Opinion
H043028
04-03-2018
THE PEOPLE, Plaintiff and Respondent, v. FELIX ARMANDO VILLAR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1239100)
A jury found defendant Felix Armando Villar guilty of the felony offense of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)). It found true that defendant committed the offense "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members" within the meaning of section 186.22, subdivision (b)(1). Defendant was sentenced to 25 years to life as a third strike offender under the Three Strikes law (§ 667.5, subd. (b)) consecutive to a two-year gang enhancement term (§ 186.22, subd. (b)(1)(A)).
All further statutory references are to the Penal Code unless otherwise indicated.
The sentence was ordered to be served consecutive to the sentence imposed in two other cases (case Nos. C1362621 & C1477998).
On appeal, defendant contends that (1) the evidence was insufficient to prove the gang enhancement allegation that (2) the admission of the gang expert's testimony regarding case-specific facts violated the federal constitutional right to confrontation and state hearsay law as explicated in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), that (3) the trial court erred in sentencing him as a third strike offender rather than as a second strike offender under the Three Strikes law, and that (4) if he was properly sentenced as a third strike offender, the trial court should have imposed a minimum parole eligibility term of 15 years under section 186.22, subdivision (b)(5), instead of imposing a two-year enhancement term under section 186.22, subdivision (b)(1)(A).
We conclude that the trial court erroneously admitted gang expert testimony in violation of the Sixth Amendment's confrontation clause and that the error was not harmless. Accordingly, we will reverse the jury's true finding on the gang enhancement allegation (§ 186.22, subd. (b)(1)(A)) and remand the case for further proceedings.
I
Evidence
Evidence of Being a Felon in Possession of a Firearm
On August 13, 2012, Marisol M. was living in apartment No. 1 of an apartment complex on South 19th Street near Roosevelt Park in San Jose. On that date, Esther D. was living in apartment No. 4 in the same complex. The entrances to those two apartment units faced each other across a hallway. Their bathrooms, which were upstairs, adjoined, back to back.
On the night of August 13, 2012, defendant, his girlfriend, and several children, including the couple's month-old, baby boy, came to Esther's apartment and stayed overnight. Defendant was Esther's cousin. The parties stipulated that defendant was "a member or associated with a criminal street gang, Roosevelt Park Locos." At that time, defendant had a "NORTE" tattoo across the back of his head.
At approximately 10:40 to 10:50 p.m. on August 13, 2012, when Marisol was in the living room of her apartment with her husband and three children, she heard a "very loud sound," like the sound of something falling on the ground, which seemed to come from another apartment.
The next morning, Marisol went into the bathroom. There she saw a piece of ceramic and a piece of metal on the floor by the toilet, below a hole in the wall that was near the upper, right hand side of the toilet tank. Marisol called the building manager, Pablo H.
Pablo went to Marisol's apartment to check out the situation, and he informed her that the metal object was a bullet. He called the police. F.G., a friend of Pablo, was with Pablo on South 19th Street when Pablo called the police.
On August 14, 2012, several San Jose police officers separately responded to a call concerning a shooting that had occurred the previous night. Officers Oscar Ramirez and Tom Pham were the first to arrive. Officer Ramirez contacted Pablo, the reporting party.
Officers Ramirez and Pham, accompanied by Pablo, went to apartment No. 1 and spoke with Marisol. They walked upstairs to the bathroom, and Pablo pointed out the hole in the wall. Either Pablo or Marisol showed Officer Ramirez the piece of metal, and the officer immediately recognized it as a bullet fragment. Officer Ramirez concluded that the hole in the bathroom wall of apartment No. 1 was an exit hole.
Officers Ramirez and Pham then went to apartment No. 4 and knocked on the door. They asked Esther to see her bathroom, and she brought them upstairs to the bathroom. After they looked inside, the officers showed Esther a hole in the bathroom wall, to the left of the toilet tank. Officer Enrique Duran, who arrived after the other two officers, joined them in apartment No. 4, and the other officers showed Officer Duran the bullet hole in the wall, an entry hole. Testifying at trial as an expert on entry and exit holes resulting from bullets fired from weapons, Officer Ramirez opined that a bullet entered the wall of apartment No. 4 and traveled through the wall into apartment No. 1, where it landed on the ground.
While the officers were investigating, F.G. remained on the walkway near the street entrance to the apartment complex. From there, F.G. could see the stairs leading down from apartment Nos. 1 and 4 and the entrance to the laundry room next to the walkway on the ground floor. F.G. observed a male, later identified as defendant, who was wearing long, gray shorts and black and red sandals, and a younger, male teenager, later identified as Esther's son R.B., walk down those stairs. F.G. got "a good look" at defendant, and he saw that defendant had his hand in the front right pocket of his shorts and there was a "medium"-sized "bulge" in the pocket. Defendant and R.B. went into the laundry room for "[a] minute-and-a-half to two" minutes.
The laundry room was reachable from apartments Nos. 1 and 4 by walking down the stairs, turning left at the walkway, and continuing a short way down the walkway. The laundry room was shallow and small, and it had no door. If one looked into the laundry room, one could see a water heater to the left of the doorway, an adjacent washing machine against the back wall, and two stacked dryers in the right-hand, back corner of the room, next to the washing machine. The front of the top dryer had a roman numeral XIV scratched into it. There was a space in the left-hand, back corner between the water heater and the washing machine.
F.G. observed that, after defendant and R.B. left the laundry room, defendant remained at the base of the stairs leading to apartment Nos. 1 and 4. Defendant was smoking a cigarette and looked a "little bit" nervous; his hand was shaking. Defendant no longer had a lump in his pocket. R.B. stayed with defendant. A female came down the stairs and handed a baby boy to defendant, and he held the baby for a while.
F.G. went into the laundry room, where he saw a black backpack in the space behind the washing machine. When F.G. reached over the washing machine and touched the backpack, he felt something hard that he thought was a gun.
F.G. walked past Officer Ramirez and said in a "really quiet" voice in Spanish that he needed to speak to the officer. F.G. informed the officer of his observations because he thought the circumstances were suspicious. After learning about the backpack in the laundry room from F.G., Officer Ramirez asked for Officer Duran's help in investigating.
When Officer Duran entered the laundry room, he noticed a black backpack on the floor in the space behind the water heater and the washer. The officer picked up the backpack, and found a gun wrapped in a rag inside. Officer Ramirez unwrapped the gun. It was a large, black, loaded, semiautomatic, .40-caliber, Smith & Wesson handgun.
Officer Duran took a statement from F.G. The officer arrested defendant. Officer Duran spoke with R.B. The San Jose Police Department booked the weapon.
The parties stipulated that the gun seized in the laundry room was tested but that the DNA was inconclusive and that no useable fingerprints were found on it. They also stipulated that "the gun found in the laundry room was the weapon that was used to fire the bullet that was ultimately found" in apartment No. 1. In addition, the parties stipulated to the fact that defendant was a convicted felon for purposes of the offense charged in count 1 (being a felon in possession of a firearm).
