Opinion
F072622
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. SEAN EMORY GRISSOM, Defendant and Appellant.
Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRM027056A)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Sean Emory Grissom stands convicted of aggravated assault and active participation in a criminal street gang. The offenses were committed inside of a jail housing unit designated for Norteño gang members and associates. The trial court imposed a 16-year prison sentence, which included a 10-year gang enhancement.
The main issues on appeal concern the holdings of People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde) [restricting use of admissions of gang membership made during jail intake interviews] and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) [restricting use of hearsay in expert witness testimony]. Both opinions were published subsequent to the trial proceedings below. Defendant correctly assigns error to the admission of certain testimony by the People's gang expert, but, as we explain, the errors were harmless.
There are additional claims of insufficient evidence and sentencing error. Those arguments are not persuasive. Finding no grounds for reversal, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with committing assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1); assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2); and active participation in a criminal street gang (§ 186.22, subd. (a); count 3). Counts 1 and 2 were alleged to be gang-related for purposes of section 186.22, subdivision (b). The same counts included enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)) and personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)). The case was tried before a jury in May 2015.
Unless otherwise specified, all statutory references are to the Penal Code.
A second individual, Rodolfo Raul Gomez, was originally named as a codefendant. He pleaded no contest to assault with a deadly weapon and active participation in a criminal street gang. In exchange for his plea, Gomez received a prison sentence of seven years eight months.
Joshua Collins, a correctional officer for the Merced County Sheriff's Department, testified the subject incident occurred at the county jail in a housing area strictly reserved for members and associates of the Norteño criminal street gang. He explained the screening process: "When an inmate is brought into custody they're interviewed multiple times. At one point, they're given an intake questionnaire. They answer that with the booking officer. That's then given to a classification officer. The classification officer goes through the inmate's background, criminal history, prior housing units, where they've housed before, and that determines—we conduct an interview with the inmates, and that determines where the inmate goes after that." Gang members are segregated for safety reasons.
On March 13, 2013, defendant was housed in a "Norteño cell block" with nine other cellmates, including Rodolfo Gomez and the victim, F.R. The incident occurred in a common area between two open cells. Shortly before 1:00 p.m., Officer Collins entered the cell block and saw defendant and Gomez "hunched over" F.R., "assaulting him in a stabbing motion multiple times." Upon seeing the officer, Gomez "immediately jumped up" and kicked F.R. in the head. Both assailants were ordered to move away from the victim but only Gomez complied. Defendant "continued to strike the victim one more time—or two times, and then got up [¶] ... [¶] ... and then proceeded to kick the victim in the head." Officer Collins used a Taser to subdue defendant and stop the assault. Both attackers were then detained and removed from the area. The victim was taken to a medical office inside of the jail and later transported to the hospital.
California Rules of Court, rule 8.90(b)(4) directs us to protect the personal privacy interests of victims in criminal proceedings.
By the time detectives responded to the scene, the area had been cleaned. Officer Collins's testimony implied the perpetrators' cellmates destroyed whatever evidence had been left behind. Although many of the cellmates witnessed the altercation, none were willing to speak with investigators about what they had seen.
The victim sustained multiple "puncture wounds" to his neck and back, as well as various cuts and swelling around one of his eyes. The jury was shown photographs of the injuries. The victim's bloody and hole-riddled clothing was also admitted into evidence. Based on testimony regarding the stabbing motions made by defendant and Gomez, the prosecution theorized "both attackers had a weapon."
F.R. was subpoenaed to testify as a prosecution witness but proved uncooperative, essentially claiming amnesia. He also denied being a gang member. However, he admitted to having been placed in Norteño housing units on multiple occasions following various arrests.
Officer Vicente Villegas of the California Highway Patrol testified as the People's gang expert. He was a member of the Merced County Gang Task Force, which he joined in 2012, and had "in excess of a hundred hours of formal classroom training" with regard to criminal street gangs. Officer Villegas testified to the existence of a criminal street gang known as the Norteños, which is connected to the Nuestra Familia prison gang, and to his knowledge of the gang's primary activities.
