Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05NF1420, Richard F. Toohey, Judge.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Andrew Richard Gonzalez appeals from a judgment after a jury convicted him of four counts of attempted murder of a peace officer, four counts of assault with a firearm on a peace officer, street terrorism, and possession of a firearm by a felon, and found true numerous firearm and street terrorism enhancements. He contends: (1) insufficient evidence supports his convictions for attempted murder of a peace officer and assault with a firearm on a peace officer, and the jury’s finding he committed two of the murders for the benefit of a criminal street gang; (2) the trial court erroneously failed to appoint new counsel to litigate a new trial motion; (3) admission of his “rap sheets” to prove his prior convictions violated his Sixth Amendment confrontation rights; and (4) the court erroneously sentenced to him to four 10-year terms on the street terrorism enhancement rather than the 15-year minimum parole eligibility date. Although Gonzalez did not raise the issue, we requested the parties file supplemental briefing on the issue of whether the expert gang witness impermissibly testified as to Gonzalez’s subjective knowledge and intent.
As we explain below, we conclude his sentencing claim has merit and we affirm his sentence as modified. Although we conclude the expert gang witness improperly testified as to Gonzalez’s subjective knowledge and intent, we conclude he was not prejudiced. In all other respects, the judgment is affirmed.
FACTS
Officer John Jaime of the La Habra Police Department was driving a marked patrol car when he saw two men get out of a white Toyota 4Runner and leave both doors open. Jaime waited for the men to return to the vehicle and drive away, and because the vehicle’s registration was expired, he turned on his car’s overhead lights to conduct a traffic stop. Jaime spoke with the men, and he radioed in their information and requested backup. David Mosqueda was the driver and Gonzalez the passenger. Approximately 13 minutes later, Officer Kirk Lotzgesell arrived, and the officers asked Mosqueda to get out of the vehicle and sit on a greenbelt. As Jaime walked back to his patrol car, and Lotzgesell stood near the right front passenger door where Gonzalez remained seated, police dispatch radioed to the officers there was a warrant for Gonzalez’s arrest. Lotzgesell told Gonzalez to stay in the vehicle, and Jaime headed back towards the vehicle.
As Jaime did, he heard Lotzgesell yell, “‘John boy, gun[.]’” Gonzalez kicked the door open, got out of the vehicle, and opened fire on the officers. Gonzalez shot Jaime in the abdomen, and Jaime dove behind the vehicle. Lotzgesell unholstered his weapon and returned fire. Gonzalez ran and Lotzgesell chased him, both shooting at each other. Lotzgesell eventually stopped chasing Gonzalez because Jaime had been shot and Mosqueda was still at the scene. Lotzgesell radioed in Gonzalez’s description. Lotzgesell later realized he too had been shot.
Officers Roy Ellison and Michael Kendrick of the Fullerton Police Department assisted in the search for Gonzalez, who officers had determined was hiding in a travel agency. Upon arriving at the agency and seeing numerous officers positioned at the front, Ellison and Kendrick volunteered to cover the back. Once positioned, the back door swung open and Gonzalez ran out. He pulled a handgun from his waistband and fired at the officers, and they returned fire. Gonzalez charged the officers, threw his gun at Kendrick, and reached into his waistband. Kendrick charged Gonzalez, tackled him, and hit him on the back of the head with his gun. Gonzalez continued to struggle, and Kendrick hit him again. Gonzalez grabbed Kendrick’s thumb and bent it. Ellison and Kendrick eventually subdued Gonzalez.
