Opinion
E067952
07-03-2018
THE PEOPLE, Plaintiff and Respondent, v. ROMONT EDTWAINE HAGAN, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI15011712) OPINION APPEAL from the Superior Court of San Bernardino County. Lisa M. Rogan, Judge. Affirmed in part, reversed in part with directions. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Romont Edtwaine Hagan, appeals from the judgment entered following jury convictions for making criminal threats (Pen. Code, § 422, subd. (a); counts 1 & 2) and participating in a criminal street gang (§ 186.22, subd. (a); count 3). The jury also found true allegations as to counts 1 and 2 that the offenses were committed for the benefit of a gang. (§ 186.22, subd. (b)(1)(B).) The court found true as to all counts that defendant had a prior serious or violent felony conviction (§ 667, subd. (a)(1)), two prison priors (§ 667.5, subd. (b)), and one strike (§§ 1170.12, subds. (a)-(d), 667, subd. (e)(1)). The trial court sentenced defendant to an aggregate prison term of 20 years.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends there was insufficient evidence to support his convictions and gang enhancements. Defendant also contends the trial court erred in admitting case-specific hearsay evidence to establish the elements of the gang participation offense and gang enhancements. Defendant further argues the trial court erroneously denied his motion for a mistrial. The People note, and defendant agrees, the trial court did not sentence defendant on count 3. Therefore, defendant's sentence is reversed and the matter is remanded solely as to sentencing on count 3. In all other respects, we affirm the judgment.
II.
FACTS
On May 12, 2015, about 10:30 p.m., defendant and his brother, Romar Hagan, attempted to return an alcoholic beverage they had purchased 10 or 15 minutes earlier at a Stater Bros. Market (store). The store service manager (the Manager) told defendant and Romar that the alcoholic beverage could not be returned and suggested the men return the following morning and speak to his supervisor. Defendant responded, "you're going to return this. I want my money." The Manager again told defendant he was not authorized to do so, and to return in the morning and discuss the matter with his supervisor. Defendant continued yelling, demanding the Manager accept the return. Defendant insisted he would not leave until the Manager did so.
While yelling, defendant began using derogatory language. Defendant yelled at the Manager to "wipe the . . . smirk off [his] face." Romar began yelling as well. Defendant threw his hands up and made what the Manager believed were gang signs, while defendant and Romar yelled "Piru [B]lood." Defendant lifted up his shirt, displayed tattoos on his stomach, and said, "I earned this piece." The Manager thought defendant had a gun but did not see one. The Manager asked defendant and Romar to leave and asked the store security guard to call 911. The security guard testified defendant yelled "Piru Blood" at least five times. The security guard called 911 when he heard defendant threaten to return and "shoot this place up."
The Manager testified defendant said he knew the Manager's name and "I'll be back for you." Defendant placed his face approximately two inches from the Manager's face, and defendant told the Manager that if he and Romar had a gun they would return and rob the store. The Manager testified he was "scared" and felt threatened by defendant's use of gang signs and yelling "Piru Blood." The security guard testified he feared that he, the Manager, or a customer would be injured or killed. The security guard construed defendant's statement that he was going to return and "shoot up this place" as a threat, and believed defendant would return and assault him and anyone else present.
A few minutes after the Manager told the security guard to call 911, defendant and Romar voluntarily left the store. As they were leaving, a customer yelled, "bye, have a nice night." Defendant began walking toward the customer. The security guard cut him off. As defendant and Romar left the store, the police, who had just arrived, detained the two men. Defendant began yelling at the officer, attempting to explain the incident. Deputy Womelsdorf from the San Bernardino County Sheriff's Department testified that after arriving at the scene, he noticed that the Manager and the security guard appeared "shaken up" and fearful.
Deputy Womelsdorf arrested defendant and transported him to the detention center. As defendant was being placed in a cell, an inmate said to defendant, "Soo Woop." This is a "Blood specific term," which is a rallying or a "war cry" to other Blood gang members. Defendant responded, "Piru." Defendant asked the inmate where he was from, and added, "I'm Piru Blood." Because of safety concerns, defendant was moved to a cell by himself.
Nickolai Vavakin, a Los Angeles County Sheriff's Department detective, testified about the history of the 151 Piru gang. San Bernardino County Sheriff's Department Detective Snyder, who was assigned to a gang unit, also testified as the People's gang expert. Detective Snyder testified regarding the history of Los Angeles gangs. He further testified that he executed a search warrant on defendant and Romar's home. During the search, Detective Snyder found in Romar's room a piece of paper with red writing on it. The writing included the letters "C" and "K," crossed out, which meant "Crip Killer." Detective Snyder testified that in his opinion defendant was a member of the 151 Piru gang, defendant knew 151 Piru engaged in a pattern of criminal activity, and defendant willfully assisted, furthered, and promoted felony conduct by 151 Piru gang members. Detective Snyder also stated he believed defendant's threats against the Manager and the security guard were committed in furtherance of defendant's gang.
