doctors that the reason for the transplant was short gut syndrome, which had resulted from the gunshot wound. Short gut syndrome is a metabolic disease brought about by a decreased length in the intestinal track, a condition which usually occurs after a surgery. According to Morales’s medical records, after Morales was shot he had all of his small bowel and some of his large bowel resected, or cut out. Dr. Nazareno also learned from Morales’s medical records that he had been provided parenteral nutrition because he was unable to consume food as a typical person would. One complication from extended parenteral feeding is liver destruction. Morales’s medical records indicated that the parenteral nutrition had caused his cirrhosis of the liver. It would not have affected Dr. Nazareno’s ultimate opinion about Morales’s cause of death if he had learned that Morales had not consistently followed his parenteral nutrition regimen, that he had used illegal drugs for several years preceding his death, or that he was rejected for an organ transplant two years before his death. At the time of Morales’s death, Dr. Nazareno could only examine the transplanted liver, which contained infarcts, or segments that had died due to lack of circulation. At that time, part of Morales’s small intestine had also died from blood clots in the circulation.
When posited with a hypothetical in which he was to assume that Morales’s initial injury was an abdomen wound caused by a shotgun fired at close range, that Morales required parenteral nutrition which then necessitated the transplant and that Morales ultimately died shortly after the transplant, Dr. Nazareno opined that the abdomen injury initiated everything that followed. He opined that when Morales was shot, he sustained a major injury to the artery that supplied blood to the large and small intestine. The surgeries following that injury resulted in short gut syndrome, which in turn required a parenteral nutrition regimen. He further opined that neither any surgery, short gut syndrome or parenteral nutrition would have occurred absent the gunshot wound.
Trial and Verdict.
An information filed in July 2009 by the Los Angeles County District Attorney charged appellant with one count of murder (Pen. Code, § 187, subd. (a)). The information further alleged that appellant personally and intentionally discharged a firearm, proximately causing great bodily injury and death within the meaning of section 12022.53, subdivisions (b) through (d). Appellant pled not guilty and denied the special allegations.
All further statutory references are to the Penal Code unless otherwise indicated.
A jury trial commenced on October 5, 2009. The jury found appellant guilty of murder in the first degree and found the firearm enhancements to be true. Denying probation, the trial court sentenced appellant to state prison for an aggregate term of 50 years to life, comprised of 25 years to life for murder plus a consecutive 25 years to life for the firearm enhancements. It also ordered appellant to pay a number of fees and fines, including a $500 restitution fine, a $30 court security fee and a $30 criminal conviction fee. The trial court imposed and stayed a $500 parole revocation fine. Appellant received 2, 691 days of presentence custody credit.
This appeal followed.
DISCUSSION
Appellant contends his conviction should be reversed for four independent reasons: His Sixth Amendment right to confrontation was violated by Dr. Nazareno’s opinion as to Morales’s cause of death to the extent that the opinion was premised on opinions expressed by other doctors in the medical records; the trial court prejudicially abused its discretion in admitting Dr. Nazareno’s opinion as to Morales’s cause of death because it did not meet the requirements of Evidence Code section 801; the trial court prejudicially abused its discretion in admitting a statement about appellant’s gang affiliation; and the trial court prejudicially erred in failing to instruct the jury sua sponte that appellant’s out-of-court statements should be viewed with caution. We find no merit to appellant’s contentions.
I. Appellant’s Right to Confrontation Was Neither Implicated Nor Violated by Dr. Nazareno’s Testimony.
A. Applicable Legal Principles.
The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides that “‘[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’” In Crawford v. Washington (2004) 541 U.S. 36, 51 (Crawford), the United States Supreme Court held that the Sixth Amendment guarantees a defendant’s right to confront those “who ‘bear testimony’” against him. Accordingly, the testimonial statements of a witness who does not appear at trial are inadmissible unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. (Crawford, supra, at pp. 51, 53–54.) Whether a statement is testimonial presents a question of law which we review de novo. (See People v. Seijas (2005) 36 Cal.4th 291, 304.)
In People v. Geier (2007) 41 Cal.4th 555, 596 (Geier), the California Supreme Court reviewed Crawford and other confrontation clause cases to determine whether allowing the prosecution’s DNA expert to testify based on another unavailable analyst’s test results violated the Sixth Amendment. In holding such testimony was permissible because it was not based on testimonial statements, Geier explained that a hearsay statement is “testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial.” (Geier, supra, at p. 605.) Applying this test, the court in Geier held that DNA testing reports do not meet the second criterion because they “constitute a contemporaneous recordation of observable events rather than the documentation of past events.” (Ibid.)
