Opinion
G051488
10-20-2016
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL SANCHEZ, Defendant and Appellant.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13CF3748) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas A. Glazier, Judge. Affirmed. Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury found defendant Miguel Angel Sanchez guilty of carrying a loaded firearm in public (Pen. Code, § 25850, subd. (a); Count 1), possession of a firearm by a felon (§ 29800, subd. (a)(1); Count 2), and possession of a firearm by a probationer (§ 29815, subd. (a); Count 3). As to each count, the jury returned a true finding that defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) The superior court sentenced defendant to four years in state prison, consisting of two years on count 1, plus an additional two-year term for the related gang enhancement. The court imposed concurrent terms on the remaining counts, but stayed the punishment. (§ 654, subd. (a).)
All further statutory references are to the Penal Code, unless otherwise stated.
Defendant challenges his conviction on count 1, arguing there was no evidence he possessed the firearm in an incorporated city and the trial court erred by instructing the jury that the City of Santa Ana was an incorporated city. Defendant attacks his conviction on count 2 on the ground it is a necessarily included offense of count 1. Finally, defendant challenges the gang enhancement findings on several grounds; insufficiency of the evidence, lack of evidentiary support for the expert's opinion, and violation of his constitutional right to confrontation. Finding no prejudicial error, we affirm.
FACTS
Santa Ana Police Officer Christopher Shynn testified he was assigned to patrol the northeast section of the City of Santa Ana. He noted two street gangs claiming territory in this part of the city were the Lopers and Logan Street and that these groups were rivals. The territory claimed by Logan Street included North Spurgeon Street. Shynn described the area around 17th Street and North Spurgeon as a high crime area. According to Shynn, "there was a lot of gang graffiti on Spurgeon north of 17th where the Lopers gang would go up there and tag their name and then it would be crossed out by Logan, or the other way around," plus "a lot of shootings . . . between Logan . . . and . . . the Lopers" in the same area.
Around 8:00 p.m., on Friday, November 29, Shynn was driving southbound along the 1800 block of North Spurgeon Street. Shynn saw defendant riding a bicycle southbound in the middle of Spurgeon. The bicycle did not have a light. He attempted to stop defendant, but defendant pulled into a parking lot, dropped the bicycle, and ran off. Shynn gave chase and eventually saw defendant crouching behind a car. He watched as defendant pulled a gun from his waist and threw it away. Shynn arrested defendant and retrieved the weapon. It was a loaded .380 caliber semiautomatic handgun.
A bicyclist going slower than the normal speed of traffic on a roadway must stay "as close as practical to the right-hand curb" (Veh. Code, § 21202, subd. (a)) and, if on a highway "during darkness," have a light (Veh. Code, § 21201, subd. (d)).
Shynn also testified about an encounter with defendant that occurred several months earlier. On this occasion, Shynn stopped defendant and another man named Jaime De Castilla in the area of 2nd Street and Lacy Street. Defendant was arrested for being in possession of an eight-inch fixed blade knife. During the encounter both defendant and De Castilla admitted being members of the Lopers. Defendant told Shynn that he grew up in the neighborhood and was "walked" into the gang. He also told Shynn the Lopers hated Logan Street gang members and that he was carrying the knife for protection. Shynn issued a S.T.E.P. notice to defendant, documenting his gang involvement and informing him that it may result in increased punishment if he is convicted of criminal activity in the future.
The parties stipulated defendant was later convicted of a felony and placed on probation with a condition that he not use, own, or possess any type of a dangerous or deadly weapon.
"S.T.E.P." is an acronym for the California Street Terrorism Enforcemnt and Prevention Act. (§ 186.20 et seq.) Only the photograph attached to the S.T.E.P. notice was admitted into evidence. --------
The prosecution's second witness was Detective Prewett, a member of the police department's gang suppression unit.
Prewett described the training and experience he received concerning criminal street gangs during his 16 years in law enforcement. Nine of these years were with the Santa Ana Police Department, primarily as a patrol officer and supervising individuals released from state prison under the Post Release Community Supervision Act of 2011. (PRCS; § 3450 et seq.) He had received training on street gangs while at the police academy, through the Orange County Gang Investigators Association and the Santa Ana Police Department. After he joined the latter department, Prewett went through a three-month field training program with senior members of the force, some of whom later were assigned to the gang homicide unit. A portion of his training involved patrolling the city's northeast section. Prewett estimated that during his assignment with the PRCS unit, about 80 percent of the persons he supervised were documented gang members.