III.
SUFFICIENCY OF EVIDENCE
Defendant contends there was insufficient evidence to support his convictions for making criminal threats against the Manager and the security guard (§ 422, subd. (a); counts 1 & 2) and the derivative crime of participating in a criminal street gang (§ 186.22, subd. (a); count 3). Defendant asserts the evidence did not show that the victims, the Manager and the security guard, experienced sustained fear as a result of defendant's threats. Defendant argues that the threats were conditional and did not convey an immediate threat. Instead, any fear the victims experienced was merely momentary, not sustained. Defendant bases his argument on evidence that defendant told the victims he and his brother would return to rob the store if they had a gun. Defendant argues this was a conditional threat and lacked immediacy. In addition, the police apprehended defendant shortly after being dispatched, dissipating any momentary fear.
A. Substantial Evidence Standard of Review
"In reviewing a sufficiency of evidence challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) Even if a contrary finding can be reconciled with the evidence, this court is bound to accept the jury's finding if supported by the evidence. (People v. Escobar (1992) 3 Cal.4th 740, 750.) In applying the same standard to a conviction based primarily on circumstantial evidence, we uphold the jury's verdict if reasonably justified by the circumstances, even if a contrary finding might also reasonably be reconciled with the circumstances. (People v. Ceja (1993) 4 Cal.4th 1134, 1138; People v. Bean (1988) 46 Cal.3d 919, 932.)
B. Law Applicable to Criminal Threats Conviction
In order to prove a criminal threats offense under section 422, the prosecution must establish the following elements: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228, italics added.)
C. Discussion
Defendant argues there was insufficient evidence of the criminal threats crime's fourth element, which, under section 422, subdivision (a), requires that the threat must cause the victim "reasonably to be in sustained fear for his or her own safety." (§ 422, subd. (a).) The word "sustained" under section 422 means "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Defendant cites In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.), for the proposition there was insufficient evidence to support a finding that the victims experienced reasonably sustained fear for their own safety. In Ricky T., the court held that a student did not violate section 422 when he cursed and threatened to attack his teacher immediately after the teacher opened the classroom door and accidentally hit the minor in the head with the door. (Ricky T., supra, at pp. 1137-1138.) The court explained that the People relied "too much on judging a threat solely on the words spoken. It is clear by case law that threats are judged in their context. [Citations.] By this standard, [the minor's] 'threats' lack credibility as indications of serious, deliberate statements of purpose. The lack of surrounding circumstances information is striking. There was no immediacy to the threat. . . . [¶] Here, the police were not called until the following day. [The minor] was then interviewed in the school principal's office. That execution of the threat was not so immediate is further evidenced by the fact that the police did not again interview appellant until one week later. [¶] Having no circumstances to corroborate a true threat, [the People claim] the record contains the legal minimum required to sustain the finding. But the [minor's] remark 'I'm going to get you' is ambiguous on its face and no more than a vague threat of retaliation without prospect of execution. [Citation.] [The minor's threat to] 'kick your ass' and cursing statements were made in response to his accident with the door." (Ibid., fns. omitted.)
Ricky T. thus concluded that "section 422 was not enacted to punish an angry adolescent's utterances, unless they otherwise qualify as [criminal] threats under that statute. [The minor's] statement was an emotional response to an accident rather than a death threat that induced sustained fear." (Ricky T., supra, 87 Cal.App.4th at p. 1141.) The instant case is distinguishable. Here, the surrounding circumstances supported a reasonable finding that defendant's threats were credible "as indications of serious, deliberate statements of purpose" to cause the victims to sustain fear of great bodily harm or death. (Id. at p. 1137.) There was also evidence, unlike in Ricky T., that the victims were fearful for more than a fleeting or momentary period of time. The victims testified that they were scared and feared that defendant would return and rob the store and cause harm to them and customers. Deputy Womelsdorf testified he noticed the victims remained fearful and shaken when he arrived in response to their 911 call. In addition, the evidence showed that defendant's threats were not mere emotional outbursts caused by an accidental injury. Rather, the threats were intended to coerce the victims into complying with defendant's demands, and when the victims refused, additional threats were made to invoke fear that defendant would retaliate by returning in the near future with a gun, to rob and assault the victims. The threats could be reasonably construed as intentional threats of harm intended to induce sustained fear of great bodily injury, and actually did so.