A third amended information charged Gonzalez with four counts of attempted murder of a peace officer (Pen. Code, §§ 664, subd. (e), 187, subd. (a)) (count 1-Officer John Jaime; count 2-Officer Kirk Lotzgesell; count 3-Officer Michael Kendrick; count 4-Officer Roy Ellison), four counts of assault with a firearm on a peace officer (§ 245, subd. (d)(1)) (count 5-Officer John Jaime; count 6-Officer Kirk Lotzgesell; count 7-Officer Michael Kendrick; count 8-Officer Roy Ellison), street terrorism (§ 186.22, subd. (a)) (count 9), and possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 10). The information alleged multiple enhancements: as to counts 1, 2, 5, and 6, personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)); with respect to counts 3, 4, 7, and 8, personal discharge of a firearm (§ 12022.53, subd. (c)); as to all the counts except 9 and 10, personal use of a firearm (§ 12022.5, subd. (a)); and with respect to all the counts except 9, the street terrorism enhancement (§ 186.22, subd. (b)(1)). The information also alleged Gonzalez suffered two prior strike convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subd. (b), (c)(2)(A)), suffered a prior serious felony conviction (§ 667, subd. (a)(1)), and served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, Jaime testified that two weeks after the incident, the prosecutor interviewed him. He told the prosecutor that he believed Lotzgesell heard the dispatcher’s report there was a warrant for Gonzalez’s arrest because he had a radio. Jaime also stated he believed Gonzalez heard the dispatcher’s report because the vehicle’s window was down.
The prosecutor also offered the testimony of Edward Wood, a district attorney investigator, who testified as an expert on criminal street gangs. After detailing his background, training, and experience, Wood testified concerning the culture and habits of traditional, turf-oriented criminal street gangs. He explained the significance of tattoos, the importance of guns, violence, and respect, and the adulation that comes with killing a law enforcement officer. He detailed the history of “Inglewood 13,” their membership and identifying symbols, and their primary activities and past offenses. He testified concerning gang letters, Gonzalez’s many tattoos, and law enforcement reports. He also testified concerning three letters Gonzalez wrote to Inglewood 13 gang members while he was in jail. In one of the letters, Gonzalez boasted to another gang member “about his incident in La Habra.” Based on the circumstances of the case, letters, tattoos, and reports, Wood opined Gonzalez was an active participant in Inglewood 13 at the time of the incident. He also opined Gonzalez committed the charged offenses for the benefit of Inglewood 13. Finally, he opined Gonzalez committed the charged offenses to assist Inglewood 13. On cross-examination, when presented with a hypothetical mirroring the facts of this case, Wood admitted Gonzalez’s conduct in getting out of the car and firing at the officers was consistent with a person fleeing.
Gonzalez offered the testimony of Investigator Ron Seman. Seman testified he visited Gonzalez at the hospital and saw he had approximately six gunshot wounds and a laceration on his head. He explained that someone from the Orange County crime lab conducted a gunshot residue test on Gonzalez’s hands, but he did not know the results.
The jury convicted Gonzalez of all the counts and found true all the enhancements. At a bifurcated bench trial, the trial court found Gonzalez suffered two prior strike convictions and a serious felony conviction, but there was insufficient evidence he served a prior prison term within the meaning of section 667.5, subdivision (b).
At the sentencing hearing, the trial court noted defense counsel filed a motion to continue that morning. Defense counsel requested a continuance so another attorney, “Mr. Romney,” could “assess the possible defense -- or grounds for [a] motion for new trial in terms of ineffective assistance of counsel because there was no issue of [Gonzalez’s] mental state that was brought up.” Counsel requested a two- or three-week continuance “so that . . . Romney can look into it.” Romney was present and prepared to make an offer of proof, but he had not been retained and it would take about two weeks to do so. The trial court denied the motion to continue concluding there was no good cause.
The trial court sentenced Gonzalez to a total term of 235 years to life in state prison as follows: on count 1, 25 years to life, 25 years for personally discharging a firearm causing great bodily injury, and 10 years for the street terrorism enhancement; on count 2, the same sentence as count 1 to run consecutively; on count 3, 25 years to life, 20 years for personally discharging a firearm, and 10 years for the street terrorism enhancement; on count 4, the same sentence as count 3 to run consecutively; and 5 years for the prior serious felony conviction. Pursuant to section 654, the court stayed the sentences on counts 5 through 8. The court sentenced Gonzalez to concurrent terms on counts 9 and 10.
DISCUSSION
I. Sufficiency of the evidence
A. Peace officer
Gonzalez argues insufficient evidence supports his convictions on counts 1 through 8 because there was no evidence Jaime, Lotzgesell, Ellison, and Kendrick were “peace officers” as statutorily defined in section 830.1. Specifically, he claims there was no evidence these officers were “appointed by the chief of police or chief, director, or chief executive of a public safety agency[.]” As we explain below, the only reasonable inference to be drawn from the evidence at trial was the officers were “peace officers” as statutorily defined.