Evidence Related to the Gang Enhancement
During his questioning of Esther D. at trial, the prosecutor showed her a photograph of nine persons. Esther identified herself, her son R.B., and most others in the photograph. In the picture, Esther is in the middle and Esther's son is standing between her and a young male that she identified as G.R. The photograph was taken approximately a year and a half to two years before the trial in November 2012.
Esther claimed that the hand sign she was displaying in the photograph was "a peace sign." Esther acknowledged that her son R.B. had an "E.S.S.J." tattoo on the inside of his right forearm and that the initials stood for "East Side San Jose." Esther testified that her son loved defendant and respected his elders.
Nicholas Bronte, a detective in the San Jose Police gang investigations unit, testified as an expert in Hispanic street gangs. He was responsible for investigating defendant after his arrest on August 14, 2012. Detective Bronte reviewed the investigative reports of the officers involved in defendant's arrest, and he spoke with other officers about the case.
In Detective Bronte's opinion, the Norteños were a criminal street gang. The detective indicated that there were many subset gangs under the umbrella of the Norteño movement, including but not limited to Roosevelt Park Locos (RPL), Varrio Mas Chingon (VMC), Westside Mob, and Varrio Meadow Fair.
Detective Bronte indicated that Norteños and its subset gangs identify with the color red, the letter "N," and the number 14 since "N" is the 14th letter of the alphabet. The number 14 sometimes is represented in tattoos as "1 dot and 4 dots," the roman numeral XIV, or "the numbers '1' and '4.' " A Huelga bird is also an extremely common symbol used by such gangs, and the symbol was used by the RPL. The primary rivals of the Norteños were Sureño gangs, which were located primarily in southern California and identified with the color blue, the number 13, and the letter "M." Sometimes the numbers 14 and 13 were abbreviated to a 4 and a 3, respectively.
The detective confirmed that the Norteños and RPL were each "an ongoing association or organization comprised of three or more people." He described the RPL as an informal gang because he had "never seen any sort of manifesto" belonging to that gang.
The prosecutor showed Detective Bronte the same photograph of nine persons that had been shown to Esther. The detective recognized some of the individuals in it, including Esther whom he remembered from the preliminary hearing. He observed that the photograph's "overriding color theme" was red, the color with which Norteños and their subsets identified. The detective indicated that "more than one hood [was] represented in that picture." Most of the individuals in the photograph were displaying gang hand signs.
Looking at the photograph, Detective Bronte identified Scott C. as a member of the RPL. Scott was wearing a red Bulls jersey and flashing the letter "N" for Norteños. The detective identified Tiffany C. as "a Northerner." She was flashing an "N.S." for "North Side." The detective recognized Sergio D., who was standing at the back of the group, as someone with whom he had contact as part of this case.
In the photograph, Detective Bronte also recognized G.R., who was wearing a black T-shirt with a very large, red letter "C" on the front and appeared to be flashing the letter "C." He said that G.R. belonged to VMC, which was as he had indicated a Norteño subset. The person standing next to G.R., whom Esther had identified as her son R.B., but whom the detective did not know, was wearing a Cincinnati Reds ball cap and was holding up the letter "M." In Detective Bronte's opinion, R.B. and G.R. were together "holding up an 'M' and a 'C' for Varrio Mas Chingon." In the detective's opinion, the red letter "C" on G.R.'s T-shirt stood for "Chingon." In his opinion, the Cincinnati Reds ball cap worn by R.B. signified that he belonged to VMC. Another person in the back of the group, whom the detective did not know, appeared to be flashing an "M" hand sign, which could stand for VMC, Westside Mob, or Meadow Fair, all Norteño subsets.
The detective confirmed that Norteño gang members had "established a pattern of criminal activity by means of felony convictions in the court system . . . ." The Norteño gang claimed the "geographical area" "anywhere north of Bakersfield in California." Detective Bronte indicated that the home base of the Norteño RPL was Roosevelt Park in downtown San Jose and that RPL claimed that territory as its own. He indicated that, within the prior 12 months, there had been at least 28 incidents of gang-related violence at the park.
The prosecutor questioned the detective about five certified records of conviction to establish a pattern of criminal gang activity. None of the felony criminal complaints alleged a gang enhancement, and no gang enhancement allegation was admitted or found true in any of those cases.
Three of the certified records of conviction reflected that a felony complaint alleged that Elizabeth Campos, Jesus Luis Perez, and Reno Corral committed a robbery on or about June 15, 2010. The record of Campos's conviction reflected that she was convicted of burglary. The records of Perez's and Corral's convictions reflected that each of them had pleaded no contest to felony grand theft of a person (§ 487, subd. (c)) and to making criminal threats (§ 422), a misdemeanor.
Based on his review of the case, Detective Bronte testified that both Campos and Perez previously had been documented as "Northerner" gang members. Corral was "a very visible [RPL] gang member," who was known to be a gang member by other gang members and other persons in the community.
According to Detective Bronte, the three of them had run into a store and taken beer. Campos, Perez, and Corral each had a role in the incident. The detective described Campos as the "main perpetrator"; she had both threatened and punched the cashier, who had not sustained any injuries. One of the others had grabbed the beer.
In Detective Bronte's opinion, Campos committed the robbery for the benefit of or in association with RPL, codefendant Corral's gang. He similarly opined that Perez acted "for the benefit [of] and at the direction [of] or [in] association with the Norte[ñ]o street gang, [RPL]." In his opinion, Corral acted for the benefit of RPL and the Norteño street gang. His opinions were based on the police reports. The detective explained that a robbery benefits a gang because it "terrorizes the public" and enhances their own reputation because respect is synonymous with fear in gangs.
A fourth certified record of conviction of second degree burglary was admitted into evidence. A felony complaint alleged that Joel Cortez committed second degree burglary on or about March 5, 2009, and Joel Cortez pleaded no contest to that crime. The record of conviction did not reflect that an associated gang enhancement was alleged, admitted, or found true.
Detective Bronte was familiar with Joel Cortez from his review of the case for purposes of the present case. The detective testified that prior to the offense on March 5, 2009, Joel Cortez had been documented as a RPL Norteño gang member. According to the detective, Joel had smashed a couple of windows, walked into a store, and walked out with "a shopping cart loaded with stuff." The detective indicated that a burglary benefits a gang because the stolen goods can be sold for "financial gain" and that the money can be used to support the gang's drug-related activities and buy weapons.
A fifth certified record of conviction was admitted into evidence. A felony complaint alleged that Richard Anthony Cortez committed two assaults with a deadly weapon, a knife, (former § 245, subd. (a)(1)) on or about July 19, 2006, and he pleaded no contest to both counts. The record of conviction did not reflect that any gang enhancements were alleged, admitted, or found true. Detective Bronte was familiar with Richard Cortez from the detective's "review of his case in relation to this case." The detective testified that Richard Cortez told the investigating officer in that case that he was a member of RPL and a sister or another family member also indicated that he was an RPL member.
Detective Bronte identified defendant in court. From reviewing the available part of defendant's criminal record, the detective was aware that defendant previously had been contacted by law enforcement. The detective had never personally contacted defendant in the past.