Defendant further argues his threats do not qualify as criminal threats under section 422 because they were conditional, there was no immediacy to the threats, and the threat ended when the police detained defendant. We disagree. The evidence supports a reasonable finding that defendant's threats conveyed the sense that defendant, Romar, and possibly other gang associates would return in the near future with a gun and cause great bodily harm to the victims. The victims' demeanor when the police arrived reflected the victims' fear of being harmed. Defendant's threats thus invoked more than a mere transitory fear or conditional threat that might not come to pass. Even though the police arrested defendant shortly after the victims called 911, their fear was sustained for a sufficient period of time for the threats to qualify as criminal threats under section 422. Unlike in Ricky T., supra, 87 Cal.App.4th 1132, here, the context in which the threats were made and the surrounding circumstances provided substantial evidence that defendant's threats were intended to cause the victims reasonably to fear they would suffer imminent great bodily harm, and the victims actually feared they were in imminent danger of being harmed by defendant.
Defendant notes in his appellant's opening brief that his contention that there was insufficient evidence to support count 3 (participating in a criminal gang) is derivative of the insufficiency of evidence of counts 1 and 2. Since we conclude there was sufficient evidence to support the convictions on counts 1 and 2, defendant's sufficiency-of-evidence challenge as to count 3 lacks merit as well.
IV.
PARTICIPATION IN A GANG
Defendant contends there was insufficient evidence supporting his conviction for participating in a criminal street gang (count 3) and his gang enhancements attaching to counts 1 and 2. Citing People v. Prunty (2015) 62 Cal.4th 59 (Prunty), defendant argues there is no evidence that defendant's gang, 151 Piru, is an ongoing organization in San Bernardino County, where the charged crimes were committed. Defendant relies on Detective Vavakin's testimony that 151 Piru was no longer in existence in its place of origin in the Los Angeles area at the time the charged crimes were committed. Defendant argues there is no evidence that he knew of or was a member of a subset gang that moved from Los Angeles to San Bernardino County. Defendant maintains there was therefore insufficient evidence that he acted on behalf of an ongoing criminal street gang.
The substantive offense of participating in a criminal street gang under section 186.22, subdivision (a) has three elements: "Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, is the first element of the substantive offense defined in section 186.22[, subdivision] (a). The second element is 'knowledge that [the gang's] members engage in or have engaged in a pattern of criminal gang activity,' and the third element is that the person 'willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.'" (People v. Lamas (2007) 42 Cal.4th 516, 523.)
A section 186.22, subdivision (b) gang enhancement requires "proof that the defendant commit a gang-related crime in the first prong—i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. [Citation.] There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (People v. Albillar (2010) 51 Cal.4th 47, 67.) The gang enhancement "does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (Id. at p. 68; Prunty, supra, 62 Cal.4th at p. 84.)
Under section 186.22, subdivision (f), "'criminal street gang' means 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 [qualifying] criminal acts enumerated in . . . 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."
Here, there was sufficient evidence supporting the jury's finding that 151 Piru was an ongoing criminal street gang in San Bernardino County at the time of the charged crimes. Although Detective Vavakin testified that 151 Piru was no longer in existence in Los Angeles, Detective Snyder testified that he investigated the gang and determined that the gang had migrated to the high desert in San Bernardino County. He further determined that the gang has more than one member, has a common sign or symbol, and has committed criminal offenses in San Bernardino County. Those offenses include criminal threats, murder, robbery, and burglary, committed from 2012 to 2014, beginning a year before the charged crimes. Detective Snyder identified several 151 Piru members in San Bernardino County, including Clarence Hoag, Kevin Caldwell, and Rayshawn Perkins. Detective Snyder testified he believed defendant and Romar were also members of 151 Piru.
Defendant's reliance on Prunty is misplaced. In Prunty, proof of predicate criminal acts was based on crimes committed by gang members from subset gangs of an umbrella gang, Norteño. The Prunty court stated that, although the gang expert characterized all of the gang groups as Norteños, there was no evidence connecting the groups to one another or to an overarching criminal street gang the prosecution claimed the defendant intended to benefit. (Prunty, supra, 62 Cal.4th at pp. 81-83.) The Prunty court held: "The critical shortcoming in the prosecution's evidence was the lack of an associational or organizational connection between the two alleged Norteño subsets that committed the requisite predicate offenses, and the larger Norteño gang that Prunty allegedly assaulted [the victim] to benefit. The evidence was not sufficient to permit the jury to infer that the organization, association, or group at issue included the subsets that committed the predicate offenses." (Id. at p. 81.)