Prewett described for the jury what constituted a criminal street gang under California law and explained the nature of traditional Hispanic turf-oriented street gangs. He testified about how persons join a gang and the significance of gang membership, including the obligations of backing up fellow gang members and putting in work for the gang. As for the means used by a gang to exert control over a neighborhood, Prewett identified the use of graffiti and having gang members to post up, i.e., maintain watch in certain areas for approach of the police or rival gang members.
Another topic Prewett explained was the concept of respect in the gang subculture and how it is enforced through the use of fear. He testified that committing crimes, particularly "violent crime[s]" was "the quickest way you're going to earn respect." On the subject of gang rivalries, Prewett stated a gang can assert its superiority and show disrespect for another gang by assaulting its members or entering a rival's territory.
According to Prewett, there are different ways a gang member can elevate his status within a gang. One is by openly committing a violent crime. In addition, entering a rival's neighborhood can improve a gang member's status because it shows his willingness to violate the rival gang's territorial claim.
Additionally, Prewett explained the role of guns in the street gang subculture. He stated guns were "the most important item or possession any gang member or gang can have." Further, "guns belong to the gang" and are shared between gang members.
Prewett identified the Lopers as a criminal street gang. He discussed the history of the gang, the area of the city claimed by it, the gang's approximate number of active participants and members, the symbols and colors associated with it, and the gang's allies and rivals. Based on his experience participating in over 50 investigations and arrests of persons who were members of the Lopers, Prewett testified the gang engaged in a pattern of committing violent crimes, including murder. Through Prewett, the prosecution introduced criminal records of two Lopers gang members, one convicted of possessing methamphetamine for sale and street terrorism and the other convicted of felony grand theft and street terrorism to establish the gang's pattern of criminal activity.
Prewett also identified Logan Street as a criminal street gang in Santa Ana and one of the Lopers' rivals. He summarized Logan Street's history, the area of the city claimed by it, and the approximate number of the gang's active participants and members. According to Prewett, "a number of Logan Street members . . . live in the apartments" along the 1700 and 1800 blocks of North Spurgeon and "usually you will find your Logan Street gang member posted up by" lunch trucks that frequently park in the area. He corroborated Shynn's statement there were a lot of shootings between Logan Street and the Lopers in the area of North Spurgeon in late 2013.
Based on his review of department records, Prewett concluded defendant was an active participant of the Lopers in November 2013. Given a hypothetical scenario based on the facts of the present case, Prewett expressed the opinion that an active gang member carrying a loaded firearm while riding a bicycle through a rival gang's territory on a Friday night would have been done for the benefit of or at the direction of his gang. He noted the gang member could use the gun either offensively to assault a rival gang member, or defensively to protect himself against being assaulted. According to Prewett, the mere act of a gang member's entering a rival gang's territory, even if there is no encounter with a rival gang member, displays disrespect for the rival gang and increases the reputation of his own gang.
DISCUSSION
Defendant Was Properly Convicted of Carrying a Loaded Firearm in Public
Subdivision (a) of section 25850 declares, "A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory." The offense constitutes a felony if the person charged "previously has been convicted of any felony . . . ." (§ 25850, subd. (c)(1).)
Initially, defendant challenges his conviction on count 1, arguing "the prosecution did not present any evidence that [he] was in an incorporated city or other prohibited area." This argument lacks merit.
As with any claim of insufficiency of evidence to support a verdict, we must determine whether, based on the entire record viewed most favorably towards the respondent, there was substantial evidence from which any rational trier of fact could find each element of the crime beyond a reasonable doubt. (People v. Edwards (2013) 57 Cal.4th 658, 715.) Shynn testified at trial defendant was in the City of Santa Ana when he saw defendant riding a bicycle and when he made the subsequent arrest. His testimony constituted substantial evidence supporting a finding on where the crime occurred. (People v. Vega (1971) 18 Cal.App.3d 954, 957 [peace officer's testimony that the "defendant's arrest took place . . . in El Monte . . . was sufficient to sustain a finding" the defendant was carrying a loaded firearm "in El Monte as charged"].)
But defendant contends the evidence failed to establish that Santa Ana is an incorporated city. We find this argument unavailing for two reasons.