To establish the "pattern of criminal gang activity" required for the gang participation charge and related enhancements (§ 186.22, subd. (f); see further discussion, post), the People introduced certified copies of court records relating to Gomez and someone named Dion Mays. The documents showed Gomez had two prior convictions for felony assault in violation of section 245, one of which stemmed from his involvement in the attack on F.R. Dion Mays had a prior felony conviction for unlawful firearm possession. Officer Villegas opined that Gomez and Mays were Norteño gang members. On cross-examination, he acknowledged those opinions were based on "documented reports," i.e., his review of police reports.
To establish an additional predicate offense, the People introduced certified copies of court records pertaining to defendant's August 2011 conviction for carrying a loaded firearm in public (former § 12031, subd. (a)(1)). Admitted as People's exhibit No. 125, the records showed defendant pleaded no contest to committing the crime as an active participant in a criminal street gang, which elevated the offense to a felony. (Former § 12031, subd. (a)(2)(C); People v. Lamas (2007) 42 Cal.4th 516, 519-520.) Consequently, he was ordered to register as a gang member pursuant to section 186.30.
Relying on a mix of hearsay and nonhearsay sources, Officer Villegas opined defendant was a Norteño gang member. In the nonhearsay category, the expert considered defendant's tattoo of the words "North Side," which he characterized as "a gang tattoo associated with the Norteno criminal street gang." He also relied on the circumstance of defendant being housed in a Norteño cell block.
The gang expert testified to hearsay contained in three police reports. According to those sources, there was a June 2011 incident during which defendant used Norteño slang ("'What's up, Eñe?'") while speaking with two unidentified individuals. He was reportedly arrested for a firearm offense in connection with the same incident. In July 2011, a search of defendant's residence yielded red clothing, which the expert labeled "gang indicia" because Norteños identify with the color red. In August 2012, police recovered a firearm from defendant's residence while executing a search warrant.
On cross-examination, Officer Villegas alleged the existence of "documented reports by jail staff where [defendant] claimed membership in a Norteno criminal street gang." This testimony followed defense counsel's attempt to criticize him for relying on police reports instead of "actually do[ing] some kind of research." Defense counsel later asked a followup question: "Did you talk to those people who said he claimed membership and say, 'Hey, did he really claim it, or did you tell him we're going to put you in here?' Did you talk to them about that?" Counsel was apparently caught off guard when Officer Villegas responded affirmatively, telling her, "In this instance I did talk to the correctional officer who did the classification interview. [¶] ... [¶] ... He stated that what was in his report was—was, in fact, what [defendant] said."
In response to hypothetical questions tailored to the underlying facts, Officer Villegas provided opinions regarding the gang-related nature of the assault. He described the Norteño gang as "a paramilitary type of organization" with a structured hierarchy and chain of command. Within that structure, "a gang member attacking a fellow gang member usually will not occur unless it is ... either sanctioned or specifically requested by one of the higher-ranking members of the gang," which sometimes happens as a "disciplinary action when a gang member has committed some type of rule violation." Outside of those circumstances, violence between fellow Norteños is "extremely rare," especially in a custodial setting. "[T]he Norteño organization doesn't want any fighting between its members. They have enemies that they need to stay strong to fight against, so fighting amongst themselves would make them weak."
To Officer Villegas, the facts suggested a coordinated assault ordered by higher ranking gang members as a disciplinary measure. He explained how the crime would have promoted and/or benefitted the perpetrators and their gang: "Within a correctional setting it's even more important to maintain a sense of order. If someone is in violation of a rule ..., they will be ordered disciplined. [¶] The subjects who are asked to carry out the discipline would—it would raise their status within the gang. [T]hey would be known as one of [the gang's] go-to people, someone that they know will get the job done when asked to do something. It will also help to maintain the strict order within the cell block among the gang members."
The second attacker, Gomez, testified as a defense witness. Appearing in jail clothes, he acknowledged pleading out of the case and took full responsibility for the assault. He described himself as a Norteño "affiliate," but insisted the attack was "a spur-of the moment-type thing" having "nothing to do with any type of gangs." In Gomez's version of events, he awoke from a nap to the sound of defendant and F.R. "wrestling" in the common area. Gomez was so enraged by the interruption of his sleep that he grabbed a pen and repeatedly stabbed F.R., whom he already disliked because of his "annoying" and "childish" personality. Gomez allegedly flushed his weapon down the toilet before Officer Collins entered the cell block.