“In determining the sufficiency of evidence, we must review the whole record in the light most favorable to the judgment to see whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Whether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Lara (1994) 30 Cal.App.4th 658, 665 (Lara).)
Counts 1 through 4 charged Gonzalez with attempted murder of a peace officer and counts 5 through 8 assault with a firearm on a peace officer. Section 830.1, subdivision (a), states, in relevant part: “[A]ny police officer, employed in that capacity and appointed by the chief of police or chief, director, or chief executive of a public safety agency, of a city . . . is a peace officer.”
In Lara, supra, 30 Cal.App.4th at pages 664-665, the court addressed defendant’s claim insufficient evidence supported his convictions because there was no evidence the victim officers were “‘peace officers’” pursuant to section 830.1. The court stated, “Section 830.1 provides, in relevant part that ‘any police officer, employed in that capacity and appointed by the chief of police or the chief executive of the agency, of a city . . . is a peace officer.’ [Citation.]” The court noted that prior to 1990, section 830.1 “provided, in relevant part, ‘any police officer of a city . . . is a peace officer.’” (Id. at p. 665.) After explaining the “apparent purpose of [the] change[,]” the court interpreted “the statutory definition to confer peace officer status on any person officially hired to be a police officer by a city agency (i.e., appointed as and given the duties of a police officer by an official of a city agency authorized to do so).” (Id. at p. 666, fn. omitted.) The court opined: “We consider unreasonable a literal interpretation of the statute, under which the only police officers who could be considered ‘peace officers’ would be those actually, directly, and personally hired (i.e., appointed) by the chief of police or chief executive officer of an agency. Such a construction would deny peace officer status to those who may be hired via a proper and legitimate delegation of appointing authority. Rather, as discussed above, we read the statutory language in light of its purpose, which is to define ‘peace officers’ to include only those police officers, who are officially hired as such by a city agency. [Citation.]” (Id. at p. 666, fn. 2.) The court stated the officers testified they were employed by and worked for the city police department, and on the night of the incident were on patrol, in a marked car, in uniform. The court concluded the officers’ testimony was sufficient evidence they were employed as peace officers. (Id. at p. 666.) Based on Evidence Code section 664’s presumption an official duty has been regularly performed, the court reasoned the regular assignment of police duties to the officers and their actual employment as police officers by the city “supports a logical and reasonable inference, based on probability not possibility, that these officers had been officially hired as and given the duties of police officers by the San Jose Police Department, an agency of the city.” (Lara, supra, 30 Cal.App.4th at p. 666, citation omitted.) The court concluded the only reasonable inference was the officers were “‘peace officers.’” (Id. at p. 667.)
Here, Jaime and Lotzgesell each testified the City of La Habra employed them as police officers at the time of the incident, and they were in uniform and in marked patrol cars. Ellison and Kendrick each testified the Fullerton Police Department employed them as police officers at the time of the incident, and Kendrick stated he was wearing a patrol jacket identifying him as a police officer. Indeed, Gonzalez concedes they were members of their respective police departments. And he does not dispute the fact the officers were engaged in their regularly assigned duties. The only reasonable inference was Jaime, Lotzgesell, Ellison, and Kendrick were “‘peace officers’” as defined in section 830.1. (Lara, supra, 30 Cal.App.4th at pp. 666-667.)
Gonzalez criticizes Lara, supra, 30 Cal.App.4th 658, on three grounds: (1) the Lara court violated fundamental principles of statutory construction in reading the “appointment” phrase out of section 830.1; (2) the Legislature’s subsequent amendments to section 830.1 show the Lara court was wrong; and (3) the California Supreme Court in People v. Flood (1998) 18 Cal.4th 470 (Flood), overruled Lara.
First, the Lara court did not violate fundamental principles of statutory construction. The Lara court interpreted section 830.1 in light of the “apparent purpose” of the then recent amendment and explained it would be unreasonable to conclude the Legislature intended only police officers who were actually, directly, and personally hired (i.e., appointed) by the chief of police or chief executive officer of an agency to be “peace officers.” The Lara court interpreted section 830.1 based on its legislative history to avoid reaching an unreasonable interpretation of the statute; it did not read anything out of the section.