In the instant case, the predicate crimes were committed by 151 Piru gang members in San Bernardino County, by defendant's own local gang. There was also substantial evidence defendant and Romar were active members of that gang and committed the charged crimes for the benefit of their gang. Defendant and Romar repeatedly yelled the name of their gang, 151 Piru, while committing the charged crimes and afterwards. Defendant yelled 151 Piru multiple times during booking and when escorted to his jail cell. Gang writings were found in defendant and Romar's home. Detective Snyder testified that in his opinion defendant and Romar were active 151 Piru gang members in the high desert, and their threats at the store were consistent with the primary activities of the 151 Piru gang. We thus conclude there was substantial evidence supporting defendant's conviction for participating in a criminal street gang (count 3) and the gang enhancements attaching to counts 1 and 2.
V.
ADMISSIBILITY OF CASE-SPECIFIC HEARSAY EVIDENCE
Defendant contends the trial court improperly admitted case-specific hearsay evidence used to prove the elements of his count 3 crime, participating in a criminal street gang (§ 186.22, subd. (a)), and his gang enhancements (§ 186.22, subd. (b)(1)(B)). Specifically, defendant argues that admission of the evidence violated People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which requires that if a gang expert's opinion is based on case-specific information, the expert must have personal knowledge of the information. Defendant objects to testimony by the People's gang expert, Detective Snyder, on the ground his opinion testimony was based on reports, conversations with other deputies, and other hearsay information, which was not within Detective Snyder's personal knowledge.
A. Procedural Background
Defendant filed motions in limine seeking to exclude testimony by Detective Snyder. Defendant argued that "Deputy Snyder's expert opinion of the defendant's alleged membership and participation in the alleged 151 Piru criminal street gang is at odds with Sanchez. Deputy Snyder's conclusion[s] are inextricably linked to case-specific out-of-court statements, and thus are inadmissible hearsay under Sanchez." Defendant also requested the trial court to exclude all gang-related testimony by Detectives Vavakin, Cahow, and Weinberg. The trial court denied defendant's motion in limine and overruled defendant's objections to the detectives testifying regarding the elements of the gang crime.
During the trial, Detective Vavakin, assigned to the Los Angeles County Sheriff's Department's FBI Gang Task Force, testified that the 151 Piru gang originated in Compton in the early 1970's. It was based around 151 street. The gang is no longer active in the Los Angeles area because of rivalry between the gang and the 155 Compton Varrio gang. San Bernardino County Sheriff's Detective Cahow testified he filled out and signed a gang card for Clarence Hoag in 2011. The gang card, produced at trial, indicated Hoag self-admitted he was a member of the 151 Piru gang and had a gang tattoo on his neck that said "151." San Bernardino County Sheriff's Department Deputy Crosswhite testified he also filled out and signed a gang card for Hoag in 2011. The gang card, produced at trial, was not signed by Hoag but had his thumbprint on it, which was used for identification if the individual refused to sign the card. Hoag told Deputy Crosswhite he was an active Piru Bloods gang member, and he had a gang tattoo on his neck that said "151." Deputy Crosswhite testified that there were thousands of Piru gang members with several members in Apple Valley.
San Bernardino County Sheriff's Deputy Weinberg testified he filled out and signed a gang card for Caldwell in 2007. Caldwell had said he was a 151 Piru Blood gang member. He had also previously been identified as a 151 Piru Blood gang member. Caldwell had a "151 Piru" tattoo on his right arm. San Bernardino County Deputy District Attorney Braun, assigned as lead attorney to the gang unit in Victorville, testified that court records shown to her at trial indicated that Hoag was convicted in 2013 of murder committed in the high desert. Deputy District Attorney Braun also testified that court records shown to her indicated that Caldwell was convicted in 2014 of burglary.
B. Snyder's Trial Testimony
Detective Snyder, the People's gang expert who investigated the charged crimes in the instant case, testified to the following. The umbrella Piru gang in Los Angeles got tired of intimidation and violence by the Crips gang. As a result, the Piru gang broke away from the Crips and created its own Bloods gang. 151 Piru is one of the original Piru subset gangs. The Piru members began wearing burgundy to distinguish the Piru gang from the Bloods and Crips. 151 Piru gang members typically have tattoos and use "B" or "P" as their hand signs and symbols. Gangs in the high desert tend to function differently than Los Angeles gangs. Los Angeles gangs' primary objective is to gain territory, whereas high desert gangs' primary objective is to make money.