Gomez was only 18 years old at the time of incident. He was almost 11 years younger than defendant and nine years younger than the victim. Despite claiming to hardly know defendant, he confirmed the two of them shared a cell for approximately 18 months following the assault on F.R. The prosecutor argued Gomez's testimony was part of a prearranged "plan to protect [defendant,] [i.e.,] protect someone from his own gang." This theory was supported by the testimony of Officer Villegas, who explained how younger gang members sometimes take the blame for crimes committed by older ones to gain trust and enhance their status within the organization.
Defendant was convicted as charged and all enhancement allegations were found to be true. At sentencing, the trial court imposed the middle term of three years for assault with a deadly weapon, which was enhanced by a consecutive three-year term for personal infliction of great bodily injury and a consecutive 10-year term for the violent felony gang enhancement (§ 186.22, subd. (b)(1)(C)). A concurrent prison sentence was imposed for count 2, and punishment for count 3 was stayed pursuant to section 654. A timely notice of appeal followed.
DISCUSSION
I. Sufficiency of the Evidence
The charge of assault with force likely to produce great bodily injury (count 2) was based on the act of kicking F.R. in the head. Defendant disputes the sufficiency of the evidence supporting this theory. He argues "the prosecution failed absolutely to prove that [he] kicked the victim with an amount of force that was likely to cause great bodily injury."
Standard of Review
"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) This analysis applies to every element of the offense. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89.) In considering the record as a whole, we "'must accept logical inferences that the jury might have drawn from the circumstantial evidence.'" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Law and Analysis
Section 245, subdivision (a)(4) prohibits "an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury." (People v. Muir (1966) 244 Cal.App.2d 598, 604.) Therefore, "whether the victim in fact suffers any harm is immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) The offense can be committed with the use of one's hands or feet. (Ibid., citing People v. Duke (1985) 174 Cal.App.3d 296, 302-303.) Whether punches or kicks rise to the level of aggravated assault may be determined by "the force of the impact, the manner in which it was used and the circumstances under which the force was applied." (People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749.)
"Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. McDaniel, supra, 159 Cal.App.4th at p. 748.) In People v. Roberts (1981) 114 Cal.App.3d 960, this court said "the kicking on the head and torso of a largely defenseless man on the ground appears to us to be unmistakably an assault which a jury could reasonably find was likely to produce great bodily harm." (Id. at p. 965.) The Roberts victim suffered "short lapses of consciousness," "a severe bruise of his head, [and] a cut lip." (Id. at p. 962.) Here, the victim lost consciousness during the stabbing and was later noted to have swelling around one of his eyes, in addition to cuts and other injuries. According to Officer Collins, the victim was lying motionless on the ground when defendant began kicking his head. Under these circumstances, especially when viewed in the light most favorable to the judgment, there is sufficient evidence to support the jury's verdict.
Defendant notes Officer Collins "did not testify that [his] kicks had any particular force that might have been likely to cause great bodily injury." He also contends F.R.'s facial injuries may have been caused by Gomez's kicks, which occurred first in time. Both points are valid and could have been highlighted during closing argument (they were not). Nevertheless, "[a] reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, 43 Cal.4th at p. 357.) "Even where, as here, the evidence of guilt is largely circumstantial, our task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might reasonably be reconciled with the defendant's innocence." (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
II. Evidentiary Error
Defendant seeks reversal of count 3 and the related gang enhancement findings based on the erroneous admission of hearsay, which included his alleged confession of gang membership during an interview with jail personnel. As mentioned, the claims are based on the holdings of Elizalde and Sanchez. For the following reasons, we conclude the errors were harmless.
Applicable Law
Section 186.22 proscribes the substantive offense of active participation in a criminal street gang, as set forth in subdivision (a), and includes enhancement provisions, which are found in subdivision (b). (Elizalde, supra, 61 Cal.4th at pp. 538-539.) The elements of the substantive offense are: "First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) The enhancement provisions apply when an offense is committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b).)