The Geier court also concluded that when analysts performing DNA testing contemporaneously record their actions, observations, and test results, they are not acting to incriminate a defendant because their reports have the potential to be either inculpatory or exculpatory. Therefore, even though analysts may be working for the police and can reasonably anticipate that test results will be used at trial, they are not acting as accusatory witnesses making testimonial statements when they prepare their reports. (Geier, supra, 41 Cal.4th at pp. 605–607.) For these reasons, the court in Geier held that the DNA testing report was not testimonial and that the admission of the report, even absent cross-examination of the analyst who prepared it, did not conflict with Crawford or violate the confrontation clause. (Geier, supra, at pp. 605–607.)
Following Geier, the United States Supreme Court decided Melendez-Diaz v. Massachusetts (2009) __ U.S. __ [129 S.Ct. 2527, 174 L.Ed.2d 314] (Melendez-Diaz), in which it held that the Sixth Amendment precluded the admission into evidence of affidavits by government laboratory analysts as violating the confrontation clause. There, the trial court had admitted three notarized “certificates of analysis” stating that the results of forensic testing showed the substance seized from the defendant was in fact cocaine. (Id. at p. __ [129 S.Ct. at p. 2531].) In a five to four decision, the Court concluded the affidavits were testimonial statements because they were the functional equivalent of live, in-court testimony, “‘made under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial.’” (Ibid.) The Court also reasoned that the analysts were accusatory witnesses because the affidavits proved facts necessary to the prosecution’s case. (Id. at pp. __ [129 S.Ct. at p. 2533–2534].) The Court concluded that confrontation was necessary for admission of the affidavits because the defendant “did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed.” (Id. at p. __ [129 S.Ct. at p. 2537].)
Appellate courts have disagreed whether Geier remains good law after Melendez-Diaz, and the question is currently pending before the California Supreme Court.
See, e.g., People v. Bowman (2010) 182 Cal.App.4th 1616, review granted June 9, 2010, S182172; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted December 2, 2009, S176620; People v. Lopez (2009) 177 Cal.App.4th 202, review granted December 2, 2009, S177046; People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted December 2, 2009, S176213; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted December 2, 2009, S176886.
B. The Medical Records on Which Dr. Nazareno Relied Were Not Testimonial and Constituted a Proper Basis for His Opinion.
Appellant contends that Dr. Nazareno’s opinion that Morales’s gunshot wound was a substantial factor in causing Morales’s death violated his right to confrontation because it was premised on medical records containing the opinions of other doctors who were not available for cross-examination. Though conceding that Morales’s medical records were never admitted into evidence, he contends that Dr. Nazareno’s opinion testimony was the “functional equivalent” of admission because his opinion relied on other doctors’ prior assessments of Morales’s condition. For example, Dr. Nazareno testified that while it was not his assessment that Morales’s liver cirrhosis was caused by the parenteral feeding, that was the assessment “perpetuated throughout the patient’s records.” Similarly, Dr. Nazareno testified that it was an assumption on his part that Morales’s short gut syndrome was caused by the gunshot wound because that information was contained in the medical records.
The key to appellant’s argument is his assertion that the statements contained in the medical records reviewed and discussed by Dr. Nazareno were testimonial hearsay. Though Crawford declined to “spell out a comprehensive definition of ‘testimonial, ’” the Court expressly identified business records as one example of hearsay statements “that by their nature were not testimonial.” (Crawford, supra, 541 U.S. at pp. 56, 68.) Building on that characterization, the Court in Melendez-Diaz, supra, 129 S.Ct. at pages 2539 through 2540, stated: “Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” The Melendez-Diaz Court illustrated the nontestimonial nature of business records by singling out medical records, noting that “medical reports created for treatment purposes... would not be testimonial under our decision today.” (Id. at p. 2533, fn. 2.)
Appellant concedes that his counsel did not object to Dr. Nazareno’s testimony on the ground that it violated the confrontation clause. We could, therefore, conclude that appellant has forfeited any confrontation clause claim by failing to raise the issue at trial. (E.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19.) But in order to dispose of appellant’s ineffective assistance of counsel claim, we will address his arguments on the merits.
Given the Melendez-Diaz Court’s confirmation of the nontestimonial nature of medical and other business records, we reject appellant’s suggestion that the decision somehow abrogated the principle that a testifying expert may rely on hearsay information in formulating an opinion, discussed post.