First, in California every city is by definition incorporated. (Gov. Code, §§ 20 ["'City' includes 'city and county' and 'incorporated town,' but does not include 'unincorporated town' or 'village'"] & 56043 ["'Incorporation' means the creation or establishment of a city"].) Second, Santa Ana's status as an incorporated city was a matter properly subject to judicial notice. (People v. Vega, supra, 18 Cal.App.3d at pp. 957-958; Evid. Code, § 451, subd. (a).) Defendant claims the appellate record does not reflect the trial court took judicial notice of Santa Ana's incorporated status. Even if true, any error in this respect would clearly be harmless. (People v. Carnesi (1971) 16 Cal.App.3d 863, 867 ["The court's failure to [take judicial of a city ordinance] is but a cosmetic defect," and "[h]ad it done so there would have been nothing the defendant could have done to change the unchallengeable fact that the ordinance existed"]; Vega, at p. 958, fn. omitted [trial court's error in failing to comply with the Evidence Code in taking judicial notice that crime occurred in an incorporated city was "harmless beyond a doubt"].)
In the present case, when instructing the jury on count 1 the trial court stated, "Santa Ana is an incorporated city." Defendant argues this instruction "usurped the jury's fact finding function" and thus violated his constitutional right to have every fact essential to his conviction decided by the jury. Again, we disagree.
Numerous appellate decisions have rejected similar arguments under analogous circumstances. In People v. Brown (1988) 46 Cal.3d 432, a capital murder prosecution arising from the defendant's killing of a Garden Grove police officer, the prosecution alleged as a special circumstance that the defendant killed a peace officer in performance of his duties. The trial court's instruction to the jury on the allegation stated "'For the purposes of these instructions, a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers.'" (Id. at p. 443, italics omitted.) The Supreme Court rejected the defendant's argument this instruction denied him due process by removing one of the essential elements of the allegation from the jury's determination. "The challenged . . . sentence took no element from the jury; it merely instructed the jury on a point of statutory law — a point not open to dispute — that a Garden Grove police officer is a peace officer. [Citations.] The jury was left to make all essential factual determinations, including whether the victim was a Garden Grove police officer." (Id. at pp. 443-444, fn. omitted.)
In reaching this result, Brown distinguished People v. Figueroa (1986) 41 Cal.3d 714, one of the cases on which defendant primarily relies. In Figueroa, the defendant was charged with selling unqualified securities. The Supreme Court held the trial court erred by instructing the jury that "'promissory notes . . . are securities as defined in . . . the Corporate Securities Act.'" (Id. at p. 723.) In distinguishing Figueroa, the Brown court noted "the court here did not instruct the jury that Officer Reed was a peace officer as a matter of law; it merely instructed pursuant to the unquestionable and clear terms of the relevant statutes that Garden Grove police officers are peace officers." People v. Brown, supra, 46 Cal.3d at p. 444, fn. 6.)
In People v. Carrington (2009) 47 Cal.4th 145, the court relied on its holding in Brown to reject a claim that it was error to tell a jury the term "'firearm includes a Smith and Wesson .357 magnum revolver[]'" when instructing on a personal use of a firearm allegation. (Carrington, at p. 189.) In response to the defendant's claim "the instruction in effect directed a verdict on an issue of fact in violation of her Sixth and Fourteenth Amendment rights to a jury trial and to proof beyond a reasonable doubt under the federal Constitution" (ibid.), Carrington held "in the present case, the jury merely was instructed on a point of law that was not open to dispute. The jury was left to decide the factual question of whether defendant used a 'Smith and Wesson .357 magnum revolver' in the commission of the crimes." (Id. at p. 190.)
Other cases have reached similar results. (People v. Avanessian (1999) 76 Cal.App 4th 635, 643-645 [prosecution for uttering false certificates; not error to instruct jury that, as a matter of law, smog certificates were certificates within the meaning of the statute]; People v. Moore (1997) 59 Cal.App.4th 168 185-186 [prosecution for misappropriation of funds by an officer of a "district"; id. at p. 179 [not error to instruct jury "'the Lost Hills Water District is a district for purposes of'" the charge]; People v. Runnion (1994) 30 Cal.App.4th 852, 855-856 [in robbery prosecution where the defendant was alleged to have personally used a firearm, not error to instruct jury "'[t]he word "firearm" includes handgun'"].)
In the present case, the trial court properly instructed the jury on all of the elements necessary to support a conviction under section 25850, including the fact that it needed to find "the defendant was in a public place or on public street in an incorporated city." The jury was left to determine whether defendant was in a public place or on a public street in Santa Ana. Thus, there was no instructional error here.
The Conviction on Count 2 Did Not Violate the Constitutional Prohibition Against Double Jeopardy
Next, defendant contends it was error to allow the jury to return guilty verdicts on both counts 1 and 2 because the latter crime is a necessarily included offense of count 1. This claim is without merit.