Second, the Legislature’s subsequent amendments to section 830.1 do not demonstrate the Lara court erred in its interpretation of section 830.1. Although Gonzalez does not indicate which amendment he is referring to, he claims the Legislature’s inclusion of the language the Lara court deleted and its addition of “director” to the list of persons who may appoint a “peace officer” demonstrates the Lara court was wrong. As we explain above, the Lara court did not delete any language from section 830.1, but interpreted section 830.1’s language based on its legislative history. And, the addition of a person with the “appointment” power does not lead to the conclusion the Lara court was wrong in its interpretation of the “appointment power.”
The 1998 amendment to section 830.1 added “director.” (Stats. 1998, ch. 931, § 365.5, p. 5225.)
Finally, Flood, supra, 18 Cal.4th 470, did not overrule Lara. In Flood, the California Supreme Court addressed the issue of whether it was prejudicial error when the trial court failed to instruct the jury on the definition of “‘peace officer’” when it was an element of the crime. (Id. at p. 475.) In concluding the error was harmless, the court stated: “Although . . . section 830.1 provides that a police officer of a city must be ‘appointed by the chief of police or the chief executive of the agency’ to be a peace officer, defendant does not contend that the prosecution was required to present evidence of such appointment to prove [the officers] were peace officers. In . . . Lara[, supra, ] 30 Cal.App.4th [at pages] 665-667 . . ., the Court of Appeal specifically rejected such a contention as ‘unreasonable,’ concluding that in light of the purpose of the statute and the presumption that official duty regularly has been performed [citation], evidence that officers were employed by a city as police officers established their status as peace officers under . . . section 830.1.” (Id. at pp. 490-491, fn. 13.) Needless to say, the Flood court did not address the issue presented here. Therefore, there was sufficient evidence Jaime, Lotzgesell, Ellison, and Kendrick were “peace officers” as defined in section 830.1.
B. Street terrorism enhancement-counts 1 and 2
Gonzalez argues insufficient evidence supports the jury’s findings he committed counts 1 and 2 for the benefit of a criminal street gang because his shooting at Jaime and Lotzgesell was nothing more than a “spur-of-the-moment decision[]” to evade arrest when he heard there was a warrant for his arrest. By way of his supplemental brief, Gonzalez also contends Wood impermissibly testified as to his subjective knowledge and intent. We conclude there was sufficient evidence supporting the street terrorism enhancements, and although portions of Wood’s testimony were improper, Gonzalez was not prejudiced by their admission.
Section 186.22, subdivision (b)(1), increases the punishment for gang-related crimes for “any person who 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 . . . .” In cases where gang offenses and enhancements are alleged, expert testimony regarding the culture, habits, and psychology of gangs is generally permissible because these subjects are “‘“sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. [Citations.]” [Citation.]’ [Citation.]” (People v. Killebrew(2002) 103 Cal.App.4th 644, 656 (Killebrew).) For example, an expert may properly testify “about the size, composition[,] or existence of a gang”; “motivation for a particular crime, generally retaliation or intimidation”; and “whether and how a crime was committed to benefit or promote a gang[.]” (Id. at pp. 656-657; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551 (Gonzalez) [“we find it ‘difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes “respect[]”’”].)
An expert, however, may not testify a specific individual had specific knowledge or possessed a specific intent. (Killebrew, supra, 103 Cal.App.4th at p. 658.) In Killebrew, the court held an expert’s opinion testimony was improper: “Through the use of hypothetical questions, [the expert] testified that each of the individuals in the three cars (1) knew there was a gun in the Chevrolet and a gun in the Mazda, and (2) jointly possessed the gun with every other person in all three cars for their mutual protection. In other words, [the expert] testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action. [¶] [The expert]’s testimony was the only evidence offered by the People to establish the elements of the crime. As such, it is the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded.” (Ibid.)