Indeed, medical records prepared in the course of treatment display none of the indicia of a testimonial statement. Beyond the evidence that Morales’s treatment began as a result of a gunshot wound, there was no indication that his records were created “‘under circumstances which would lead an objective witness reasonably to believe that the[y] would be available for use at a later trial.’ [Citation.]” (Crawford, supra, 541 U.S. at pp. 51–52.) Nor did Morales’s medical records resemble what Crawford described as other “formulations” of a “core class of ‘testimonial’ statements [including] ‘ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially’ [citation]; [or] ‘extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions’ [citation]....” (Ibid.; see also People v. Taulton (2005) 129 Cal.App.4th 1218, 1223, 1224 [“test for determining whether a statement is ‘testimonial’ is not whether its use in a potential trial is foreseeable, but whether it was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue”].) “The fact that [business] records may, at times, become relevant evidence in a criminal trial, or even that such future use may be foreseeable, does not change the purpose for which the records were prepared.” (People v. Taulton, supra, at p. 1224; see also People v. Cage (2007) 40 Cal.4th 965, 986 [“primary purpose” of patient’s statement in medical records “was not to establish or prove past facts for possible criminal use, but to help [the treating doctor] deal with the immediate medical situation he faced”].)
Implicitly acknowledging that nontestimonial medical records which were never introduced into evidence are an inadequate basis to support any confrontation clause violation, appellant argues that Dr. Nazareno’s opinion violated his Sixth Amendment rights to the extent it was based on other medical opinions expressed in the records. To support his argument, he relies principally on People v. Campos (1995) 32 Cal.App.4th 304, which addressed the Evidence Code restrictions on an expert’s testimony and only obliquely discussed any constitutional limitations. Finding it a nonprejudicial abuse of discretion to permit an expert psychiatrist to testify that each prior medical evaluation was consistent with her own, the court stated: “Psychiatrists, like other expert witnesses, are entitled to rely upon reliable hearsay, including the statements of the patient and other treating professionals, in forming their opinion concerning a patient’s mental state. [Citations.] On direct examination, the expert witness may state the reasons for his or her opinion, and testify that reports prepared by other experts were a basis for that opinion. [Citation.] [¶] An expert witness may not, on direct examination, reveal the content of reports prepared or opinions expressed by nontestifying experts. ‘“‘The reason for this is obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse.’”’ [Citations.]” (Id. at pp. 307–308; accord, Whitfield v. Roth (1974) 10 Cal.3d 874, 895 [“It is clear that doctors can testify as to the basis of their opinion [citation], but this is not intended to be a channel by which testifying doctors can place the opinion of innumerable out-of-court doctors before the jury”]; People v. Young (1987) 189 Cal.App.3d 891, 913 [“The rule which allows an expert to state the reasons upon which his opinion is based may not be used as a vehicle to bring before the jury incompetent evidence”].)
Here, the record established that Dr. Nazareno’s testimony did not place the content of other doctors’ opinions before the jury nor was it merely a recitation of those opinions. Rather, Dr. Nazareno relied on Morales’s medical reports only to the extent they assisted him in formulating his own opinion as to Morales’s cause of death. In eliciting Dr. Nazareno’s opinion as to whether the gunshot wound was a substantial factor in causing Morales’s death, the prosecutor posed the inquiry as a hypothetical: “I’m asking you to assume that the injury is going to be from a shotgun slug, not a bird shot, but an actual one-ounce slug. If we assume that to be the cause of the actual injury itself, can you let the jury know how—if a shotgun slug comes into you and you need to get a new liver, a new intestine and a new pancreas and you have a host of health issues that may keep you alive through parenteral nutrition over the course of several years, do you have an opinion as to whether or not that shotgun blast had an impact on the need to get the transplants and the ultimate death itself?” After the trial court overruled an objection for lack of foundation, Dr. Nazareno responded “[b]asically this was what initiated everything, this was the cause for his medical conditions which eventually led up to his transplant, ” explaining that by “this” he meant “[t]he injury to the abdomen caused by either the gunshot or shotgun wound.”
During cross-examination and on redirect, Dr. Nazareno clarified that he reached his opinion independently. His review of additional medical records showing that Morales was noncompliant with his parenteral nutrition regimen and used illicit drugs did not change his opinion as to Morales’s cause of death. He further testified that it would not have made a difference in his opinion to know that Morales was rejected for an organ transplant in 2005. Dr. Nazareno confirmed the limited nature of his opinion, stating that “my conclusion is he [Morales] basically died because of a liver transplant complication.” On the basis of his review of Morales’s medical records beginning with the transplant, he determined there was no indication that Morales would have required that transplant had he not received a wound to his abdomen in November 1998.