The detective testified that in San Jose Police Department case No. 98-231-033, police saw defendant driving a car, which was determined to be stolen when police ran its license plate. When the police attempted to pull defendant over, he drove off and there was "a very brief pursuit." Defendant jumped from the vehicle while it was moving, and it continued to roll, causing "a wreck." After a short foot pursuit, defendant was taken into custody and booked for possession of a stolen vehicle and hit and run. When defendant was first spotted, he was a few blocks from Roosevelt Park.
Detective Bronte testified that in a second case, San Jose Police Department case No. 99-141-0108, police contacted defendant in May 1999 and found him in possession of drug paraphernalia. When police attempted to take defendant into custody, he fought with the officers. Defendant was subsequently arrested or booked for possession of drug paraphernalia, being under the influence of a stimulant, namely PCP, and battery on an officer.
At the time of his arrest in that 1999 case, defendant was wearing "an oversized red [T]-shirt." The detective reiterated that "red is a Norte[ñ]o color." Detective Bronte found the "NORTE" tattoo on the back of defendant's head, which was documented in 1999, more telling in identifying defendant as a Norteño gang member than the color of his shirt.
Detective Bronte testified about a third case, San Jose Police Department case No. 00-168-1029. He was familiar with the case because he had "reviewed it in relation to this case." The case involved an incident that occurred on June 16, 2000. San Jose police contacted defendant in the area of North 20th Street near Roosevelt Park, which was claimed by RPL. Defendant was found in possession of narcotics. When police attempted to detain him, defendant fought back. Defendant was arrested and booked for possession of PCP, being under the influence of a stimulant, and resisting arrest.
In that 2000 case, defendant admitted being a gang member of RPL, and he stated that he was "jumped in" during 1994. The police report documented that defendant had the following tattoos: "SAN JO" (short for "San Jose") on his abdomen, "NORTE" on his head, "Norte[ñ]o" on the back of his neck, "SJXIV" on his right elbow, and "XIV" and "RPL's" on his chest. Defendant had been wearing a belt with the letter "N" (a Norteño symbol) on the buckle. According to Detective Bronte, the tattoos signified to everybody familiar with gangs that defendant was a Norteño from San Jose and that his subset was RPL. Although Detective Bronte had not personally observed defendant's body, the parties stipulated that defendant possessed the tattoos described by the detective during his testimony.
Detective Bronte testified about a fourth case, San Jose Police Department case No. 01-087-1021. In that case, San Jose Police contacted defendant on March 28, 2001 in the area of North 17th Street and St. John, not far from Roosevelt Park. Defendant was found to be under the influence of, and in possession of, narcotics. He was arrested and booked into county jail for the sale of PCP. At the time of his arrest, defendant was "wearing a red hat that had the letters 'RL' on it, and a red shirt." The detective testified that the sale of PCP is an offense listed under section 186.22, subdivision (e).
Detective Bronte reported that, during a jail classification interview on May 17, 2012, defendant stated that he was a Northerner from RPL. According to the detective, a person is more likely to be honest during a jail classification interview because otherwise he could be housed with his enemies.
Detective Bronte indicated that gang members have guns to help commit gang crimes, to protect themselves against rival gang attacks, to intimidate fellow gang members, and to increase their stature and gain respect within the gang. According to the detective, when gang members use guns, they plan to kill, not merely to wound.
The detective explained that, since "fear is synonymous with respect" in the gang culture, the greater the fear that is generated by a gang member, the greater the respect. Disrespect requires retaliation. For example, "mad-dogging," a staring contest between rival gang members, can escalate to violence. Gang members gain respect by committing crimes, especially violent crimes or crimes against police officers. A gang member who is willing to commit a crime against a police officer sends a message to the rest of the world that he will attack anybody.
In Detective Bronte's opinion, the "NORTE" tattoo on the back of defendant's head advertised, "I am a Norte[ñ]o gang member, and I don't care who knows it." The detective explained that, when a gang member displays gang tattoos like those of defendant, he is a "walking billboard" for the gang and he is letting everyone know he is a gang member. By having such tattoos, he is opening himself to violence and probably will want to be armed. If a gang member has such tattoos and is unarmed in public, the risk to his safety is "very great." A Norteño gang member with a "Norte[ñ] o" tattoo on the back of his head is "skylining himself big time" and "inviting trouble."
According to Detective Bronte, defendant's prior contacts with police were significant in that they showed he had been an active gang participant even before he admitted he was "a Northerner from R.P.L." in May 2012. In the detective's opinion, defendant was a Norteño gang member. The bases for his opinion included police reports, defendant's previous criminal history, the detective's "conversations with other officers that [were] more familiar with [defendant]," defendant's tattoos, his clothing, and his associates. Detective Bronte agreed that, given his tattoos, defendant was "a well-labeled Norte[ñ]o." In the detective's opinion, defendant was an active member of the RPL gang, and this opinion was based on all the research the detective had done in this case. It was also his opinion that defendant's possession of a handgun as a convicted felon was consistent with his so doing for the benefit of, at the direction of, and in association with his gang.
When the prosecutor posed a hypothetical essentially based on the facts of this case and asked whether that scenario was consistent with a gang-related crime, Detective Bronte answered yes. In the detective's opinion, the gang member's possession of the gun in the hypothetical was "gang-related" and benefited his gang as well as the gang member. This opinion was based on the hypothetical individual's tattoos, his gang membership, and the uses and benefits of having a gun as a gang member, including its value for enhancing the gang member's power and influence within his own gang and as protection against rival gang members and retaliation.
II
Discussion
A. Challenges to the Gang Enhancement Term
1. Governing Law
Section 186.22, subdivision (b)(1), provides in pertinent part: "Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony" be " punished by an additional term of two, three, or four years at the court's discretion." (186.22, subdivision (b)(1)(A).) Section 186.22, subdivision (b)(5), provides: "Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
Section 186.22, subdivision (4), provides for "an indeterminate term of life imprisonment with a minimum term" of imprisonment where a defendant commits any of the specified offenses for the benefit of a gang. Being a felon in possession of a firearm is not one of those enumerated offenses.
For purposes of section 186.22, " '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 [enumerated] criminal acts . . . , having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f), italics added.) A " 'pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the [specified] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (§ 186.22, subd. (e).)
"A pattern of gang activity may be shown by the commission of one or more of the offenses enumerated in paragraphs (26) to (30), inclusive, of subdivision (e), and the commission of one or more of the offenses enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e). A pattern of gang activity cannot be established solely by proof of commission of offenses enumerated in paragraphs (26) to (30), inclusive, of subdivision (e), alone." (§ 186.22, subd. (j).)
In People v. Prunty (2015) 62 Cal.4th 59 (Prunty), the California Supreme Court determined that "the STEP Act [Street Terrorism Enforcement and Prevention Act] requires the prosecution to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang." (Id. at p. 67.) Consequently, "when the prosecution seeks to prove the street gang enhancement by showing a defendant committed a felony to benefit a given gang, but establishes the commission of the required predicate offenses with evidence of crimes committed by members of the gang's alleged subsets, it must prove a connection between the gang and the subsets." (Id. at pp. 67-68.)
"Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22[, subdivision] (f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22[, subdivision] (b)." (Prunty, supra, 62 Cal.4th at p. 72, fn. omitted.) It is not enough to show that "the group simply shares a common name, common identifying symbols, and a common enemy." (Id. at p. 72; see 75 ["use of common colors and symbols does not demonstrate the existence of a unified group"].) The prosecution may not "introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Id. at p. 72.)
"[W]here the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision (f),] turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets. That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization." (Prunty, supra, 62 Cal.4th at p. 71, fn. omitted.)
Prunty recognized that the facts of a particular case "may suggest the existence of behavior reflecting such a degree of collaboration, unity of purpose, and shared activity to support a fact finder's reasonable conclusion that a single organization, association, or group is present." (Prunty, supra, 62 Cal.4th at p. 78.) In such situations, it may be possible for "prosecutors to show that members of the various subsets collaborate to accomplish shared goals. For instance, the evidence may show that members of different subsets have 'work[ed] in concert to commit a crime,' [citation], or that members have strategized, formally or informally, to carry out their activities." (Id. at p.78, fn. omitted.)
"Evidence—even indirect evidence—showing collaboration among subset members, long-term relationships among members of different subsets, use of the same 'turf,' behavior demonstrating a shared identity with one another or with a larger organization, and similar proof will show that individual subsets are part of a larger group." (Prunty, supra, 62 Cal.4th at pp. 73-74.) "In general, evidence that shows subset members have communicated, worked together, or share a relationship (however formal or informal) will permit the jury to infer that the subsets should be treated as a single street gang." (Id. at pp. 78-79.)
2. Sufficiency of the Evidence
Defendant now asserts that the evidence was insufficient to prove that the crime, being a felon in possession of a firearm, was "committed for the benefit of, at the direction of, or in association with [the RPL] criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members" (§ 186.22, subd. (b)(1).) a. Standard of Review
"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.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
"There is rarely direct evidence that a crime was committed for the benefit of a gang." (People v. Miranda (2011) 192 Cal.App.4th 398, 411.) Likewise, "[d]irect evidence of the mental state of the accused is rarely available except through his or her testimony." (People v. Beeman (1984) 35 Cal.3d 547, 558.) "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. [Citations.]" (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) "The same standard [of review] governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) b. Proof that Offense Was Gang Related and Committed with Requisite Specific Intent
Defendant suggests that his unlawful possession of a firearm could not have been committed to benefit the RPL because "there was no evidence that any other RPL member had participated in and knew about [his] gun possession," there was "no evidence that anyone belonging to a rival gang of the RPL knew about the gun," and "[t]here was no evidence that any gang rivals lived [in] or frequented the building." The knowledge of others is not the determinative test of whether a crime is gang related within the meaning of subdivision (b) of section 186.22.
While "[n]ot every crime committed by gang members is related to a gang" (Albillar, supra, 51 Cal.4th at p. 60), it is also true that a "gang enhancement may be applied to a lone actor." (People v. Rios (2013) 222 Cal.App.4th 542, 564 (Rios).) An expert's testimony may assist a jury in determining whether a crime was committed for the benefit of criminal street gang with the requisite specific intent. (See People v. Vang (2011) 52 Cal.4th 1038, 1048; Albillar, supra, at p. 63.)
In arguing insufficiency of the evidence, defendant relies on People v. Franklin (2016) 248 Cal.App.4th 938 (Franklin). In that case, the appellate court found that an expert's testimony did not provide substantial evidence to support true findings as to the gang enhancements related to criminal threats and false imprisonment convictions. (Id. at p. 949.) In that case, the victim had dated defendant Franklin, who was a Jim Town gang member. (Id. at pp. 942-944.) The victim had "planned a trip to San Diego with friends to serve drinks at a bachelor party," but the defendant had not wanted her to go and had left life-threatening voicemail messages. (Id. at p. 942.) "Sometime before attending the party, [the victim] posted on social media that she was single . . . ." (Id. at pp. 942-943.) Defendant entered the victim's car after she agreed to meet him to retrieve her property. (Id. at p. 943.) Defendant used a metal pipe to strike her, switched seats with her, drove her around for several hours, and then took her to his home. (Ibid.) The defendant subsequently took the victim to a motel that was, according to the gang expert, "well outside of Jim Town gang territory" (ibid.), a "gang hangout" of the Pico Viejo gang (ibid.), and "a stronghold of the Pico Nuevo gang, a rival of the Pico Viejo gang." (Id. at p. 943 & fn. 6). In falsely imprisoning her, defendant had also had temporarily left the victim with several friends who were members of gangs other than Jim Town. (Id. at pp. 943-944, 950.)
In Franklin, the appellate court found that "[t]here was no evidence that any of appellant's fellow gang members were aware of the assault, much less participated in it" (Franklin, supra, 248 Cal.App.4th at p. 950) and that "there was no evidence whatsoever to demonstrate any associational or organizational connection among the [various gang subsets involved]." (Id. at pp. 950-951.) In contrast, in this case, the evidence did not show that the crime of conviction was committed in collaboration or cooperation with members of other gang subsets.
The expert in Franklin "stated that 'most crimes' committed by a gang member are committed for the benefit of the gang." (Franklin, supra, 248 Cal.App.4th at p. 946.) Among other things, the appellate court found that "nothing in the record supports the detective's casual dismissal of the possibility that appellant acted for his own benefit rather than for the benefit of his gang." (Id. at p. 950.) The gang expert in this case did not make such a generalization. Further, in this case, unlike in Franklin, there was no affirmative evidence that defendant committed the charged offense for a personal reason related to a dating relationship or for some other reason unrelated to a gang.
Although neither party cites Rios, a case decided by this court, we think it is important to distinguish it. In Rios, a jury convicted the defendant of three crimes, including carrying a loaded firearm in a vehicle and a violation of Vehicle Code section 10851, subdivision (a), and it found the gang enhancement allegations attached to those two particular crimes to be true. (Rios, supra, 222 Cal.App.4th at p. 545.) An officer saw defendant Rios driving a car, which was later determined to have been stolen, and pulled the vehicle over based on a cracked windshield. (Id. at pp. 547-548, ) Because the defendant, apparently the vehicle's sole occupant, did not have a driver's license, the officers decided to impound the car. (Ibid.) When conducting an inventory search of the car before having it towed, they found gang-related paraphernalia in the car and a loaded, unregistered gun wrapped in a T-shirt under the front passenger seat. (Id. at pp. 548-552.) "At booking, the intake officer asked defendant [Rios] if he belonged to a gang and defendant said that he was a Norteño." (Id. at p. 549.) There was also testimony that, upon jail intake, the "defendant stated that he was a 'Northerner associate.' " (Id. at p. 550.) The defendant was housed in "a dormitory for active Norteño gang members and their associates" without incident. (Ibid.) At trial, defendant Rios denied that he was a gang member but said that "he 'hangs out' with Norteños because he went to school with them." (Id. at p. 554.) The prosecution gang expert "opined that [the] defendant's 'Salas' tattoo was gang related, but that his other tattoos were not." (Id. at p. 551.)