The prosecution must first prove the existence of a "criminal street gang." (People v. Vasquez (2016) 247 Cal.App.4th 909, 922.) This term refers to "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).) "A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.' (Id., subd. (e).)" (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The list of qualifying offenses is found in section 186.22, subdivision (e)(1)-(33).
Active participation in a criminal street gang may be demonstrated by admissions of gang membership, contacts with a particular gang and/or its members, gang-related contacts with police, and being in the company of a gang member while committing a charged offense. (See People v. Castenada (2000) 23 Cal.4th 743, 752-753; People v. Williams (2009) 170 Cal.App.4th 587, 626; People v. Garcia (2007) 153 Cal.App.4th 1499, 1511.) A defendant's knowledge that the gang's members engage in a pattern of criminal gang activity is often inferable from the same evidence of his or her active participation in the gang. (People v. Carr (2010) 190 Cal.App.4th 475, 489 & fn. 14; see People v. Castenada, supra, at p. 752 ["every person incurring criminal liability under section 186.22(a) has aided and abetted a separate felony offense committed by gang members"].) The third element, i.e., willful promotion, furtherance, or assistance in the commission of a felony by gang members, is established by showing the defendant's direct perpetration of the target felony or actions constituting aiding and abetting. (People v. Rodriguez, supra, 55 Cal.4th at pp. 1132, 1135-1136; People v. Ngoun (2001) 88 Cal.App.4th 432, 435-437.)
Elizalde
Under Elizalde, questions about gang affiliation posed to an arrestee while processing him or her into jail do not come within the historically recognized "booking exception" to the requirements of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). (Elizalde, supra, 61 Cal.4th at pp. 531-535.) "Given the 'comprehensive scheme of penal statutes [aimed at eradicating criminal activity by street gangs]' [citation], an admission of gang membership always carries with it the incriminatory prospect of future enhanced punishment." (People v. Roberts (2017) 13 Cal.App.5th 565, 576.) Therefore, while it is permissible for jail officials to ask questions about gang affiliation during the booking process, the answers to such questions are inadmissible in a criminal trial unless they were preceded by Miranda admonitions and a waiver of the right to remain silent. (Elizalde, supra, at p. 541.)
The erroneous admission of a jail classification statement obtained in violation of Miranda is reviewed for prejudice under the standard described in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). "That test requires the People ... 'to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" (Elizalde, supra, 61 Cal.4th at p. 542.) A reviewing court considers "not only the evidence that would support the judgment, but also the impact of the inadmissible evidence on the final outcome." (People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.)
Both parties assume defendant was not Mirandized at the time of his jail classification interview, but the People raise questions of forfeiture and estoppel. We reject the forfeiture argument, which is based on the lack of an objection to Officer Villegas's testimony regarding the purported admission of gang membership. "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237.) The People offer no analysis of this issue and do not dispute that any objections on Fifth Amendment grounds would have been futile given the state of the law at the time of trial.
The estoppel argument is a closer issue since the challenged testimony was elicited by defense counsel on cross-examination. The Elizalde holding is unequivocal: a defendant's answers to un-Mirandized gang questions are inadmissible in the prosecution's case-in-chief. (Elizalde, supra, 61 Cal.4th at pp. 532, 541.) However, "[i]t is axiomatic that a party who himself offers inadmissible evidence is estopped to assert error in regard thereto." (People v. Williams (1988) 44 Cal.3d 883, 912.) Because we find no prejudice, it is unnecessary to resolve the parties' debate over trial counsel's actions.
In Elizalde, the error was deemed harmless because the defendant's gang membership was established through independent evidence. (Elizalde, supra, 61 Cal.4th at p. 542.) This case similarly involves convincing independent proof of gang ties and gang motives. The admissible evidence showed defendant was placed in a Norteño housing area based on a thorough and reliable screening process. Defendant now argues the jury may have concluded he was placed in the Norteño cell block due to administrative error but for Officer's Villegas's inadmissible testimony. There was no evidence to support this theory, meaning such a conclusion would have rested upon abject speculation. Defendant's trial counsel suggested he might have been a former gang member who was classified in light of prior circumstances, but the strategy seemed to backfire when Officer Villegas testified on redirect about what would happen if a Norteño dropout were to be housed with active members: "He would be assaulted or killed, most likely, very quickly."