According to Detective Snyder, Los Angeles gang members moved to the high desert, not only because of the desire to avoid retaliation by other gangs, but also because of enforcement of gang injunctions in Los Angeles and because of less expensive housing in the high desert. Detective Snyder testified that based on his investigation, which included a search of gang cards, Detective Snyder located seven documented members of the 151 Piru gang in San Bernardino County, not including defendant and Romar.
During the trial, defense counsel objected to the prosecutor asking Detective Snyder if 151 Piru was a gang, citing Sanchez, supra, 63 Cal.4th 665. The court overruled the objection. After testifying as to his training and experience, Detective Snyder testified to his investigation of the instant case and provided opinion testimony as to the elements of the charged gang offense and gang enhancements. Detective Snyder testified that based on his background, training, and experience he believed 151 Piru is a criminal street gang, has more than one member, has a common sign or symbol, has established criminal offenses, and has committed a pattern of criminal offenses. Detective Snyder reviewed the gang's pattern of criminal offenses and determined that 151 Piru gang members had committed murder and burglary in San Bernardino County.
Detective Snyder further testified he was familiar with Hoag and his murder case. Hoag was convicted of murder in 2012. Detective Snyder concluded Hoag was a 151 Piru gang member based on three or four of Hoag's gang cards, which showed that Hoag had admitted he was a member of the 151 Piru gang. Defendant also had "151" tattooed on his neck. The gang cards were also mentioned in Detectives Cahow's and Crosswhite's testimony. Detective Snyder believed Kevin Caldwell was also a gang member of 151 Piru based on Detective Snyder's review of the gang cards, which showed that Caldwell self-admitted his gang membership. Detective Snyder was familiar with Caldwell's conviction for first degree burglary, which was reflected in court records produced during defendant's trial.
Detective Snyder stated that in his opinion, based upon everything he had reviewed, the 151 Piru gang had a pattern of criminal activity, which included murder, burglary, and robbery. Detective Snyder believed defendant was a 151 Piru gang member based on the totality of the circumstances, including the commission of the charged crime and defendant's actions during the crime, his arrest, and the recordings of the booking and housing process. The video of defendant during booking showed him claiming he was a 151 Piru Blood, challenging Hispanic inmates, and making hand signs indicating he was "Piru Blood." Twice he threw B and P hand signs and said "Bloods" several times. Defendant also said, "Soo Woop Business" and "Soo Woop," which is Blood gang jargon for a "cry to other Blood members," indicating he is "putting out a flag to find allies." It was also a warning to rival gang members and an admission he was a Blood.
Detective Snyder testified he also relied on the Manager and the security guard's trial testimony. The Manager testified that Romar and defendant told the Manager in an intimidating, aggressive manner that they were 151 Piru Blood gang members. Defendant lifted his shirt, exposing a red "Los Angeles" tattoo on his chest and said, "I earned this piece." Detective Snyder believed that the tattoo was a gang tattoo and that defendant was claiming gang membership.
In addition, Detective Snyder testified he found gang membership evidence in Romar's bedroom. He found a piece of paper with the letters "CK," with the C crossed out, indicating "Crip killer," as a sign of disrespect to rival Crip gangs. Detective Snyder concluded Romar was a 151 Piru gang member based on Romar's statements made during the charged crime and based on Detective Snyder's conversations with Romar's mother, one of Romar's brothers, and deputies who were with Detective Snyder when they executed a search warrant on Romar and defendant's home. In addition, the Manager testified that Romar yelled "Piru Bloods" and a photograph of Romar showed him wearing a red sweatshirt, the color of the Bloods gang. Detective Snyder explained that Bloods was an umbrella gang with Piru gangs as subset gangs of the Bloods.
Detective Snyder concluded, based on his background, training, and experience, and the facts of the case, that defendant actively participated in a criminal street gang, and defendant knew that members of 151 Piru engaged in a "pattern of criminal activity." Detective Snyder based this on defendant yelling out "151 Piru Blood," and knowing the gang's hand signs and terminology. Detective Snyder believed defendant willfully assisted, furthered, and promoted felony conduct by 151 Piru gang members. Defendant acted in concert with another 151 Piru gang member, Romar, used his membership to attempt to get what he wanted, and committed the charged crime in furtherance of and for the benefit of his gang. The crime bolstered the gang's reputation and placed the victims, the Manager and the security guard, in fear for their own safety and in fear of retaliation.
The People introduced felony complaints and abstracts of judgment showing defendant had been convicted in separate incidents of robbery and second degree burglary in 2013. Detective Snyder testified that based on defendant's prior convictions and the evidence regarding the charged incident, he believed defendant knew of the 151 Piru gang's criminal activities.