In Rios, the "the prosecutor asked [the expert] hypothetical questions related to the specific intent prong of the gang enhancement (§ 186.22(b)(1))." (Rios, supra, 222 Cal.App.4th at p. 573.) "The only facts that the prosecution asked the expert to consider in the hypothetical were (1) the person was a gang member and (2) he possessed a gun." (Ibid.) The gang expert in Rios testified as to the value and uses of a gun, especially an unregistered gun that "cannot be traced back to the gang member." (Id. at p. 553.) It was his opinion that "a gang member with a firearm promotes, furthers and assists felonious conduct by other gang members." (Ibid.)
On appeal in Rios, this court held that "the expert testimony in response to the hypothetical in this case was insufficient to support an inference that defendant carried the gun in the vehicle with the specific intent required for the gang enhancement." (Rios, supra, 222 Cal.App.4th at p. 574.) We said that, "in a case such as this, where the defendant acts alone, the combination of the charged offense and gang membership alone is insufficient to support an inference on the specific intent prong of the gang enhancement" (id. at pp. 573-574.) because "[o]therwise, the gang enhancement would be used merely to punish gang membership." (Ibid.)
Unlike the very limited hypothetical in Rios (Rios, supra, 222 Cal.App.4th at p. 574), the hypothetical presented to Detective Bronte included more than the bare facts of gang membership and gun possession. It more fully tracked the evidence and included the hypothetical gang member's plethora of gang-related tattoos, including a "NORTE" tattoo on the back of his head.
In Rios, "there was no evidence that any victim in this case or anyone in the local community knew defendant was a gang member, was affiliated with a gang, or was acting with a gang purpose." (Rios, supra, 222 Cal.App.4th at p. 573.) In contrast, there was evidence in this case that, defendant was a "walking billboard" for his gang and that he was signaling the world, including rival gang members, that he was an active Norteño. In Detective Bronte's opinion, a person with tattoos like those of defendant was broadcasting that he was a Norteño gang member from San Jose and that his gang subset was RPL, he was inviting gang violence, and he would want to be armed. The detective's opinions were not shown to be based on mere speculation. (See People v. Richardson (2008) 43 Cal.4th 959, 1008 [" 'Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?' [Citation.]"].)
We also note that even incompetent evidence admitted without objection may be considered in determining the sufficiency of the evidence. (See People v. Panah (2005) 35 Cal.4th 395, 476 [" ' "[I]t is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding." ' [Citations.]"]; see also McDaniel v. Brown (2010) 558 U.S. 120, 131 (per curiam) [In evaluating the sufficiency of the evidence under Jackson v. Virginia (1979) 443 U.S. 307, " 'a reviewing court must consider all of the evidence admitted by the trial court,' regardless of whether that evidence was admitted erroneously [citation]."].)
Defendant contends there was no evidence that he was armed when he was arrested in the past and there was evidence that he was wearing "a shirt that covered his body tattoos" in this case. Defendant's citation to the record points to evidence that F.G. observed that defendant was wearing a sleeveless shirt. At trial, F.G. also recalled that defendant had tattoos. In any case, the jury was free to consider all the evidence in assessing the expert's credibility and the probative value of his opinions.
" 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (Zamudio, supra, 43 Cal.4th at p. 357.) c. Prunty
Defendant argues that the prosecution failed to present "sufficient evidence that all the perpetrators of the predicate offenses belonged to the RPL [subset] and that the predicate offenses were committed for the benefit of RPL gang members." He also contends that where the perpetrator of a predicate offense was member of gang subset other than RPL, the prosecution was required "to establish an organizational or associational connection between the RPL [subset] and that [other] gang subset."
The prosecution was not required to prove that each predicate offense was "committed for the benefit of, at the direction of, or in association with the gang." (People v. Gardeley (1996) 14 Cal.4th 605, 621 (Gardeley), italics omitted, disapproved on another ground in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) To qualify as a "criminal street gang" within the meaning of section 186.22, a group's members must "individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).) "Under the [STEP] act, 'pattern of criminal gang activity' means that gang members have, within a certain time frame, committed or attempted to commit 'two or more' of specified criminal offenses (so-called 'predicate offenses'). (Pen. Code, § 186.22, subd. (e).)" (Gardeley, supra, at p. 610, fn. omitted.)
Unlike Prunty, in this case the prosecution was not "positing the existence of a single 'criminal street gang' " (Prunty, supra, 62 Cal.4th at p. 71) that was an umbrella gang organization having gang subsets, namely the Norteños, and claiming that defendant sought to benefit that criminal street gang. At trial, the prosecution's theory was that defendant committed the charged offense for the benefit of RPL. The parties' stipulated that defendant was "a member [of] or associated with a criminal street gang, Roosevelt Park Locos." Consequently, it was unnecessary to prove a "pattern of criminal gang activity" to establish that RPL was a criminal street gang. (See CALCRIM No. 222 [jurors must accept stipulated facts as true]; Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 141-142 ["Unless the trial court, in its discretion, permits a party to withdraw from a stipulation [citations], it is conclusive upon the parties, and the truth of the facts contained therein cannot be contradicted. [Citations.]"].) The jury was instructed to accept stipulations as true facts.
Moreover, even assuming arguendo that the crimes committed by Campos and Perez did not qualify as predicate offenses, the prosecutor presented sufficient evidence of "a pattern of criminal gang activity" through proof of the "conviction of two or more" predicate offenses committed by members of RPL within the requisite time frame, namely, felony grand theft of a person committed by Corral on or about June 15, 2010, second degree burglary committed by Joel Joaquin Cortez on or about March 5, 2009, and two assaults with a deadly weapon committed by Richard Anthony Cortez on or about July 19, 2006. (See § 186.22, subds. (b)(1), (e), (f).)
The prosecution presented sufficient evidence to prove that the gang that the defendant sought to benefit and "the group that committed the predicate offenses" was "one and the same." (Prunty, supra, 62 Cal.4th at p. 81.) d. Conclusion
Viewing the evidence as a whole and in the light most favorable to the judgment, we find evidence sufficient to prove the gang enhancement allegation beyond a reasonable doubt. (See § 186.22, subd. (b).)
3. Sanchez and the Gang Enhancement Allegation
Defendant contends that that the gang expert related case-specific, testimonial hearsay to the jury in violation of his Sixth Amendment right of confrontation and state hearsay law. The People maintain that "Detective Bronte's statements related to [defendant] did not violate hearsay law or the Confrontation Clause," that "Sanchez does not require reversal of [defendant's] gang enhancement," and that any error is harmless. We find that reversal is required under Sanchez. a. Exclusion of Testimonial Hearsay Under Sanchez
The People assert that defendant forfeited those claims because he did not object to Detective Bronte's testimony on hearsay or confrontation grounds. We conclude that those claims were preserved for appeal because such objections would have been futile under the law existing at the time of trial. (See Gardeley, supra, 14 Cal.4th at pp. 618-619, ["[B]ecause Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter . . . upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]"]; People v. Montiel (1993) 5 Cal.4th 877, 918, disapproved in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13 ["On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them"].) "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237; see People v. Edwards (2013) 57 Cal.4th 658, 705; People v. Black (2007) 41 Cal.4th 799, 811.)