Dr. Nazareno’s reliance on Morales’s medical records to formulate his own opinion did not implicate appellant’s rights under the confrontation clause. In People v. Cooper (2007) 148 Cal.App.4th 731, 746, we found meritorious the People’s claim that the trial court erroneously excluded expert testimony on the ground that it was based in part on testimonial interviews with the victim. Explaining that the confrontation clause did not bar the expert’s reliance on such testimony, we explained: “It is the long-standing rule in California that experts may rely upon and testify to the sources on which they base their opinions [citation], including hearsay of a type reasonably relied upon by professionals in the field. [Citations.].... Hearsay relied upon by experts in formulating their opinions is not testimonial because it is not offered for the truth of the facts stated but merely as the basis for the expert’s opinion. [Citations.] [¶] Crawford was concerned with the substantive use of hearsay evidence that was admitted within an exception to the hearsay rule. It did not suggest that the confrontation clause was implicated by admission of hearsay for nonhearsay purposes. In fact, Crawford expressly stated that the confrontation clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’ [Citation.] ‘Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions.’ [Citation.]” (Id. at pp. 746–747.)
The basis for this distinction is that the hearsay information which experts rely is utilized for a nonhearsay purpose: “The hearsay relied upon by an expert in forming his or her opinion is ‘examined to assess the weight of the expert’s opinion, ’ not the validity of their contents. [Citation.]” (People v. Cooper, supra, 148 Cal.App.4th at p. 747; see also People v. Sisneros (2009) 174 Cal.App.4th 142, 153 [“‘Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned’”]; People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 [that gang expert’s knowledge of the facts of predicate crimes was necessarily based on hearsay statements made during police interrogation did not implicate the defendant’s Sixth Amendment rights, as “‘the confrontation clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted”’”]; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 [where “statements were not offered to establish the truth of the matter asserted, but merely as one of the bases for an expert witness’s opinion, the confrontation clause, as interpreted in Crawford does not apply”].) Thus, to the extent that Dr. Nazareno’s opinion as to Morales’s cause of death was based on doctors’ entries contained in Morales’s medical records, “the confrontation clause does not prevent h[im] from rendering h[is] opinion and stating the sources of information on which []he relied in reaching it. Such evidence is not admitted for the truth of the matter asserted. [Citation.]” (People v. Cooper, supra, at p. 747.) Accordingly, Dr. Nazareno’s testimony did not violate appellant’s Sixth Amendment rights.
If we could discern any error in the admission of Dr. Nazareno’s testimony to the extent it conveyed statements contained in Morales’s medical records, we would find any error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”].) Appellant’s prejudice argument is premised on the notion that the jury could have found the gunshot wound was not the proximate cause of Morales’s death because Morales’s noncompliant behavior created a superseding cause. (See People v. Armitage (1987) 194 Cal.App.3d 405, 420.) But the only evidence of Morales’s conduct was contained in the medical records about which Dr. Nazareno was questioned on cross-examination—medical records which appellant contends should not have been part of Dr. Nazareno’s opinion testimony. Simply put, appellant cannot have it both ways. In any event, evidence beyond Morales’s medical records showed that Morales was shot at close range in the stomach; he was hospitalized and required parenteral feeding as a result of that shooting; one complication from parenteral feeding is liver destruction; and Morales died because of a liver transplant complication.
II. Dr. Nazareno Offered Proper Expert Opinion Testimony.
In an alternative to his confrontation clause argument, appellant contends that Dr. Nazareno’s opinion was improper under Evidence Code section 801 to the extent he relied on the opinions of other doctors. “When expert opinion is offered, much must be left to the trial court’s discretion. [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 403, superseded by statute on another point as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106–1107.) “[D]isputes in this area must generally be left to the trial court’s sound judgment.” (People v. Montiel (1993) 5 Cal.4th 877, 919.) The deferential abuse of discretion standard applies to review of trial court rulings under Evidence Code section 801. (People v. Mickey (1991) 54 Cal.3d 612, 688.)
Again, while we could conclude that appellant forfeited this claim by the failure to object, we will address the contention on the merits to dispose of any ineffective assistance of counsel claim.
