Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2009008639 of Ventura, Kevin G. DeNoce, Judge
Lori E. Kantor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael A. Katz, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Jaime Valencia appeals from the judgment entered following his conviction by a jury of possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)), street terrorism (§ 186.22, subd. (a)), and misdemeanor resisting a peace officer. (§ 148, subd. (a)(1).) Appellant admitted that he had been previously convicted of one prior serious felony (§ 667, subd. (a)(1)) and one serious or violent felony within the meaning of California's "Three Strikes" law. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) Appellant was sentenced to prison for nine years.
All statutory references are to the Penal Code.
On respondent's motion, the trial court dismissed the misdemeanor offense pursuant to section 1385.
Appellant contends that (1) the admission of a gang expert's testimony violated his Sixth Amendment right of confrontation, (2) the trial court misinstructed the jury, and (3) the minutes and abstract of judgment erroneously show that the trial court imposed restitution fines pursuant to sections 1202.4, subdivision (b), and 1202.45. Only the third contention has merit. We direct the trial court to correct the minutes and abstract of judgment to show that restitution fines were not imposed. In all other respects, we affirm.
Facts
People's Evidence
Robert Valenzuela, an Oxnard police officer, was driving his marked police motorcycle when he saw a Pontiac occupied by three persons: the driver, a passenger seated in the front passenger seat, and a passenger seated in the rear seat behind the driver. The passenger in the rear seat was appellant. Valenzuela noticed that appellant was not wearing the shoulder harness portion of his safety belt. Valenzuela drove behind the Pontiac and activated his motorcycle's emergency lights and siren to effect a traffic stop. The driver of the Pontiac did not stop, and a chase ensued.
During the chase, it appeared to Valenzuela that appellant "was attempting to discard or trying to conceal something." He saw appellant's "head duck down" and then "come back up." It also appeared that appellant "was trying to throw something out of the [open rear] window."
The Pontiac collided with a parked vehicle and came to a stop. The three occupants of the Pontiac got out and "started to run [in] all different directions." The driver ran toward a garage and jumped a fence into the backyard of a residence. The person who had been seated in the front passenger seat ran down Cortez Street. Appellant ran into a driveway and then through the front yard of a residence. While running, appellant "pulled an item out from his windbreaker" and discarded it. On the ground where appellant had discarded the item, Valenzuela found a sawed-off rifle.
Deputy Randy Skaggs is a detective in the gang unit of the Ventura County Sheriff's Department. He gave expert testimony on the El Rio criminal street gang, which operates in the El Rio area of Ventura County. Skaggs opined that appellant is an active member of the El Rio gang. His opinion was based primarily on documents in a file maintained by the sheriff's gang unit. The documents included reports and field interview cards prepared by law enforcement officials.
Defense Evidence
Prior to trial, Crystal Jimenez was conditionally examined because she was moving to Texas. During the trial, appellant played a videotape of her testimony. Jimenez testified as follows:
Jimenez was inside her residence when the Pontiac collided with her neighbor's parked vehicle. While standing behind a screen in the open doorway of her residence, she saw three men get out of the Pontiac and run away. Two men were running through a driveway. One of the two men had come from the front driver's side of the Pontiac. He reached for something and "just threw it and just let it fly in the air." The object appeared to be a rifle. The other man who was running through the driveway had come from the front passenger side of the car. The third man, who had come from the rear of the Pontiac, was running down Cortez Street. Jimenez walked to the spot where the object had been discarded by the man who had come from the front driver's side of the vehicle. She saw a firearm on the ground.
Sixth Amendment Right of Confrontation
Appellant contends that the admission of Deputy Skaggs's expert testimony violated his Sixth Amendment right of confrontation. The violation allegedly occurred because Skaggs's testimony was based on testimonial hearsay in the form of reports and field investigation cards prepared by law enforcement officials who did not testify at trial. Appellant relies on Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford) and Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527, 174 L.Ed.2d 314] (Melendez-Diaz). (AOB 13-37)
Appellant's contention lacks merit. "Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion. Crawford itself states that the Confrontation Clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' [Citation.]" (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210; see also People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 ["Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned"].)