In Sanchez, the California Supreme Court laid down the following principles: "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. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted; see id. at p. 682.) The court defined "[c]ase-specific facts" as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.)
Under the forfeiture by wrongdoing rule, "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." (Davis v. Washington (2006) 547 U.S. 813, 833 (Davis).) At common law, "unconfronted testimony would not be admitted [under the rule] without a showing that the defendant intended to prevent a witness from testifying." (Giles v. California (2008) 554 U.S. 353, 361.) "[T]he requirement of intent [in the Federal Rule of Evidence codifying the rule] 'means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable.' [Citations.] (Id. at p. 367, fn. omitted.) Nothing in the record before us suggests that the forfeiture by wrongdoing rule applied in this case.
The court disapproved its "prior decisions concluding that an expert's basis testimony is not offered for its truth, or that a limiting instruction, coupled with a trial court's evaluation of the potential prejudicial impact of the evidence under Evidence Code section 352, sufficiently addresses hearsay and confrontation concerns. [Citations.]" (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) It also disapproved Gardeley "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules." (Ibid.)
In Sanchez, the Supreme Court made clear that its opinion did "not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field." (Sanchez, supra, 63 Cal.4th at p. 685.) The decision did not "affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise." (Ibid.) Under Sanchez, "[a]ny expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Ibid.) Of course, "evidence can be 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.)
Thus, "[g]ang experts, like all others, can rely on background information accepted in their field of expertise under the traditional latitude given by the Evidence Code. They can rely on information within their personal knowledge, and 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." (Sanchez, supra, 63 Cal.4th at p. 685.)
The Supreme Court in Sanchez recognized a distinction "between allowing an expert to describe the type or source of the matter relied upon" and "presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception." (Sanchez, supra, 63 Cal.4th at p. 686.) It stressed that what experts generally cannot do is "present, as facts, the content of testimonial hearsay statements" (id. at p. 685).
Where an expert's trial testimony revealed that police reports were "compiled during police investigation of . . . completed crimes" and at trial the expert "relied upon, and related as true, these case-specific facts from a narrative authored by an investigating officer," we may infer that the police reports, even if not admitted into evidence or made part of the appellate record, "relate[d] hearsay information gathered during an official investigation of a completed crime." (Sanchez, supra, 63 Cal.4th at p. 694.) b. Gang Membership
As in Sanchez, Detective Bronte, the prosecution's gang expert in this case, recited extrajudicial facts inferably gleaned from police reports of defendant's past arrests, a record of a jail classification interview, or perhaps statements made by other police officers to explain the factual basis for his opinion that defendant was an RPL gang member. (Cf. Sanchez, supra, 63 Cal.4th at p. 698.) "While gang membership is not an element of the gang enhancement [citation]" (ibid.), "evidence of defendant's membership . . . bolstered the prosecution's theory that he acted with intent to benefit his gang, an element it was required to prove." (Id. at pp. 698-699.)
Defendant has not shown that his self-identification as "a Northerner from RPL" for jail classification purposes was testimonial. (See Davis, supra, 547 U.S. at p. 822, fn. omitted. [Statements to police are "testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution"].) Such self-identification appears to come within the hearsay exception for a party's statements. (See Evid. Code, § 1220; see People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5.) Conceivably, an official jail record memorializing such self-identification may come within the official record exception to the hearsay rule (Evid. Code, § 1280). In any case, as we subsequently explain, any error in admitting basis evidence for the detective's opinion regarding defendant's gang membership was harmless beyond a reasonable doubt.
But, unlike Sanchez, at the time of the expert's testimony in this case, the parties had already stipulated to the fact that defendant was "a member [of] or associated with a criminal street gang, Roosevelt Park Locos." Accordingly, even if the detective was relating testimonial hearsay when he recounted case-specific facts to explain the basis of his opinion as to defendant's RPL gang affiliation, that testimony was harmless beyond a reasonable doubt as to the fact of his gang membership or association. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) c. Circumstances Surrounding Defendant's Prior Arrests
The People's claim that defendant's own admissions of gang affiliation in 2000 did not implicate the confrontation clause. The People overlook defendant's right to confront the officer who documented the defendant's purported statements if, as it appears, they were elicited during an interrogation whose "primary purpose" was "to establish or prove past events potentially relevant to later criminal prosecution." (Davis, supra, 547 U.S. at p. 822, fn. omitted.)
Detective Bronte had no previous personal contact with defendant before investigating the present case after defendant's arrest, and at trial he related information he had learned about four prior San Jose Police Department cases against defendant (specified by case number). His testimony disclosed that defendant committed certain crimes near Roosevelt Park, RPL's asserted territory, and that defendant also committed certain crimes while wearing the color red or other gang-related indicia, while sporting gang-related tattoos, or while admittedly a gang member. By showing defendant's longstanding affiliation with the RPL gang through those case details, the expert's testimony tended to bolster the prosecution's theory that, in possessing a firearm in the present case, defendant "acted with intent to benefit his gang" (Sanchez, supra, 63 Cal.4th at p. 699).
Detective Bronte indicated that he was familiar with police department cases from his review of defendant's record and "the research" that he "pull[ed] up." He learned of defendant's many tattoos from "the report" in one of the cases that he reviewed. The most reasonable inference from the record before us is that Detective Bronte was recounting testimonial hearsay from the police reports filed in those cases. "If offered for its truth, [a] report itself is a hearsay statement made by the person who wrote it. Statements of others, related by the report writer, are a second level of hearsay. Multiple hearsay may not be admitted unless there is an exception for each level. [Citation.]" (Sanchez, supra, 63 Cal.4th at p. 675.)
The People seem to suggest that the record fails to demonstrate Detective Bronte's testimony concerning defendant conveyed testimonial hearsay. They argue that "the detective conveyed no specific statements by any officers with whom he spoke" and that defendant did not "connect any discrete statements to specific testimonial hearsay sources other than claiming the expert relied on 'police reports.' " We are not persuaded that Detective Bronte was not conveying testimonial hearsay. The California Supreme Court has made clear that Crawford v. Washington (2004) 541 U.S. 36 cannot be circumvented by summarizing, rather than reciting verbatim, testimonial hearsay. (Sanchez, supra, 63 Cal.4th at p. 694 ["[T]estimonial statements do not become less so simply because an officer summarizes a verbatim statement or compiles the descriptions of multiple witnesses"].)
" 'Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.' ([Davis, supra, 547 U.S.] at p. 822, italics added.)" (Sanchez, supra, 63 Cal.4th at p. 688.) Or, stated differently, "[t]estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689, fn. omitted.)