Here, the trial court properly exercised its discretion by permitting Dr. Nazareno to base his opinion as to Morales’s cause of death on his review of Morales’s medical records as well as the autopsy he performed on Morales. As explained in People v. Gardeley (1996) 14 Cal.4th 605, 617, the Evidence Code “permits a person with ‘special knowledge, skill, experience, training, or education’ in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801).” “Evidence Code section 801 limits expert opinion testimony to an opinion that is ‘[b]ased on matter... perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates....’ (Id., subd. (b).)” (People v. Gardeley, supra, at p. 617; accord, People v. Duran (2002) 97 Cal.App.4th 1448, 1463 [“Expert testimony may be founded on material that is not admitted into evidence and on evidence that is ordinarily inadmissible, such as hearsay, as long as the material is reliable and of a type reasonably relied upon by experts in the particular field in forming opinions”].)
Citing Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 860 disapproved on another point in People v. Ault (2004) 33 Cal.4th 1250, 1272, footnote 15, appellant contends that the opinions of other experts are not the type of hearsay information on which an expert opinion may be predicated. He contends that Dr. Nazareno’s opinion that Morales’s short gut syndrome was caused by the gunshot wound and his opinion that Morales’s liver cirrhosis was induced by parenteral feeding were premised solely on the opinions of other doctors expressed in the medical records. In Mosesian, the plaintiff farmer sued a pesticide manufacturer and seller for crops it lost allegedly due to chemical burn. During direct examination, the defendant’s expert not only revealed that he had consulted with at least six other experts regarding the potential of the defendant’s chemical to cause leaf burn and crop loss on the plaintiff’s ranches, but also disclosed the content of the other experts’ opinions. (Mosesian v. Pennwalt Corp., supra, at pp. 856–857.) The appellate court concluded that it was nonprejudicial error to admit the hearsay opinions of the nontestifying experts, given that the opinions were offered for their truth. (Id. at p. 864.)
Here, in contrast, Dr. Nazareno did not convey the content of another doctor’s opinion. Rather, he relied on Morales’s medical records and the opinions expressed therein only as a basis for formulating and testifying about his own opinion as to Morales’s cause of death. His testimony is the type contemplated by Evidence Code section 801. The Law Revision Commission Comments to that statute explained that “[i]n regard to some matters of expert opinion, an expert must, if he is going to give an opinion that will be helpful to the jury, rely on reports, statements, and other information that might not be admissible evidence. A physician in many instances cannot make a diagnosis without relying on the case history recited by the patient or on reports from various technicians or other physicians.” For example, in Kelley v. Bailey (1961) 189 Cal.App.2d 728, 737, during a medical expert’s testimony the jury heard portions of a report made by a nontestifying doctor and learned that the testifying expert relied on the report and consulted with the doctor. The appellate court found no error, reasoning: “Such a report stands on a parity with a patient’s history of an accident and ensuing injuries given to his physician. It is admissible not as independent proof of the facts but as a part of the information upon which the physician based his diagnosis and treatment, if any. [Citations.]” (Id. at p. 738; see also Hope v. Arrowhead & Puritas Waters, Inc. (1959) 174 Cal.App.2d 222, 230 [“even though the opinion of an expert cannot be predicated on that of another, it is proper for an expert to express his own opinion based on facts testified to by another expert or on tests made by other experts”].)
Here, the opinion offered by Dr. Nazareno was his own. He testified that he was focused on the end result and opined that Morales died as a result of a liver transplant complication. At the end of his testimony, he distilled his conclusion about how Morales’s gunshot wound related to that transplant, stating that he saw no indication that Morales would have needed the transplant had he not been shot in November 1998.
Even if the trial court had abused its discretion in permitting Dr. Nazareno to testify about the medical records’ description of the causal links between Morales’s injury and his subsequent treatment and conditions, any error was not prejudicial. The trial court specifically instructed the jury about the limited purpose for which Dr. Nazareno discussed Morales’s medical records. (See People v. Catlin (2001) 26 Cal.4th 81, 138; Kelley v. Bailey, supra, 189 Cal.App.2d at p. 738.) Moreover, evidence independent of Dr. Nazareno’s reference to Morales’s medical records—including Morales’s, Devery’s and the balance of Dr. Nazareno’s testimony—established that Morales suffered a shotgun wound, that he had been placed on a parenteral feeding regimen as a result, that the regimen was a cause of liver damage and that Morales died as a result of the liver transplant. It is not reasonably probable that a result more favorable to appellant would have occurred in the absence of testimony relating to conclusions contained in Morales’s medical records. (People v. Catlin, supra, at p. 138 [admission of nontestifying doctor’s opinion through testifying expert harmless error]; People v. Campos, supra, 32 Cal.App.4th at pp. 308–309 [admission of contents of report of nontestifying expert harmless error].)