In People v. Gonzalez (2006) 38 Cal.4th 932, 946-947, footnote omitted, the California Supreme Court stated: “As did the court in . . . Gonzalez, supra, 126 Cal.App.4th 1539, we read Killebrew as merely ‘prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.’ [Citations.] . . . ‘Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth.”’ [Citations.]” The court explained: “[T]here is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons.” (People v. Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3.)
As to his first claim, there was sufficient evidence Gonzalez committed counts 1 and 2 with the specific intent to promote Inglewood 13. Wood explained the importance of guns, violence, and respect in gangs, and the adulation that comes with killing a law enforcement officer. He stated guns are important in gangs because they can be used to commit crimes and instill fear in the community. He opined when a gang member commits a violent act, it increases the member’s and the gang’s respect. He said gang member’s brag about crimes they commit, which elevates the member’s status within the gang. He stated there are levels of respect within a gang, and a gang member who kills a law enforcement officer would garner much respect within the gang. Based on the circumstances of the case and Wood’s testimony, the jury could reasonably conclude Gonzalez committed counts 1 and 2 with the specific intent to promote Inglewood 13.
Gonzalez relies on Wood’s testimony on cross-examination that Gonzalez’s conduct was consistent with someone simply fleeing from the police to escape arrest, and the prosecutor’s admission that was a possibility, to support his claim there was insufficient evidence supporting the street terrorism enhancements. We agree there was evidence supporting Gonzalez’s theory he was simply trying to evade arrest, but the jury rejected that explanation. And we will not substitute our evaluation of a witness’s credibility for that of the fact finder. (People v. Smith (2005) 37 Cal.4th 733, 738-742 (Smith).)
With respect to the issue we requested supplemental briefing on, we conclude Wood’s testimony was improper in part, but Gonzalez was not prejudiced. When the prosecutor asked Wood based on the facts of this case “whether the conduct that the defendant committed was done for the benefit of or in association with a criminal street gang[]” Wood responded, “Yes.” After the trial court overruled defense counsel’s objection, Wood explained he based his opinion on the facts of the case “the demeanor of the defendant during the facts that were presented in the facts of this case, as well as research of his background and his tattoos, and his affiliation with the criminal street gang Inglewood 13.” (Italics added.) When the prosecutor asked Wood whether the“ conduct in this case was done to promote, further, or assist criminal conduct by gang members[]” Wood replied, “[m]y opinion that this conduct was to assist criminal street gang members from Inglewood 13.” (Italics added.)
Generally, when a prosecutor attempts to establish the requisite street terrorism elements, the prosecutor asks the witness to assume certain facts are true and then express opinions in response to specific questions. Although this is not the only method to establish the statutory elements, it is the most common practice. Here, the prosecutor attempted to do so, but then mentioned “the defendant.” Wood opined, “the defendant” committed the crime to benefit Inglewood 13, and the “conduct in this case” was done to promote Inglewood 13. Wood impermissibly testified concerning Gonzalez’s subjective knowledge and intent. However, we conclude Gonzalez was not prejudiced. (People v. Champion (1995) 9 Cal.4th 879, 922-923, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.) Had the prosecutor’s hypothetical been properly phrased, there would have been the same result. There was overwhelming evidence from which the jury could conclude all the statutory elements were satisfied beyond a reasonable doubt.
II. Motion to continue/motion for new trial—ineffective assistance of counsel
In his opening brief, Gonzalez argues “the trial court abused its discretion in refusing to appoint a new counsel to litigate the new trial motion based on ineffective assistance of counsel.” The Attorney General contends Gonzalez did not move for a new trial or for the appointment of new counsel, and the court did not abuse its discretion in denying Gonzalez’s motion for continuance. In his reply brief, Gonzalez concedes he did not bring a new trial motion, but claims “‘the trial court erred in refusing to inquire into the basis for [his] obvious concern about the representation he had received . . . .’” We agree with the Attorney General.