Defendant further contends the jury may have otherwise believed he was a Norteño "associate" rather than an actual gang member. Officer Villegas defined an associate as "someone that is allowed to hang around with documented Norteno gang members but has not yet gained that status as a member. They haven't gone through the initiation process." Critically, however, "[t]here is no requirement that the defendant be an active or current member of the gang to establish the enhancement under section 186.22, subdivision (b)(1)." (People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 539, citing Sanchez, supra, 63 Cal.4th at p. 698.)
The substantive gang offense does require proof of felonious conduct by at least two gang members. (§ 186.22, subd. (a); People v. Rodriguez, supra, 55 Cal.4th at p. 1132.) Defendant's admission to the jail classification officer was certainly compelling proof of his membership status, but his arguments downplay other important facts and circumstances. As demonstrated by its verdicts, the jury believed Gomez was a gang member, rejected his denials about the gang-related nature of the crime, and evidently adopted Officer Villegas's theory that defendant and Gomez acted pursuant to instructions from authority figures in the Norteño gang hierarchy. Gomez also admitted the gang-related nature of the assault by virtue of his plea. Defendant was 29 years old, had a prior gang-related felony conviction and had previously been ordered to register as a gang member, was housed in a Norteño cell block, and committed a felonious assault inside of the cell block with an 18-year-old gang member who later claimed full responsibility for the crime. Defendant had a Norteño tattoo, which common sense dictates is a sign of allegiance rather than mere association. Given the totality of the circumstances, the outcome at trial was "'surely unattributable to the error.'" (People v. Neal (2003) 31 Cal.4th 63, 86.)
Sanchez
"Expert testimony is admissible to establish the existence, composition, culture, habits, and activities of street gangs; a defendant's membership in a gang; gang rivalries; the 'motivation for a particular crime, generally retaliation or intimidation'; and 'whether and how a crime was committed to benefit or promote a gang.'" (People v. Hill (2011) 191 Cal.App.4th 1104, 1120.) Until recently, experts could testify about out-of-court statements upon which they had relied in forming their opinions, even if the statements were otherwise inadmissible under the hearsay rule. Case law held such evidence was not offered for its truth, but only to identify the foundational basis for the expert's testimony. (E.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements in an expert's "basis testimony" to be compliant with the hearsay rule and the requirements of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108, citing Evid. Code, § 1200.)
The right of confrontation, as guaranteed by the Sixth Amendment to the federal Constitution and made applicable to the states through the Fourteenth Amendment, ensures the opportunity for cross-examination of adverse witnesses. (People v. Fletcher (1996) 13 Cal.4th 451, 455.) In Crawford, the United States Supreme Court held the confrontation clause bars admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. (541 U.S. at p. 59.)
In Sanchez, the California Supreme Court determined a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which in turn implicates the hearsay rule and the constitutional right of confrontation. (Sanchez, supra, 63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay.... If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.) The erroneous admission of testimonial hearsay is reviewed for prejudice under the Chapman standard. (See Sanchez, supra, at pp. 670-671, 698.)
To summarize, a gang expert cannot testify to case-specific facts asserted in hearsay statements unless such facts are within the expert's personal knowledge or independently supported by admissible evidence. Factual assertions are "case-specific" if they relate "to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) Federal constitutional issues arise if case-specific facts are presented in the form of testimonial hearsay. (Id. at pp. 680-681, 685.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Id. at p. 689.) Information contained in a police report is generally construed as testimonial hearsay because police reports "relate hearsay information gathered during an official investigation of a completed crime." (Id. at p. 694.)
Defendant's claim pertains to Officer Villegas's testimony about the contents of written reports, including statements regarding his admission of gang membership during a jail classification interview. The People argue forfeiture but again fail to discuss whether timely objections would have been futile. There is a split of authority on this issue. (Compare People v. Flint (2018) 22 Cal.App.5th 983, 996-998 [Sanchez claim not forfeited because objections would have been futile] and People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508 [same] with People v. Blessett (2018) 22 Cal.App.5th 903, 925-941 [Sanchez claim forfeited because "the change in the law was foreseeable" and objections would not have been futile].) Since we ultimately conclude the Sanchez error was harmless beyond a reasonable doubt, we need not resolve the forfeiture question.