The day after the People rested, the prosecution requested to reopen their case to recall Detective Snyder. The prosecutor explained that he had inadvertently erred in asking Detective Snyder about the gang's "pattern" of activity, rather than asking him about the gang's "primary activity," which was an element of the crime of participating in a criminal street gang. The court agreed additional evidence was required and granted the prosecution's request to reopen, limited to establishing the requisite "primary activity" element. The court added that the testimony was to be based on Detective Snyder's personal knowledge and should show the activity was "ongoing and consistent."
The prosecution recalled Detective Snyder, who testified that he spoke to Deputy Crosswhite about the murder committed by Clarence Hoag, who was identified as a 151 Piru gang member. Detective Snyder also spoke to Detective Vavakin, who told him 151 Piru was no longer in Los Angeles. Detective Snyder reviewed reports regarding 151 Piru gang members, including Kevin Caldwell, who committed burglary, and Rayshawn Perkins, who entered the victim's residence by force and would not allow the victim to leave. Detective Snyder also reviewed the criminal backgrounds of other 151 Piru members who had committed burglaries. He researched the San Bernardino County Sheriff's Department database for gang cards and found a gang card in Perkins's name. His research revealed that the primary activities of the 151 Piru gang were criminal threats, burglary, murder, and robbery.
Detective Snyder concluded that defendant's charged crimes were consistent with the primary activities of 151 Piru and its ongoing pattern of criminal activity. He based his conclusions on his research of the 151 Piru gang, its members, and their convictions. Detective Snyder also concluded defendant's prior criminal conduct fell within the primary activity of 151 Piru. Detective Snyder stated that he received information from the Los Angeles County Sheriff's Department that defendant and his brother, Romar, were identified as suspects in a robbery in Los Angeles and defendant was convicted of the robbery. Caldwell's burglary conviction also fell within the primary activity of 151 Piru. He was a documented member of 151 Piru. Detective Snyder said he based his conclusion that Caldwell and Perkins were 151 Piru gang members on viewing their gang cards produced at trial.
C. Applicable Law
"While lay witnesses are allowed to testify only about matters within their personal knowledge (Evid. Code, § 702, subd. (a)), expert witnesses are given greater latitude. . . . An expert may express an opinion on 'a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' (Evid. Code, § 801, subd. (a).) In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc. . . . An expert's testimony as to information generally accepted in the expert's area, or supported by his own experience, may usually be admitted to provide specialized context the jury will need to resolve an issue. When giving such testimony, the expert often relates relevant principles or generalized information rather than reciting specific statements made by others." (Sanchez, supra, 63 Cal.4th at p. 675.) This includes the general background testimony gang experts provide about a gang's "operations, primary activities, and pattern of criminal activities," which is unrelated to the defendant or the charged crimes. (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411.) The prosecution's gang expert is thus permitted to testify to noncase-specific general background information about the gang in question, its rivalry with another gang, its primary activities, and its pattern of criminal activity, "even if it was based on hearsay sources like gang members and gang officers." (Ibid.)
"[A]n expert's testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds. [¶] By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge. [Citation.]" (Sanchez, supra, 63 Cal.4th at p. 676.) "It has long been the rule that an expert may not '"under the guise of reasons [for an opinion] bring before the jury incompetent hearsay evidence."' [Citation.]" (Id. at p. 679, quoting People v. Coleman (1985) 38 Cal.3d 69, 92.)
Under Crawford v. Washington (2004) 541 U.S. 36, 56, if a hearsay exception does not apply, admission of testimonial hearsay by a gang expert "violates the confrontation clause unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. [Citations.]" (Sanchez, supra, 63 Cal.4th at p. 680.) Gang experts can rely on background information accepted in their field of expertise and on information within their personal knowledge. (Id. at p. 685.) In addition, "they can give an opinion based on a hypothetical including case-specific facts that are properly proven. They may also rely on nontestimonial hearsay properly admitted under a statutory hearsay exception." (Ibid.) When a prosecution expert relies upon, and relates as true, a testimonial statement, the fact asserted as true must have been independently proven to satisfy the Sixth Amendment. (Ibid.) Therefore, under Sanchez, the prosecution's gang expert, Detective Snyder, could not relate as true case-specific facts asserted in hearsay statements, unless the facts were independently proven by competent evidence or were covered by a hearsay exception. (Id. at p. 686.)