Although it is not included in the clerk’s transcript, the record we do have indicates that on the day of sentencing, May 18, 2007, Gonzalez filed a motion to continue, supported by a declaration from defense counsel. At the sentencing hearing, defense counsel stated he had received information from Romney and asked the court to hear Romney as to the basis for a three-week continuance. The court ruled there was no good cause to continue the matter, stated it was the first time it was made aware such a request had been made, and denied the motion to continue. Defense counsel stated, “. . . Romney apparently believes that he -- that we need about three weeks so that he can assess the possible defense -- or grounds for [a] motion for new trial in terms of ineffective assistance of counsel because there was no issue of [Gonzalez’s] mental state that was brought up.” Counsel requested a two- or three-week continuance “so that . . . Romney can look into it.” Romney was present and prepared to make an offer of proof, but Gonzalez’ family had not retained him and “[i]t would take about two weeks for the family to resolve that.” (Italics added.) The trial court stated, “[t]he ruling stands.”
Relying on People v. Marsden (1970) 2 Cal.3d 118, and its progeny, Gonzalez argues the trial court should have inquired into “‘[his] obvious concern about the representation he had received . . . .’” We disagree.
“When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.]” (People v. Diaz (1992) 3 Cal.4th 495, 573-574.)
Gonzalez concedes he did not file a motion for a new trial. And, he did not ask the trial court to appoint new counsel or file a motion to substitute in retained counsel. The record clearly demonstrates Gonzalez requested a continuance. Where defense counsel merely requested a continuance to explore the “possibility” of filing a new trial motion based on a claim of ineffective assistance of counsel, a trial court is under no duty to conduct a hearing to explore the reasons underlying a “possible” claim. Contrary to Gonzalez’s assertion, he did not inform the trial court he “wished to file a new trial motion[.]”
With respect to the motion for a continuance, Gonzalez does not discuss the analytical framework for litigating such a motion. Nevertheless, we will briefly address the issue because it is what he raised below and is the basis of his claim now.
“‘A continuance will be granted for good cause (§ 1050, subd. (e)), and the trial court has broad discretion to grant or deny the request. [Citations.] In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.]’” (People v. Smithey (1999) 20 Cal.4th 936, 1011-1012.) The burden is on the defendant to establish an abuse of discretion. (People v. Samayoa (1997) 15 Cal.4th 795, 840.)
Here, the jury convicted Gonzalez on February 8, 2007, and 99 days later, on the day the trial court was to sentence Gonzalez, defense counsel filed a motion for continuance. As we explain above, the clerk’s transcript does not include the motion or counsel’s affidavit so we are unaware of any reason for the delay. And, at the sentencing hearing, counsel did not offer any reason when the court asked if he wished to add anything beyond what was in his affidavit. Therefore, we cannot conclude the trial court abused its discretion in concluding Gonzalez did not establish there was good cause for a continuance.
Additionally, Gonzalez’s family had not yet retained Romney, a matter that would take approximately two additional weeks. A trial court has the inherent authority to maintain the orderly process of its court (§ 1093; Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1092-1093), and without a proper showing, is not required to delay the conclusion of a proceeding when Gonzalez had more than ample time to hire new counsel and litigate a new trial motion. Gonzalez is not without a remedy for his claim of ineffective assistance of counsel. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [“claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding”].)
III. Prior convictions
A. Rap Sheets-6th Amendment confrontation
Relying on Crawford v. Washington (2004) 541 U.S. 36 (Crawford), Gonzalez contends the trial court erroneously admitted his “rap sheets” to prove his prior conviction because it violated his Sixth Amendment confrontation rights. The Attorney General claims Gonzalez forfeited appellate review of this issue because he did not object on constitutional grounds at trial, and there was no violation of his confrontation rights. Gonzalez contends he did not forfeit appellate review of this issue because he objected on hearsay grounds. We agree with the Attorney General that Gonzalez forfeited appellate review of this issue, but will address the substance of his claim for the sake of judicial economy. (People v. Chaney (2007) 148 Cal.App.4th 772, 780 (Chaney).)
In Chaney, supra, 148 Cal.App.4th at page 779, a different panel of this court explained a Sixth Amendment confrontation clause analysis under Crawford, supra, 541 U.S. 36, “is distinctly different than that of a generalized hearsay problem.” This court held defendant waived his claim the trial court denied his Sixth Amendment confrontation clause right because he objected on the grounds he was unable to cross-examine the declarant. (Chaney, supra, 148 Cal.App.4th at p. 779; People v. Alvarez (1996) 14 Cal.4th 155, 185-187 (Alvarez).)