Although the gang expert related inadmissible hearsay to the jury, several of defendant's contentions are misguided. Citing Officer Villegas's opinion that Gomez was a gang member, defendant submits "Villegas's unconstitutional testimony" was essential to proving the predicate offenses element of section 186.22 and showing two or more gang members committed a felony offense against F.R. The argument fails because the opinion testimony regarding Gomez did not contain hearsay. "Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so," which is exactly what occurred in this instance. (Sanchez, supra, 63 Cal.4th at p. 685; accord, People v. Perez (2018) 4 Cal.5th 421, 457.) Defendant cannot claim the opinion was unfounded, as there was independent proof of Gomez's gang membership from his trial testimony, prior convictions, and other circumstantial evidence.
In his remaining argument, defendant contends the "chief and most persuasive evidence that [he] was a gang member came from the police reports." We are unconvinced. The testimony concerning the police reports indicated he used Norteño slang on a prior occasion and was found to be in possession of a firearm and red clothing. The firearm revelation was not unduly prejudicial in light of the admissible evidence of his prior conviction for carrying a loaded gun in public as an active gang member. His one-time use of the word "Eñe," which translates to "N," and ownership of red clothing were probative of gang membership, but less so than having Norteño jargon tattooed on his arm. This leaves the testimony about his admission during the jail classification interview, which is addressed in our discussion of the Elizalde claim. For all of the reasons stated, we conclude the combined impact of the errors under Elizalde and Sanchez were harmless beyond a reasonable doubt.
III. Alleged Sentencing Error
Punishment for count 2, which was based on defendant's kicking of the victim's head, was ordered to run concurrent to the prison term for count 1, i.e., assault with a deadly weapon. The trial court noted a debatable issue regarding the application of section 654, but found the circumstances warranted separate punishment. Defendant disputes this finding.
Section 654 prohibits multiple punishment for crimes arising out of a single act or indivisible course of conduct. (Id., subd. (a); People v. Hester (2000) 22 Cal.4th 290, 294.) The defendant's intent and objective determine whether two crimes are part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) In the absence of separate and distinct objectives, it is error to impose concurrent sentences instead of staying the execution of sentence for those convictions to which section 654 applies. "Accordingly, although there appears to be little practical difference between imposing concurrent sentences, as the trial court did, and staying sentence on two of the convictions," the issue is subject to appellate review. (People v. Jones (2012) 54 Cal.4th 350, 353.)
As a general rule, the trial court determines the defendant's intentions and objectives under section 654 by a preponderance of the evidence. (See People v. Towne (2008) 44 Cal.4th 63, 86 ["Facts relevant to sentencing need be proved only by a preponderance of the evidence"]; People v. Cleveland (2001) 87 Cal.App.4th 263, 268-270.) "When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective." (People v. Islas (2012) 210 Cal.App.4th 116, 129.) "We review the court's determination ... for sufficient evidence in a light most favorable to the judgment, and presume in support of the court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.]" (People v. Cleveland, supra, at p. 271.)
Defendant's argument relies on the temporal proximity of the crimes, i.e., the amount of time between his stabbing of the victim and kicking him in the head. He contends both forms of assault were committed in furtherance of a single intent to inflict harm, and there was no time to formulate separate objectives. The People argue the kicking offense could be interpreted as "an act of defiance directed towards Officer Collins and his authority and, thus, done with a different intent from the stabbing." The record provides adequate support for this theory. Officer Collins testified as follows: "I ordered both inmates to get away from the victim and get on the ground. Mr. Gomez complied. [Defendant] continued to strike the victim one more time—or two times, and then got up [¶] ... [¶] ... and then proceeded to kick the victim in the head." The officer deployed his Taser in response to defendant's refusal to comply with his orders. Viewing the evidence in the light most favorable to the judgment, we find no error in the trial court's conclusion regarding the existence of separate intents and objectives.
DISPOSITION
The judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.