D. Discussion
In the instant case, Detective Snyder's testimony included general background information about the 151 Piru gang; testimony about his investigation of the 151 Piru gang; facts within Detective Snyder's personal knowledge, discovered during his investigation; and case-specific facts independently proven by competent evidence introduced at trial through other witnesses subject to cross-examination. We therefore reject defendant's contention that Detective Snyder's opinion testimony as a gang expert was based on impermissible case-specific hearsay statements.
Detective Snyder's testimony was proper regarding his general knowledge in his field of expertise. (Sanchez, supra, 63 Cal.4th at p. 676.) Detective Snyder's background testimony about general gang behavior and defendant's gang's behavior and territory did not raise hearsay or confrontation concerns, because it was "'based on well-recognized sources' in the expert's area of expertise and was 'relevant and admissible evidence as to the . . . gang's history and general operations.' [Citation.]" (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 409, quoting Sanchez, supra, at p. 698.) Detective Snyder provided permissible general background information about defendant's gang and its activities.
In addition, the case-specific facts, which Detective Snyder testified he relied upon, included facts properly disclosed during testimony by other witnesses. His knowledge of the facts was based on independent, competent evidence introduced at trial, including court records reflecting convictions by known 151 Piru gang members, such as defendant, Romar, Perkins, Hoag, and Caldwell; the security guard and the Manager's trial testimony; video and audio recordings of defendant during his booking and while being escorted to his jail cell; gang cards presented at the trial and related testimony provided by Detectives Crosswhite, Weinberg, and Cahow, who prepared and signed the gang cards; and testimony by Detectives Vavakin, Judd, Womelsdorf, Donner, and Braun, who were available for cross-examination.
Under Sanchez, Detective Snyder thus properly testified to hearsay regarding his general knowledge in his field of expertise. He also properly conveyed to the jury facts independently disclosed at trial, which Detective Snyder testified he relied upon in forming his opinions. (Sanchez, supra, 63 Cal.4th at pp. 683-686; see also People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510 ["If prior unobjected testimony supported the prosecution experts' case-specific testimony, the testimony was not objectionable under Sanchez."].) We therefore conclude Detective Snyder's testimony did not violate Sanchez's holding prohibiting case-specific hearsay testimony. Even if Detective Snyder's testimony was improper in any part, such error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18, 24, because most of the facts Detective Snyder testified he relied upon in forming his opinions were established by other independent persuasive evidence. (Jeffrey G., supra, at p. 510.) There was also overwhelming evidence, apart from Detective Snyder's testimony, establishing each element of the crime of participating in a criminal street gang and defendant's gang enhancements.
VI.
MOTION FOR MISTRIAL
Defendant contends the trial court abused its discretion in denying his motion for a mistrial, which was based on a juror disclosing midtrial that she knew a prosecution witness.
A. Procedural Background
During the trial, the prosecutor called as his next witness, Britt Imes, a supervising attorney at the San Bernardino District Attorney's Office. It was anticipated Imes would testify in support of the gang allegations against defendant. During a private conversation with the prosecutor, Imes revealed he knew Juror No. 12. The prosecutor immediately informed the court of this, and out of the presence of the jury, the court held a hearing on the matter. The court noted that it had observed Juror No. 12 whisper something to Juror No. 11 when Imes was called to testify. The prosecutor told the court, "I think I'm going to need a different witness." The trial court responded that Juror No. 12 had "tainted Juror Number 11," and added, "[t]his is what happens when you don't name your witnesses in the beginning of trial."
The court called Juror No. 12, who stated that she knew Imes. She taught his children in kindergarten and knew his children from Girl Scouts. Juror No. 12 acknowledged that when she saw Imes she told Juror No. 11 that she knew him. Juror No. 12 said that even though she knew Imes, she believed she could be a fair and impartial juror. Juror No. 12 stated that she knew Imes took his job very seriously, and was "a person of high character" and a good father. She further said she would listen to Imes and make a good decision based on what he said. She denied that knowing him would impact her decision in any way.
Juror No. 12 is referred to incorrectly in the transcript as Juror No. 20. --------
Because of Juror No. 12's familiarity with Imes, the prosecutor agreed to replace Imes with a different witness. The trial court informed the jury that Imes had been withdrawn as a witness and admonished the jury that it should "take nothing from that, no insinuation, speculation, anything." The prosecution then called its next witness, Braun. Then Detective Snyder briefly testified before the noon recess. Following the noon recess, defense counsel moved for a mistrial, based on Juror No. 12's conversation with Juror No. 11 regarding Imes and the court's failure to question Juror No. 11. The trial court denied the motion, stating that the issue had been "dealt with." Imes had been withdrawn as a witness. In addition, Juror No. 12 had said she merely told Juror No. 11 she knew the witness, and neither party requested the court to question Juror No. 11. The court also found that defendant's mistrial motion was untimely. After the court denied defendant's motion for mistrial, the prosecution resumed questioning Detective Sndyer.