Gonzalez notes in Chaney, supra, 148 Cal.App.4th 772, this court relied on Alvarez, supra, 14 Cal.4th 155, and in light of People v. Yeoman (2003) 31 Cal.4th 93 (Yeoman), People v. Sakarias (2000) 22 Cal.4th 596 (Sakarias), People v. Reed (1996) 13 Cal.4th 217 (Reed), People v. Rodrigues (1994) 8 Cal.4th 1060 (Rodrigues), People v. Arreola (1994) 7 Cal.4th 1144 (Arreola), Alvarez is no longer good law.
First, the California Supreme Court decided Reed, Rodriguez, and Arreola before Alvarez. Second, Yeoman and Sakarias did not overrule Alvarez, and neither examined the forfeiture issue within the context of the Sixth Amendment confrontation clause. Although Gonzalez did not object to admission of his “rap sheets” on confrontation grounds and he therefore forfeited appellate review of this issue, we will address the merits of his claim.
In Crawford, supra, 541 U.S. at page 38, the United States Supreme Court addressed the issue of whether the admission of a spouse’s tape-recorded statement describing a stabbing without the defendant’s opportunity to cross-examine the spouse violated the defendant’s Sixth Amendment confrontation rights. The Court held out-of-court statements that are testimonial in nature are inadmissible unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant. (Id. at p. 64.) The Court explained, however, that “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether . . . . We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’” (Id. at p. 68, fn. omitted.)
Although the Court declined to provide a comprehensive definition of “‘testimonial[,]’” it did provide illustrations of statements that could be considered “‘testimonial’”: “‘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’”; “‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions’”; “‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’”; and police interrogations. (Crawford, supra, 541 U.S. at pp. 51-52.) The Court stated that at the very least “‘testimonial’” means “testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Id. at p. 68.) In discussing whether the historical sources supported the conclusion there were exceptions to the general rule of exclusion of hearsay evidence, the Court noted most of the hearsay exceptions covered statements that were not “‘testimonial’” such as business records. (Id. at pp. 53-56.)
In People v. Taulton (2005) 129 Cal.App.4th 1218 (Taulton), a different panel of this court concluded records of prior convictions as defined in section 969b were not “‘testimonial’” within the meaning of Crawford. The Taulton court relied on Crawford’s statement “business records” were not “‘testimonial’” in determining whether records of prior convictions were “‘testimonial.’” (Taulton, supra, 129 Cal.App.4th at p. 1222.) The court explained the purpose of business records “is to prepare a record of an act or event pertaining to a business,” but not to provide evidence in a potential criminal trial or to determine whether criminal charges should be filed. (Id. at p. 1224.) The court explained the fact business records may “become relevant evidence in a criminal trial, . . . does not change the purpose for which the records were prepared.” (Ibid.) The court concluded, “[a] similar analysis should be applied to official records.” (Ibid.; Evid. Code, § 1280.)
Section 969b states, “For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor[e] in any penal institution, or has been convicted of an act in any other state, which would be punishable as a crime in this State, and has served a term therefor[e] in any state penitentiary, reformatory, county jail or city jail, or has been convicted of an act declared to be a crime by any act or law of the United States, and has served a term therefor[e] in any penal institution, the records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence.”
In applying the analysis to official records, the Taulton court stated, “Evidence Code section 1280, subdivision (a)[,] recognizes an exception to the hearsay rule for writings ‘made by and within the scope of duty of a public employee.’ Most . . . documents are like business records in that they are prepared to provide a chronicle of some act or event relating to the public employee’s duty. . . . [However,] [s]ome public records, particularly police records of interrogations, would clearly fit the definition of ‘testimonial statements,’ as they are produced to be used in a potential criminal trial or to determine whether criminal charges should issue. But to the extent that public records are not prepared for this purpose, they are subject to the same analysis as business records and would not constitute ‘testimonial statements.’” (Taulton, supra, 129 Cal.App.4th at p. 1225.) The court opined section 969b records “are prepared to document acts and events relating to convictions and imprisonments.” The court concluded: “Although they may ultimately be used in criminal proceedings, as the documents were here, they are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue.” (Ibid.)