III. The Trial Court Properly Exercised Its Discretion in Admitting an Isolated Statement About Appellant’s Gang Membership.
Several times before Devery testified, the trial court and counsel discussed the admissibility of her statement to Deputy Fallon that appellant was a gang member. The People argued and the trial court tentatively agreed that her statement was relevant to her credibility—that is, it tended to explain her reluctance to testify—as it showed she was aware of appellant’s gang membership and other statements showed she feared retaliation from him and his gang if she testified against him. Accordingly, the trial court ruled that the statement was admissible, but added that it would admonish the jury as to its limited purpose. The trial court expressly declined to permit the admission of any other gang evidence.
In part to determine whether the statement would be consistent or inconsistent with her trial testimony, the trial court held a hearing pursuant to Evidence Code section 402. At that point, Devery testified that she remembered nothing.
Consistent with the trial court’s ruling, Deputy Fallon answered “yes” to the question “did she [Devery] describe [appellant] as being from a specific—from a gang of any type?” When the prosecutor then asked “which gang would that be?” Deputy Fallon answered “Burlington.” That was the entire extent of the testimony about appellant’s gang membership. Also consistent with its prior ruling, the trial court then immediately instructed the jury that “the information that Mr. Kim [the prosecutor] just elicited regarding what Sarah Devery said is not coming in for the truth that Mr. Chavez belongs to a gang by the name of Burlington. It’s simply being admitted to the extent that it may assist you in determining her believability here as a witness.” As part of the jury instructions at the conclusion of trial, the trial court further instructed: “During the trial, evidence of Sarah Devery’s belief that the defendant was from a criminal street gang was admitted for a limited purpose. This evidence was admitted to assist you in determining her credibility. You may not consider the statement attributed to Sarah Devery for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character, that he had a motive to commit this crime or that he had the disposition to commit this crime.”
Trial courts have broad discretion concerning the admission of evidence. (E.g., People v. Anderson (2001) 25 Cal.4th 543, 591; People v. Smithey (1999) 20 Cal.4th 936, 973–974.) Appellant contends that the trial court abused its discretion in admitting Deputy Fallon’s statement because evidence of Devery’s belief in appellant’s gang membership was more prejudicial than probative under Evidence Code section 352. Our Supreme Court has repeatedly held that “[r]ulings under Evidence Code section 352 come within the trial court’s discretion and will not be overturned absent an abuse of that discretion.” (People v. Minifie (1996) 13 Cal.4th 1055, 1070; accord, People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125; People v. Cudjo (1993) 6 Cal.4th 585, 609.) The undue prejudice related to the admission of evidence must substantially outweigh its relevance to constitute error. (Evid. Code, § 352; People v. Ewoldt (1994) 7 Cal.4th 380, 404.)
Here, the trial court admitted evidence that Devery described appellant as being from the Burlington gang for the limited purpose of evaluating her credibility and explaining her reluctance to testify. “Generally, evidence that a witness is afraid to testify is admissible as relevant to the witness’s credibility. [Citations.]” (People v. Sapp (2003) 31 Cal.4th 240, 301; accord, People v. Warren (1988) 45 Cal.3d 471, 481; People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.) “Testimony a witness is fearful of retaliation similarly relates to that witness’s credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible. [Citations.]” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449–1450; see also People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587–1588 [same].)
Devery’s trial testimony was inconsistent with her initial statements to Deputy Fallon, in that she testified she did not recognize anyone in the courtroom, did not remember significant details about the shooting and did not recall anything she had said to Deputy Fallon after the shooting. Devery did admit, however, that she was fearful of being characterized as a snitch. Devery was not unlike the eyewitness in People v. Avalos (1984) 37 Cal.3d 216, who was reluctant to identify the defendant in court even though she had previously identified him in a lineup. The trial court ruled that the fact the witness was fearful was relevant to her credibility, and that the probative value of such evidence outweighed any potential prejudice to the defendant. (Id. at p. 232.) Affirming the trial court’s evidentiary ruling, the Supreme Court concluded “[t]he determination that an explanation of [the witness’s] hesitation would be relevant to the jury’s assessment of her credibility was well within the discretion of the trial court.” (Ibid.; see also People v. Gonzalez (2006) 38 Cal.4th 932, 946 [a witness’s fear of testifying and the basis for that fear are relevant to his or her credibility].)