The Supreme Court's decision in People v. Reed (2006) 38 Cal.4th 1224 is directly on point. There a defendant was convicted of three weapons crimes, including being a felon in possession of a firearm and carrying a loaded firearm in public. The trial court sentenced defendant on the felon in possession of a firearm count and stayed sentencing on the other charges.
On appeal, the defendant argued it was error to convict him on all three crimes. The Supreme Court disagreed. It recognized prior decisions had employed two tests for determining whether one crime is a necessarily included offense of another crime. "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed, supra, 38 Cal.4th at pp. 1227-1228.) However, for purposes of the prohibition against multiple convictions for necessarily included offenses, Reed held a court only considers the statutory elements test. "Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (Id. at p. 1231.)
As noted, section 25850, subdivision (a) provides, "A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory." Section 29800, subdivision (a)(1) states, "Any person who has been convicted of a felony . . . and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony." As can be seen, these crimes are not necessarily included offenses. The first crime requires a person to carry, either on his or her person or in a vehicle, a loaded firearm in a prohibited area. To convict a person of the latter crime the person must have been convicted of a felony and own, purchase, receive, or have possession or control of a firearm.
While defendant insists his argument is premised on the statutory elements of each offense, he in fact is relying on the accusatory pleading test to support his claim. In setting forth the elements, he cites to the jury instructions given in this case. The instruction for count 1 included the requirement that, "at the time that the defendant carried a loaded firearm, he had previously been convicted of a felony." But the trial court added the latter element because that is how the crime was charged in count 1 of the information.
The fact of a defendant's prior conviction of a felony constitutes a sentencing factor that renders a conviction of carrying a loaded firearm in public a felony. It is not an element of the offense. (People v. Hall (1998) 67 Cal.App.4th 128, 134-135.) While it was probably error for the trial court to have added the additional element when instructing the jury on count 1, it was clearly harmless. The evidence of defendant's prior felony conviction was relevant to count 2 and, in any event, defendant stipulated to having previously being convicted of a felony. (Id. at p. 135.)
Consequently, defendant was not erroneously convicted of both carrying a loaded firearm in public and being a felon in possession of a firearm.
The Evidence Supported the Criminal Street Gang Enhancement Findings
Finally, defendant mounts a multi-pronged attack on the findings he committed each of the substantive crimes for the benefit of, at the direction of, or in association with a criminal street gang.
First, defendant argues the evidence fails to support the conclusion that he possessed the gun for the benefit of the gang with the specific intent to assist criminal conduct by gang members. In addition, he claims the prosecution failed to establish the Lopers' primary activities qualified it as a criminal street gang. Defendant also challenges the admissibility of Prewett's testimony on the ground it lacked any evidentiary basis.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.'" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
"There are two 'prongs' to the gang enhancement under section 186.22, subdivision (b)(1). [Citation.] The first prong requires that the prosecution prove the underlying felony was 'gang related.'" (People v. Weddington (2016) 246 Cal.App.4th 468, 484.) This requirement is established by showing the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. (People v. Albillar, supra, 51 Cal.4th at p. 60.) "'The second prong 'requires that a defendant commit the gang-related felony "with the specific intent to promote, further, or assist in any criminal conduct by gang members."'" (Weddington, at p. 484.)
Here, defendant, an admitted member of the Lopers gang, was observed riding through an area claimed by the rival Logan Street gang only months after telling Shynn that the Lopers hated Logan Street. Both Shynn and Prewett testified there had been a significant amount of recent criminal activity, including shootings, between the two gangs in the area of North Spurgeon Street. Prewett testified black was one of the colors associated with the Lopers, and at the time his arrest defendant was wearing a black-colored jacket. According to Prewett, a gang member entering a rival's territory is a means by which one gang can exert its superiority over the rival because it constitutes an act of disrespect. Defendant's claim that the gang enhancement cannot be committed when a person acting alone has been rejected. (People v. Rios (2013) 222 Cal.App.4th 542, 545-546, 560-564.)
As for defendant's intent in riding through territory claimed by the Logan Street gang armed with a loaded gun, "[t]here is rarely direct evidence that a crime was committed for the benefit of a gang. For this reason, 'we routinely draw inferences about intent from the predictable results of action. We cannot look into people's minds directly to see their purposes. We can discover mental state only from how people act and what they say.'" (People v. Miranda (2011) 192 Cal.App.4th 398, 411-412; People v. Bloom (1989) 48 Cal.3d 1194, 1208 ["Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction"].) Shynn testified that only months before his arrest on the current charges, defendant had not only acknowledged he was a member of the Lopers gang, but said his gang hated Logan Street, and both prosecution witnesses corroborated the fact there had been recent violent confrontations between the two gangs.