Based on Taulton, the introduction and admission of Gonzalez’s “rap sheets” did not violate his Sixth Amendment confrontation rights because the “rap sheets” are official records prepared to provide his criminal history. “Rap sheets” may ultimately be used as evidence in a criminal trial, as they were here, but they are not prepared for that purpose.
Gonzalez relies on People v. Geier (2007) 41 Cal.4th 555 (Geier), to argue Taulton, supra, 129 Cal.App.4th 1218, is no longer good law. In Geier, supra, 41 Cal.4th at page 605, the California Supreme Court applying Crawford and another Supreme Court case, Davis v. Washington (2006) 547 U.S. 813, stated: “For our purposes in this case, involving the admission of a DNA report, what we extract from those decisions is that a 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.”
First, Geier did not overrule Taulton. Second, Geier involved the admission of scientific evidence, a DNA report, and based on its language, appears to have limited its holding to this type of evidence. Geier did not concern the admission of a “rap sheet” to prove a prior conviction. Finally, to the extent Geier is relevant here, the court, citing People v. Cage (2007) 40 Cal.4th 965, 984, and footnote 14, reaffirmed “the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial.” “Rap sheets” are not prepared primarily for the purpose of proving prior convictions, but instead to document events relating to convictions. Therefore, admission of Gonzalez’s “rap sheets” did not violate his Sixth Amendment confrontation rights.
B. Sufficiency of the evidence
In his opening brief, Gonzalez claims there was insufficient evidence he suffered the prior convictions because the “rap sheet” did not connect the “Andrew Gonzalez referred to in the rap sheet with the defendant here[.]” The Attorney General argues there was sufficient evidence Gonzalez suffered the prior convictions because the prosecutor also introduced a booking photograph of Gonzalez that included his full name and date of birth. In his reply brief, Gonzalez agrees with the Attorney General and withdraws his claim. We need not discuss it further.
IV. Sentence-Street terrorism enhancements
Gonzalez contends the trial court erroneously sentenced him to four consecutive 10-year terms for the street terrorism enhancement because the sentence for the counts upon which they attached were life terms. Based on People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), the Attorney General concedes this issue.
Section 186.22, subdivision (b)(1), provides: “Except as provided in paragraphs (4) and (5), any person who 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: . . . . [¶] . . . [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of [s]ection 667.5, the person shall be punished by an additional term of 10 years.” (Italics added.) Section 186.22, subdivision (b)(5) states: “[A]ny person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.”
Here, as to counts 1 through 4, the trial court sentenced Gonzalez to four consecutive terms of 25 years to life in state prison. Because the court sentenced Gonzalez to an indeterminate term of life in prison on these counts, the limitation upon parole eligibility provided for in section 186.22, subdivision (b)(5), is applicable. Based on the express language in section 186.22, subdivision (b)(1), the 10-year enhancement is inapplicable. (Lopez, supra, 34 Cal.4th at pp. 1004, 1007.) Therefore, the trial court erred in imposing 10-year enhancements pursuant to section 186.22, subdivision (b)(1)(C), as to counts 1, 2, 3, and 4. Instead, the court should have imposed a limitation upon Gonzalez’s minimum parole eligibility pursuant to section 186.22, subdivision (b)(5), with respect to those counts.
The 10-year gang enhancements imposed on counts 1, 2, 3, and 4 pursuant to section 186.22 are ordered stricken. The abstract of judgment is modified to reflect the striking of the enhancements and the imposition of the 15-year minimum parole eligibility dates on counts 1, 2, 3, and 4 pursuant to section 186.22, subdivision (b)(5).
DISPOSITION
The 10-year enhancements imposed on counts 1, 2, 3, and 4 pursuant to section 186.22, subdivision (b)(1)(C), are ordered stricken. The abstract of judgment is modified to reflect a sentence of 195 years to life by striking the enhancements and imposing the 15-year minimum parole eligibility dates on counts 1, 2, 3, and 4 pursuant to section 186.22, subdivision (b)(5). The clerk of the superior court is ordered to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. We affirm the judgment as modified.
WE CONCUR MOORE, J., FYBEL, J.