B. Applicable Law
A defendant has a constitutional right to a fair trial decided by 12 unbiased and unprejudiced jurors. (U.S. Const., Sixth Amend.; Cal. Const. Art. I, § 16.) "'An impartial jury is one in which no member has been improperly influenced [citations] and every member is "'capable and willing to decide the case solely on the evidence before it'" [citations].' (In re Hamilton (1999) 20 Cal.4th 273, 294.) A defendant is 'entitled to be tried by 12, not 11, impartial and unprejudiced jurors. "Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced."'" (People v. Harris (2008) 43 Cal.4th 1269, 1303.) A juror has "actual bias" if the juror's state of mind in reference to the case or to any of the parties prevents the juror "from acting with entire impartiality, and without prejudice to the substantial rights of any party." (Code Civ. Proc., § 225, subd. (b)(1)(C); People v. Romero (2017) 14 Cal.App.5th 774, 780.)
"We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] . . . '"A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions."'" (People v. Cox (2003) 30 Cal.4th 916, 953.)
C. Discussion
Defendant argues Juror No. 12 was biased in favor of the prosecution because she knew the prosecution's witness, Imes, and thought highly of him. As a consequence, Juror No. 12 had a preconceived notion as to the witness's character and trustworthiness. Defendant further asserts Juror No. 12 then tainted Juror No. 11 by telling the juror she knew Imes. While the record supports a finding that Juror No. 12 was biased in favor of Imes, the prosecution withdrew the witness and called a different witness. The court further instructed the jury that it should "take nothing from that, no insinuation, speculation, anything" from the withdrawal of Imes as a witness. We generally presume the jurors understood and followed the court's instruction. (People v. Centeno (2014) 60 Cal.4th 659, 676; People v. Mooc (2001) 26 Cal.4th 1216, 1234.)
Defendant argues the trial court was not justified in denying his mistrial motion because the court failed to question Juror No. 11 as to what Juror No. 12 told Juror No. 11. But the trial court asked Juror No. 12 what she said to Juror No. 11, and Juror No. 12 told the court she told the juror she knew the witness. There was no indication anything else was said. The court reasonably concluded that since the prosecution agreed to withdraw Imes as a witness there was no need to question Juror No. 11. Furthermore, defense counsel did not request the court to question Juror No. 11. The trial court acted well within its discretion in denying defendant's motion for mistrial. The trial court's reasons for denying the motion were valid. The potential juror problem arising from Juror No. 12 knowing a prospective witness and disclosing this to another juror was effectively resolved by the prosecution's withdrawal of Imes as a witness and the court's admonishment of the jury to disregard as insignificant such withdrawal.
Furthermore, given the strength of the prosecution's case, the trifling nature of the alleged irregularity, and its minimal impact upon the case, we conclude there was no actual prejudice to defendant from Juror No. 12 knowing Imes and mentioning it to Juror No. 11. (People v. Ryner (1985) 164 Cal.App.3d 1075, 1084.) "[W]hether an individual verdict must be overturned for jury misconduct or irregularity '"'is resolved by reference to the substantial likelihood test, an objective standard.'"' [Citations.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]" (In re Hamilton (1999) 20 Cal.4th 273, 296.) Here, there was no reasonable probability of prejudice. There was no substantial likelihood that Jurors Nos. 11 or 12 were actually biased against defendant.
VII.
SENTENCING ERROR ON COUNT 3
The People correctly point out in their respondent's appellate brief that the trial court overlooked imposing sentencing on count 3. The reporter's transcript confirms this oversight. The sentencing minute order merely states as to count 3, "[s]entence on count 3 is deemed PC654." The abstract of judgment makes no reference to defendant's count 3 conviction. Because the trial court did not impose a sentence on count 3, the sentence is an unauthorized absence of sentence, requiring remand for resentencing. (People v. Alford (2010) 180 Cal.App.4th 1463, 1466, 1472.) Defendant concedes this point in his appellant's reply brief and agrees the matter should be remanded for resentencing on count 3.
VIII.
DISPOSITION
The judgment of conviction is affirmed; but defendant's sentence is reversed as to count 3, with the matter remanded to the trial court with directions to resentence defendant on count 3. The sentence is affirmed in all other respects. The trial court is directed to prepare an amended abstract of judgment reflecting the new sentence and forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.