Here, although Deputy Fallon’s statement alone might not have constituted a basis for Devery’s fear of testifying, his statement was coupled with statements from Devery’s interview with the prosecutor and Detective Martindale, in which she admitted feeling bound by “the rules and regulations” precluding snitching because she was worried that appellant “knows people that I know.” Under these circumstances, Deputy Fallon’s statement was relevant to Devery’s credibility. (People v. Sanchez, supra, 58 Cal.App.4th at p. 1450 [testimony that a witness is fearful of gang retaliation is admissible evidence relating to the witness’s credibility].) Deputy Fallon’s isolated statement was unlike the gang evidence offered in People v. Cardenas (1982) 31 Cal.3d 897, a case on which appellant relies. There, the court found evidence that the defendant and his three witnesses belonged to the same gang more prejudicial than probative given that the evidence was cumulative of other evidence showing bias and the evidence tended to suggest that the charged offense was gang-motivated. (Id. at pp. 903–905.) Likewise, it was unlike the gang expert testimony offered to show bias in People v. Maestas (1993) 20 Cal.App.4th 1482, 1494–1497, which the court determined was weak, cumulative and not probative. We conclude that the trial court did not abuse its discretion in admitting Deputy Fallon’s statement.
But if we could conclude there had been an abuse of discretion, the admission of the statement was harmless. (See People v. Champion (1995) 9 Cal.4th 879, 923 [applying Watson standard to erroneous admission of gang evidence], disapproved on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.) Deputy Fallon’s reference to Devery’s identification of appellant as belonging to a gang was isolated and not repeated during the balance of his testimony, Devery’s testimony or Devery’s interview with Detective Martindale. Moreover, other witnesses, including Morales and Officer Martinelli, identified appellant as the shooter with no reference to his gang membership. Further, while the prosecutor discussed Devery’s fear of testifying as it related to her credibility, he did not rely on appellant’s gang membership as a basis for that fear. Finally, the trial court admonished the jury immediately after Deputy Fallon’s statement and as part of the jury instructions that the statement could neither be considered for the truth of the matter that appellant was a gang member, nor to demonstrate motive or establish bad character. Rather, the trial court instructed that the evidence was admitted only to assist the jury in determining Devery’s credibility. We presume that the jurors understood and applied these instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.) Given the singular reference to appellant’s gang affiliation, the overwhelming evidence that he was the shooter and the trial court’s limiting instructions, it is not reasonably probably that appellant would have received a more favorable result if the statement had been excluded.
That there was one reference to gang membership distinguishes this case from those on which appellant relies. (See People v. Memory (2010) 182 Cal.App.4th 835, 861 [admission of gang evidence prejudicial where “prosecutor sought through its opening statement, structure of its case-in-chief, examination of witnesses, and in closing arguments, to continually portray defendants as members of a violent ‘1%er’ outlaw motorcycle club akin to the Hells Angels”]; People v. Albarran (2007) 149 Cal.App.4th 214, 228 [admission of gang evidence prejudicial where “[e]vidence of threats to kill police officers, descriptions of the criminal activities of other gang members, and reference to the Mexican Mafia had little or no bearing on any other material issue relating to Albarran’s guilt on the charged crimes and approached being classified as overkill”].)
IV. Appellant Was Not Prejudiced by the Trial Court’s Failure to Instruct that His Out-of-Court Statements Should be Viewed with Caution.
After Devery testified that she did not remember whether the shooter said anything to Morales and her as he pointed the gun at them, the People introduced evidence of both her statement to Deputy Fallon that appellant said “‘where is my shit’ or ‘my stereo’?” and her statement during her interview with the prosecutor and Detective Martindale that appellant said “‘[w]here’s my shit bitch!’” In view of this evidence, appellant contends that the trial court prejudicially erred by failing to instruct the jury, pursuant to CALCRIM. No. 358, that it should view his out-of-court statements with caution. Though the People concede that the evidence supported the giving of the instruction, they contend that reversal is unwarranted because appellant was not prejudiced by the omission.