We find nothing to suggest that the out-of-court statements memorialized in the police reports concerning defendant's prior arrests, upon which Detective Bronte impliedly relied in describing those crimes, may have been nontestimonial. As in Sanchez, it appears that Detective Bronte learned about defendant's prior arrests "solely through police reports," which were "compiled during police investigation" of the past incidents. (Sanchez, supra, 63 Cal.4th at p. 694.) And it appears that the detective "relied upon, and related as true, case-specific facts from a narrative authored by an investigating officer." (Ibid.)
In Sanchez, the Supreme Court stated: "When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency as in Davis and Bryant, or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at p. 694; see Michigan v. Bryant (2011) 562 U.S. 344, 348-349, 375-378 (Bryant) [the primary purpose of the statements of a mortally-wounded victim were nontestimonial because they enabled police to address the ongoing emergency of a shooter at large]; Davis, supra, 547 U.S. at pp. 817-818, 828-829 [initial portion of a 911 call in which the victim identified her assailant, who was reportedly in her house and jumping on her, was not testimonial].)
Aside from Detective Bronte's testimony concerning defendant's tattoos, we are unable to say that the testimonial hearsay conveyed by the detective concerning defendant's four prior arrests was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) The People have not "prove[d] beyond a reasonable doubt that the error complained of did not contribute to the [true finding] obtained." (Ibid.) Any error in admitting the detective's testimony about defendant's tattoos was harmless beyond a reasonable doubt, however, because the parties stipulated that defendant had the tattoos described by Detective Bronte during his testimony in this case. d. Predicate Offenses
Since any error in admitting testimonial evidence concerning defendant's past arrests was not harmless under Chapman, we do not reach defendant's argument that admission of that evidence also violated state hearsay law and was reversible error under People v. Watson (1956) 46 Cal.2d 818, 836.
Defendant argues that Detective Bronte recounted inadmissible testimonial hearsay to prove the predicate offenses showing the "pattern of criminal gang activity" element of the gang enhancement allegation (§ 186.22, subds. (b), (e), (f)). He contends that the detective's testimony as to the "factual circumstances of the predicate offenses was . . . based on police reports written by the officers who investigated the crimes." Defendant also asserts that the police reports, upon which the detective relied in forming his "opinion that the predicate offenses were committed for the RPL's benefit," "contained several layers of hearsay, such as Richard Cortez's statement to the investigating officer that he was a RPL member."
The People argue the details of the predicate offenses related by Detective Bronte were "completely superfluous" since certified court documents established the predicate offenses. Citing Evidence Code section 1280 (hearsay exception for a record made by public employee) and People v. Taulton (2005) 129 Cal.App.4th 1218, 1225, the People contend that court documents were nontestimonial and admissible under a hearsay exception. They also assert that it was not necessary to prove all the predicate offenses. They maintain that "[i]t is far from clear" whether the detective "relied upon testimonial hearsay" in testifying to the perpetrators' gang affiliations.
The People's assertion that the charged crime could have been a predicate offense is without merit in this case. The trial court instructed the jury that the predicate offenses could be "one or more" particular crimes, namely robbery (§ 211), grand theft of a person (§ 487, subd. (c)), assault as defined in section 245, or burglary (§ 459).
There is no dispute that the records of conviction were nontestimonial and admissible. Although the predicate offenses were prosecuted to conviction, their details and the perpetrators' gang affiliations were not part of the records of conviction that were introduced into evidence.
We find nothing in the appellate record to suggest the detective was conveying nontestimonial, out-of-court statements in testifying regarding circumstances of the predicate offenses and the perpetrators' gang affiliation. (Cf. Bryant, supra, 562 U.S. at pp. 349, 366, 377-378; Davis, supra, 547 U.S. at pp. 817-818, 827-828.) Rather, it appears that the detective, who had no personal knowledge of the predicate offenses, was reciting at least some testimonial hearsay when he testified to the gang membership of each perpetrator and when he described in some detail the predicate offenses committed by Campos, Perez, Corral, and Joel Cortez.
Detective Bronte did not describe the two assaults with a deadly weapon, a knife, committed by Richard Cortez.
Ordinarily, proof of predicate offenses showing a "pattern of criminal gang activity" is necessary to establish that a particular group is a "criminal street gang" as statutorily defined. (See § 186.22, subd. (b), (e), (f); see Prunty, supra, 62 Cal.4th at p. 67.) In this case, however, the parties stipulated that defendant was "a member or associated with a criminal street gang, Roosevelt Park Locos." (Italics added.) Thus, the testimonial hearsay regarding the predicate offenses was harmless beyond a reasonable doubt as to the issue whether RPL was a criminal street gang. (See Chapman, supra, 386 U.S. at p. 24.) But, even so, we cannot say that the error of admitting testimonial hearsay concerning details of the asserted predicate offenses and the gang affiliation of the perpetrators was harmless beyond a reasonable doubt. That testimony may well have enhanced the detective's credibility by showing that he had extensive, inside police information, which made it more likely that the jury would accept his opinions as true, including his opinions related to whether defendant possessed the gun for the benefit of a criminal street gang. e. Conclusion
The gang expert conveyed testimonial hearsay to the jury. The admission of that evidence in its entirety was not shown to be harmless beyond a reasonable doubt. Consequently, the true finding on the gang enhancement allegation (§ 186.22, subd. (b)(1)) must be reversed. B. Sentencing
1. Sentencing Under the Three Strikes Law
a. Background
After the charged offense was allegedly committed, the voters of California approved Proposition 36, entitled "Three Strikes Reform Act of 2012" (Reform Act). (Voter Information Guide, Gen. Elec. (Nov. 6, 2012), text of Prop. 36, § 1, p. 105.) The initiative measure went into effect on November 7, 2012, before defendant's trial commenced. (Id., § 10, p. 110; see People v. Conley (2016) 63 Cal.4th 646, 652 (Conley).)
On November 29, 2012, a jury found defendant guilty of "owning, purchasing, receiving and possession of a firearm by a felon" in violation of section 29800, subdivision (a)(1). It found the alleged gang enhancement (§ 186.22, subd. (b(1)(A)) to be true.
On November 30, 2012, in bifurcated proceedings, defendant admitted the three allegations under the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12), each alleging a prior conviction of an assault with a deadly weapon (§ 245, subd. (a)(1).) Defendant also admitted the two prior prison term allegations (§ 667.5, subd. (b)).
On October 9, 2015, the trial court sentenced defendant as a third strike offender to 25 years to life and to a two-year gang enhancement term (§ 186.22, subd. (b)(1)(A)). The court stayed one of the prior prison term enhancements (§ 667.5, subd. (b)) and struck the other under section 1385. b. Analysis
Defendant now asserts that, under the Reform Act, the court should have sentenced him as a second strike offender, rather than as a third strike offender, because he was convicted of a nonserious, nonviolent felony and the prosecution did not plead and prove the firearm exception to the more lenient sentencing under the act. He contends that after passage of the Reform Act, the prosecution had to amend the information to disqualify him from being sentenced as a second strike offender.