Defendant places heavy reliance on the lack of any evidence Logan Street gang members were present and saw defendant passing through their claimed territory. While the crime must be for the benefit of a gang, there is no requirement that the offense succeed in achieving that benefit. To support his case, defendant cites and relies on several appellate decisions that found the evidence insufficient to support the gang enhancement. But the question here is whether the evidence presented in this case sufficed to support the jury's true findings.
The attack on Prewett's testimony also lacks merit. "In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs." (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) "'Expert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support the . . . gang enhancement." (People v. Vang (2011) 52 Cal.4th 1038, 1048.) In a pretrial hearing under Evidence Code section 402, the defense had challenged Prewett's qualifications to testify as a gang expert. The trial court found sufficient evidence to allow him to testify. That finding "is governed by the deferential abuse of discretion standard and 'will not be disturbed absent a showing of manifest abuse.' [Citation.] 'Error regarding a witness's qualifications as an expert will be found only if the evidence shows that the witness "'"clearly lacks qualification as an expert."'"'" (People v. Panah (2005) 35 Cal.4th 395, 478.)
Further, Prewett testified to his training on criminal street gangs and his many years of experience in dealing with Santa Ana gang members. His testimony was also corroborated by Shynn, who had spent several months patrolling the area of the city where both the Lopers and Logan Street claimed territory.
Thus, the evidence presented at trial sufficed to support the jury's true findings on the gang enhancement.
There Was No Violation of Defendant's Confrontation Right
Defendant's final contention is that the gang enhancement findings must be reversed because "Prewett's testimony . . . was based on conversations with other gang members and other police officers," and thus its admission violated the Sixth Amendment's confrontation clause. This issue is the subject of the California Supreme Court's recent decision in People v. Sanchez (2016) 63 Cal.4th 665.) At our request, the parties submitted letter briefs on the applicability of Sanchez to this case.
In Sanchez, the defendant was convicted of illegally possessing a loaded weapon and drugs and the jury returned true findings on the gang enhancement. Through the gang expert, the prosecution presented S.T.E.P. notices, police reports, and field information cards, with the expert relating the details of the various document to the jury. Even though the prosecution's gang expert had no previous contact or involvement with the defendant, he relied on the information contained in the foregoing documents to conclude the defendant was an active gang member and to support his conclusion the defendant's crimes benefitted his gang. (People v. Sanchez, supra, 63 Cal.4th at pp. 672-673.)
The Supreme Court reversed the gang enhancement findings. In a lengthy opinion reviewing the law concerning expert testimony, the rules governing the admissibility of hearsay evidence, and the effect of the Sixth Amendment's confrontation clause on use of testimonial statements, the court held as follows: "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. It cannot logically be maintained that the statements are not being admitted for their truth." (People v. Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) Thus, "[l]ike any other hearsay evidence, it must be properly admitted through an applicable hearsay exception," or "admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." (Id. at p. 684.) Further, "[i]f 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.)
Sanchez held it was permissible for an expert to testify about "general gang behavior or [describe a particular] gang's conduct and its territory" (People v. Sanchez, supra, 63 Cal.4th at p. 698), explain a gang's "symbol[s]," and even "give an opinion that the presence of a" symbol "shows the person belongs to the gang" (id. at p. 677). But the court found in that case, it was error to allow the gang expert to rely on "case-specific testimony as to defendant's police contacts . . . to prove defendant's intent to benefit the . . . gang when committing the underlying crimes to which the gang enhancement was attached," and "to establish defendant's [gang] membership." (Id. at p. 698.)
Applied to the facts of the present case, we conclude no error occurred. Prewett's testimony about gangs in general and his descriptions of the Lopers and Logan Street gangs constituted admissible "background testimony about general gang behavior or descriptions of the . . . gang[s'] conduct and [their] territor[ies]," which "was relevant and admissible evidence as to the . . . gang[s'] history[ies] and general operations." (People v. Sanchez, supra, 63 Cal.4th at p. 698.) The testimony concerning defendant's gang membership and the gang's hatred of Logan Street was presented through Shynn who recounted defendant's statements during their prior encounter. This evidence was admissible under the party admission exception to the hearsay rule. (Evid. Code, § 1220.) Although Shynn testified to providing defendant with a S.T.E.P. notice in this case, only the photograph attached to it was introduced into evidence. Consequently, Prewett's opinion that defendant's crimes were committed for the benefit of the Lopers given in response to a hypothetical based on the facts was also admissible.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.