“When the evidence warrants, the court must instruct the jury sua sponte to view evidence of a defendant’s oral admissions or confession with caution. [Citations.]” (People v. Dickey (2005) 35 Cal.4th 884, 905.) The purpose of the instruction is to assist the jury in determining whether the defendant in fact made the statement. (Ibid.; People v. Carpenter, supra, 15 Cal.4th at p. 393, superseded by statute on another point as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107.) We review the failure to give the instruction under “‘the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given. [Citations.]’” (People v. Dickey, supra, at p. 905; accord, People v. Wilson (2008) 43 Cal.4th 1, 19.) “‘Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]’ [Citation.]” (People v. Dickey, supra, at p. 905.)
Here, it is not reasonably probable the jury would have reached a result more favorable to appellant had the cautionary instruction been given. The content of his statement—that is, whether appellant asked for the return of his stereo or whether he used an expletive—was not an issue in dispute. Rather, appellant’s principal defense was that he was not the shooter and thus could not have made any statement to Devery and Morales. Where there is no conflict in the evidence about the content of the statement, “but simply a denial by the defendant that he made the statements attributed to him, we have found failure to give the cautionary instruction harmless. [Citation.]” (People v. Dickey, supra, 35 Cal.4th at p. 906.) As explained in People v. Wilson, supra, 43 Cal.4th at pages 19 through 20, when the defendant denies making the statement, the issue becomes whether the attributing witness is credible or whether she fabricated the testimony about what the defendant said to her. (See also People v. Bunyard (1988) 45 Cal.3d 1189, 1225–1226.)
For this reason, the cases on which appellant relies are inapposite. (See People v. Ford (1964) 60 Cal.2d 772, 799, 800 [prejudicial error to omit cautionary instruction where evidence relating to the defendant’s statements conflicted and the statements “constituted a substantial part of the evidence offered to establish the prosecution’s theory that the shooting” was premeditated and deliberated], overruled on other grounds in People v. Satchell (1971) 6 Cal.3d 28, 35–36; People v. Lopez (1975) 47 Cal.App.3d 8, 14 [prejudicial error to omit cautionary instruction where evidence concerning the statements was conflicting and the statements had a vital bearing on the only substantial issue the jury was required to resolve].)
Here, the jury was thoroughly instructed on how to evaluate the credibility of witnesses, receiving specific instructions to consider the witness’s attitude about testifying and whether the witness had made prior inconsistent statements. (People v. Wilson, supra, 43 Cal.4th at p. 20; People v. Dickey, supra 35 Cal.4th at p. 906; People v. Bunyard, supra, 45 Cal.3d at pp. 1225–1226.) Moreover, appellant’s counsel was able to highlight the inconsistencies in Devery’s statements during cross-examination. Accordingly, during closing argument, appellant’s counsel argued that the jury had every reason to question Devery’s credibility, particularly in connection with her identification of appellant to Deputy Fallon. Appellant’s efforts to discredit Devery’s testimony, coupled with the jury instructions directing the jury how to evaluate witness credibility, adequately conveyed to the jury that Devery’s inconsistencies should be viewed with caution. (See People v. Bunyard, supra, at pp. 1224–1225.) It is not reasonably probable that the addition of an instruction to view appellant’s statements with caution would have yielded a result more favorable to appellant.
V. The Abstract of Judgment Should be Corrected to Reflect 2, 340 days of Presentence Custody Credit.
The People contend—and appellant does not dispute—that appellant should not have received 351 days of conduct credit in addition to his 2, 340 of custody credit. We agree.
A defendant convicted of murder is entitled to credit for time spent in actual custody prior to sentencing, but is not entitled to any conduct credit. (§ 2933.2; People v. Wheeler (2003) 105 Cal.App.4th 1423, 1431–1432; People v. Herrera (2001) 88 Cal.App.4th 1353, 1366.) An incorrect calculation of custody credit results in an unauthorized sentenced that may be corrected at any time. (People v. Duran (1998) 67 Cal.App.4th 267, 270.) Accordingly, we order the abstract of judgment modified to reflect credit only for appellant’s actual time spent in presentence custody. (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1284 [where a sentence is unauthorized, it is subject to judicial correction whenever the error comes to the attention of the trial or reviewing court, including when the People raise the issue on a defendant’s appeal].)
Though the general rule is that the miscalculation of custody credits should first be raised in the trial court, we may resolve the issue in the interest of judicial economy where there are already other appellate issues to be determined. (People v. Jones (2000) 82 Cal.App.4th 485, 493.)
DISPOSITION
The abstract of judgment is modified to award appellant 2, 340 days of presentence custody credit, with no days of conduct credit. The clerk of the Superior Court of Los Angeles County is directed to prepare an amended abstract of judgment reflecting this correction and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.