"[U]nder the original [Three Strikes] law, a defendant previously convicted of two qualifying strikes was subject to a life term if he was subsequently convicted of any new felony, regardless of whether it was a serious or violent one." (People v. Frierson (2017) 4 Cal.5th 225, 230 (Frierson).) After passage of the Reform Act, a defendant who is convicted of a nonserious, nonviolent felony is sentenced as a second strike offender, unless an exception applies. (See People v. Johnson (2015) 61 Cal.4th 674, 681.)
"After passage of the Reform Act, the prosecution bears an additional burden to secure imposition of a third strike sentence. If the current offense is not a serious or violent felony, the prosecution must plead and prove facts that demonstrate the defendant is not entitled to the ameliorative changes of the Act." (Frierson, supra, 4 Cal.5th at p. 233; see §§ 667, subd. (e)(2)(C); 1170.12, subd. (c)(2)(C).) "If the prosecution wishes to have a third strike sentence imposed [under the reformed Three Strikes law], it must indicate what circumstance makes a defendant subject to an indeterminate sentence and prove that circumstance beyond a reasonable doubt at trial." (Frierson, supra, at p. 238.) "One such exception is if, '[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.' [Citation.]" (People v. Estrada (2017) 3 Cal.5th 661, 667; see §§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii).)
The People contend that the trial court properly sentenced defendant as a third strike offender because the jury's true finding on the gang enhancement "elevated the firearm possession to a serious felony." We agree that since the gang enhancement allegation was found true, defendant was convicted of a serious offense and the trial court properly sentenced him to an indeterminate life sentence under the reformed Three Strikes law. (See §§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A), 1192.7, subd. (c)(28); People v. Briceno (2004) 34 Cal.4th 451, 456 (Briceno).) The statutory definition of "serious felony" includes "any felony offense, which would also constitute a felony violation of Section 186.22." (§ 1192.7, subd. (c)(28).) In another context, the Supreme Court explained that such "felony offense" includes "the substantive offense of active participation in a criminal street gang defined in section 186.22, subdivision (a)," (Briceno, supra, 34 Cal.4th at p. 456) and " '[a]ny felony offense' that was committed for the benefit of a criminal street gang within the meaning of section 186.22(b)(1)." (Ibid.)
In Briceno, which predated the passage of the Reform Act, the California Supreme Court stated: "[S]ection 186.22(b)(1)(A), (B), and (C) speaks to an event that occurs in the current proceeding. Section 1192.7, subdivision (c), on the other hand, comes into play only if the defendant reoffends, at which time any prior felony that is gang related is deemed a serious felony. Thus, any felony that is gang related is not treated as a serious felony in the current proceeding, giving effect to section 186.22(b)(1)(A). [Citation.]" (Briceno, supra, 34 Cal.4th at p. 465.) The court determined that, "while it is proper to define any felony committed for the benefit of a criminal street gang as a serious felony under section 1192.7(c)(28), it is improper to use the same gang-related conduct again to obtain an additional five-year sentence under section 186.22(b)(1)(B)." (Id. at p. 465.) Of course, Briceno did not consider the application of section 1192.7, subdivision (c)(28), in determining whether a current offense is a serious felony for purposes of the reformed Three Strikes law. (See §§ 667, subd. (c)(2)(C); 1170.12, subd. (c)(2)(C).)
Since we must reverse the true finding as to the gang enhancement allegation, however, defendant's sentence will ultimately depend upon whether that allegation is retried and again found true. Being a felon in possession of a firearm is not, in and of itself, a serious felony.
Insofar as the People seem to be arguing that the Reform Act does not apply to defendant's sentencing because his offense preceded its effective date, we reject the contention. In In re Estrada (1965) 63 Cal.2d 740, the California Supreme Court articulated the following rule: "When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date. [Citation.]" (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) In Conley, the California Supreme Court found that the general retroactivity rule of Estrada does not govern application of the Reform Act. (Conley, supra, 63 Cal.4th at pp. 656-661.) Instead, the court held that third strike defendants who were sentenced under the Three Strikes law before November 7, 2012 (the effective date of the Reform Act) but whose judgments were not yet final as of that date, are not entitled to automatic resentencing under the reformed Three Strikes law but "instead may seek resentencing by petitioning for recall of sentence under section 1170.126." (Conley, supra, at p. 652.)
In considering the Estrada rule in Conley, the Supreme Court observed that, "[b]y its terms, [section 1170.126] draws no distinction between persons serving final sentences and those serving nonfinal sentences, entitling both categories of prisoners to petition courts for recall of sentence under the Act." (Conley, supra, 63 Cal.4th at p. 657.) It concluded that "[i]n prescribing the scope and manner of the Act's retroactive application, the voters did not distinguish between final and nonfinal sentences, as Estrada would presume, but instead drew the relevant line between prisoners 'presently serving' indeterminate life terms—whether final or not—and defendants yet to be sentenced." (Id. at p. 658, italics added.)
Defendant fell into the latter "yet to be sentenced" category because he was tried, convicted, and sentenced after the Reform Act's effective date. Accordingly, the court was required to sentence defendant under the reformed Three Strikes law, but he was entitled to more lenient sentencing only if his current offense was a nonserious, nonviolent felony and no disqualifying factor was pleaded and proved. (§§ 667, subd. (e)(2)(C); 1170.12, subd. (c)(2)(C).)
The People confusingly argue that defendant's claim (that the prosecution was required to plead and prove the firearm exception) "necessarily fails" because "there is no pleading-and-proof requirement under section 1170.126." By its own terms, section 1170.126's resentencing provisions "apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under [the Reform Act] would not have been an indeterminate life sentence." (§ 1170.126, subd. (a).) Defendant was not serving an indeterminate term of imprisonment when the Reform Act, which added section 1170.126, went into effect and he was not resentenced under section 1170.126. Rather, the trial court sentenced him in the first instance. Thus, section 1170.126 did not govern whether the prosecution was required to plead and prove the firearm exception to obtain imposition of a third strike sentence. 2. Sentencing Under Subdivision (b) of Section 186 .22
Citing People v. Williams (2014) 227 Cal.App.4th 733, defendant contends that, if he was properly sentenced as a third strike offender, imposition of the two-year gang enhancement imposed under section 186.22, subdivision (b)(1)(A), was unauthorized because he was sentenced to an indeterminate life term. He maintains that the judgment must be modified by striking that sentence enhancement and instead imposing the 15-year minimum term for parole eligibility pursuant to section 186.22, subdivision (b)(5). "Section 186.22, subdivision (b)(5) is an alternate penalty provision that applies to any gang-related underlying felony 'punishable by imprisonment in the state prison for life.' (See [People v. Montes (2003)] 31 Cal.4th 350.)" (Briceno, supra, 34 Cal.4th at p. 465, fn. 7.)
The People concede this point. We find it unnecessary to resolve the issue since the true finding on the gang enhancement allegation must be reversed.
DISPOSITION
The judgment is reversed as to the true finding on the gang enhancement allegation (§ 186.22, subd. (b)(1)(A)). The matter is remanded to the trial court for possible retrial of the allegation, at the prosecution's election, and for further proceedings not inconsistent with this opinion.
/s/_________
ELIA, Acting P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.