In the instant case, the trial court instructed the jury that matters relied upon by Skaggs in forming his opinion must not be considered for their truth: "The things that [Deputy] Skaggs has relied upon and will rely upon to form his opinion are not being admitted for the truth but rather to form the basis of his opinion.... You can consider the basis of this witness's opinion only as it reflects on the opinion and not for the underlying truth of those matters. Expert witnesses in forming their opinions may rely in part on hearsay statements that are not otherwise admissible. The jury may consider those hearsay statements to assess the opinions of an expert, ... but not for the truth of the matter." " 'We of course presume "that jurors understand and follow the court's instructions." [Citation.]' " (People v. Mills (2010) 48 Cal.4th 158, 200.)
The recent case of Melendez-Diaz does not support appellant's contention that his right of confrontation was violated. In Melendez-Diaz the United States Supreme Court concluded that affidavits reporting the results of forensic analysis are testimonial evidence. The affiants, therefore, are " 'witnesses' subject to the defendant's right of confrontation under the Sixth Amendment." (Melendez-Diaz, supra, 129 S.Ct. at p. 2530.) The Supreme Court reversed the defendant's conviction because the trial court had admitted analysts' affidavits showing that the substance seized from his person was cocaine. At trial the defendant objected that the Confrontation Clause "required the analysts to testify in person." (Id., 129 S.Ct. at p. 2531.) The Supreme Court reasoned: "Absent a showing that the analysts were unavailable to testify at trial and that [defendant] had a prior opportunity to cross-examine them, [defendant] was entitled to be ' "confronted with" ' the analysts at trial. [Citation.]" (Id., 129 S.Ct. at p. 2532, fn. omitted.)
Melendez-Diaz is distinguishable. In Melendez-Diaz no expert testified concerning the analysis of the substance in question. Here, in contrast, Deputy Skaggs testified as an expert and was subject to cross-examination. Furthermore, in Melendez-Diaz the analysts' affidavits were offered to prove the truth of the matter stated: that the substance in question was cocaine. Here, the reports and field interview cards relied on by Deputy Skaggs were not used to prove the truth of their contents. Instead, they were used to show the basis for Skaggs's expert opinion that appellant was an active member of the El Rio gang. Thus, the admission of Deputy Skaggs's expert testimony did not violate appellant's Sixth Amendment right to confront the witnesses against him.
Because we conclude that appellant's right of confrontation was not violated, we need not consider respondent's contention that appellant forfeited the issue by failing to object at trial.
Jury Instructions
A convicted felon violates section 12021, subdivision (a)(1), when he intentionally possesses a firearm. Possession may be either actual or constructive. (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.) The trial court instructed the jury on both actual and constructive possession. Appellant contends that the instruction on constructive possession was erroneous because "there was no supporting evidence of anything other than actual possession." The instruction on constructive possession provided: "Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has actual control over it or the right to control it, either personally or through another person."
"A party is entitled to a requested instruction if it is supported by substantial evidence. [Citation.] Evidence is '[s]ubstantial' for this purpose if it is 'sufficient to "deserve consideration by the jury, " that is, evidence that a reasonable jury could find persuasive.' [Citation.] At the same time, instructions not supported by substantial evidence should not be given. [Citation.] 'It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. [Citation.]' [Citation.]" (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.)
The instruction on constructive possession is supported by substantial evidence in the form of Crystal Jimenez's testimony. Based on her testimony, it is reasonable to infer that the driver of the Pontiac had actual possession of the sawed-off rifle. Jimenez testified that the man who discarded the firearm had come from the front driver's side of the car. According to Officer Valenzuela, appellant was not the driver of the Pontiac. Instead, he was seated in the rear seat behind the driver. Jimenez testified that the man in the rear seat had run down Cortez Street. Valenzuela, on the other hand, testified that the man who had run down Cortez Street had been seated in the front passenger seat.
Based on the totality of the circumstances, it is reasonable to infer that, if the driver had actual possession of the firearm, appellant had constructive possession. Appellant was a passenger in the Pontiac while it was being pursued by Officer Valenzuela. Valenzuela saw appellant's head duck down and then come back up, as if he were trying to conceal something. It is reasonable to infer that appellant was trying to conceal the firearm. Moreover, when the Pontiac came to a stop, appellant got out of the car and ran away. "The jury could reasonably have inferred that [appellant's] flight demonstrated consciousness of guilt." (People v. Garrison (1989) 47 Cal.3d 746, 773.)
The situation here is similar to People v. Taylor (1984) 151 Cal.App.3d 432. In Taylor the defendant was driving a car that was being pursued by the police. A passenger was seated next to the defendant in the front seat. During the pursuit, the police saw a gun thrown from the passenger window. The car came to a stop after colliding with several other vehicles, and the defendant fled the scene. He was convicted of possessing a loaded firearm in public. The defendant contended that "the evidence he possessed the gun was insufficient as a matter of law." (Id., at p. 436.) In rejecting the defendant's contention, the court reasoned: "The trial court was aware the gun was thrown from the passenger side of the car and Taylor was the driver. The court noted, however, the gun was thrown soon after the chase began and Taylor's driving represented an unequivocal attempt to avoid capture. A conviction may be supported by circumstantial evidence of constructive possession. The mere fact the evidence supports an inference Taylor did not personally possess the gun does not require reversal. [Citation.] There was sufficient evidence Taylor had constructive possession of the firearm." (Ibid.)
Appellant argues that, if he had been convicted of possessing the sawed-off rifle on a constructive possession theory, "the only way that [he] could have been convicted of street terrorism would have been on a[n] aiding and abetting theory on which [the jury] received no aiding and abetting instructions." But if appellant had constructive possession of the firearm, he would have been a perpetrator of the firearm offense rather than an aider and abettor. Accordingly, aiding and abetting instructions were unwarranted. Street terrorism in violation of section 186.22, subdivision (a), "applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor." (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.)
Restitution Fines
The trial court's minutes and the abstract of judgment show that the trial court imposed a restitution fine of $500 (§ 1202.4, subd. (b)) and a parole revocation restitution fine in the same amount to be suspended unless parole is revoked. (§ 1202.45.) But the reporter's transcript of the sentencing hearing shows that the trial court did not impose any restitution fines. The court stated without objection, "The court finds the defendant doesn't have the ability to pay."
"The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. [Citation.]... [T]he clerk's minutes must accurately reflect what occurred at the [sentencing] hearing." (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. [Citations.]" (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.)
"[S]ubdivision (b) of section 1202.4 requires imposition of a restitution fine 'unless [the trial court] finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.' (§ 1202.4, subd. (b); italics added.)" (People v. Zackery, supra, 147 Cal.App.4th at p. 388.) Here, the trial court declined to impose a restitution fine because "the defendant doesn't have the ability to pay." But "[a] defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine." (§ 1202.4, subd. (c).)
Respondent contends that the matter should be remanded to the trial court so that it may properly exercise its discretion whether to impose restitution fines. But since respondent failed to object when the trial did not impose the fines, respondent has waived the issue on appeal. Our Supreme Court so held in People v. Tillman (2000) 22 Cal.4th 300, 303. The Supreme Court reasoned: " 'Although the [trial] court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.' [Citation.]" (Ibid.)
People v. Zackery, supra, 147 Cal.App.4th 380, is of no assistance to respondent. In Zackery the minutes and abstract of judgment showed that the trial court had imposed restitution fines, but the reporter's transcript of the sentencing hearing showed that it had not imposed the fines. Without mentioning Tillman or considering the waiver issue, the Zackery court decided to "remand the case to the trial court to determine whether to impose restitution fines." (Id., at p. 389.) "It is axiomatic, of course, that a decision does not stand for a proposition not considered by the court. [Citations.]" (People v. Harris (1989) 47 Cal.3d 1047, 1071.)
Disposition
The trial court is directed to correct its minutes for the sentencing hearing of July 29, 2009, by striking the references to the imposition of restitution fines pursuant to sections 1202.4, subdivision (b), and 1202.45. The trial court is further directed to prepare a corrected abstract of judgment showing that restitution fines were not imposed. The trial court shall transmit a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.