From Casetext: Smarter Legal Research

People v. Garcia

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 4, 2018
No. F072596 (Cal. Ct. App. Jan. 4, 2018)

Opinion

F072596

01-04-2018

THE PEOPLE, Plaintiff and Respondent, v. DANIEL A. GARCIA, Defendant and Appellant.

Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Catherine Tennant Nieto and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF150986A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Catherine Tennant Nieto and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

What began as a petty theft of beer from a 7-Eleven store in Bakersfield escalated into an armed robbery followed by a shooting at an occupied patrol car. Defendant Daniel Garcia was arrested for the crimes shortly afterward and convicted by jury of the following six offenses: attempted murder of Officer Brady Barber (Pen. Code, §§ 664/187, subd. (a)) (count 1), assault with a firearm upon a peace officer (§ 245, subd. (d)(1)) (count 2), shooting at an occupied motor vehicle (§ 246) (count 3), robbery (§ 212.5, subd. (c)) (count 4), active participation in a criminal street gang (§ 186.22, subd. (a)) (count 5), and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 6). The jury found true the special allegations that the attempted murder of Barber was willful, deliberate and premeditated (§ 189) and that the victim was a known peace officer (§ 664, subd. (e)(1)). The jury also found true the gang enhancement attached to counts 1 through 4 (§ 186.22, subd. (b)(1)), and the firearm enhancements attached to counts 1 through 5 (§§ 12022.53, subd. (b)-(c), 12022.5, subd. (a)). In a bifurcated proceeding, the trial court found true that defendant, one, suffered a prior serious felony conviction within the meaning of both section 667, subdivision (a)(1), and the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and, two, served four prior prison terms (§ 667.5, subd. (b)).

All further statutory references are to the Penal Code unless otherwise specified.

Effective June 27, 2017, section 29800 was amended to extend application of subdivision (a)(1) to persons with an outstanding felony warrant. (Legis. Counsel's Dig., Assem. Bill No. 103, approved by Governor, June 27, 2017 (2017-2018 Reg. Sess.) § 44.)

Although the parties did not raise the issue, the court is aware of the amendment to section 12022.53, subdivision (b)-(c), and section 12022.5, subdivision (a), effective January 1, 2018, which permit the trial court, in the interest of justice, to strike or dismiss an enhancement otherwise required to be imposed under the statute. (Sen. Bill No. 620, approved by Governor, October 11, 2017 (2017-2018 Reg. Sess.) §§ 1, 2.) In light of our reversal of the substantive gang offense and gang enhancements discussed herein, defendant must be resentenced. The parties may raise any issues relating to the amended firearm enhancement statutes at that time.

The trial court sentenced defendant to an indeterminate term of 68 years to life for shooting at an occupied vehicle (count 3) and a consecutive determinate term of 37 years for robbery (count 4). Sentences on the remaining four counts were stayed pursuant to section 654.

On appeal, defendant claims his convictions for attempted murder and active participation in a criminal street gang (substantive gang offense) are unsupported by substantial evidence, and the jury's findings as to the penalty enhancement for willful, deliberate and premediated attempted murder and the gang enhancement attached to counts 1 through 4 are unsupported by substantial evidence. He also argues the trial court erred in ruling Liodam Gonzalez's statements were admissible under the hearsay exceptions for spontaneous and contemporaneous statements. (Evid. Code, §§ 1240, 1241.) Finally, via supplemental briefing, defendant argues that under the California Supreme Court's recent decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), he is entitled to reversal of the substantive gang offense and the gang enhancements because the gang expert related case-specific facts drawn from hearsay evidence, some of which is also testimonial under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

The People dispute defendant's entitlement to any relief on appeal. They contend his convictions are supported by substantial evidence, Gonzalez's statements are not hearsay, but were in any event admissible under exceptions to the hearsay rule, and to the extent the gang expert's testimony relied on hearsay inadmissible under Sanchez, the error was harmless.

We conclude defendant's substantial evidence challenges and his hearsay challenge to Gonzalez's statements lack merit. We agree with defendant, however, that much of the gang expert's testimony relied on hearsay now inadmissible under Sanchez and the error was prejudicial, entitling defendant to reversal of the substantive gang offense and the gang enhancements attached to counts 1 through 4. The judgment is otherwise affirmed.

FACTUAL SUMMARY

A. Prosecution Case

On the night of September 30, 2013, defendant contacted his friend, Elena Rodriguez, and requested a ride to his uncle's house. Rodriguez agreed and went to pick him up. She was accompanied by her friend, Marissa Valles. Defendant asked Rodriguez if his friend, Liodam Gonzalez, could also come along. Rodriguez did not know Gonzalez well, but she agreed; Valles did not know Gonzalez at all. Defendant rode in the front passenger seat, Valles sat behind him and Gonzalez sat behind Rodriguez. Defendant had a loaded revolver with him and a black backpack containing five live bullets and one spent shell casing.

Defendant had been drinking Four Lokos beer when Rodriguez picked him up and he asked her to stop at 7-Eleven on the way to his uncle's house because he wanted more beer. Rodriguez drove to the 7-Eleven at the southwest corner of Stockdale and Real in Bakersfield and parked by the front door. Defendant and Gonzalez went inside while Rodriguez and Valles waited in the car.

Defendant was wearing a blue Washington Nationals baseball hat with a "W" on it and a blue shirt with a circular white logo that included the words "west side" on top, "original" on bottom and "bow down" in the middle. Gonzalez was also wearing a blue Washington Nationals hat with a "W" on it.

As discussed, post, the West Side Bakers (WSB), a gang in Bakersfield, has adopted Washington Nationals baseball team gear as a way of "broadcast[ing]" WSB membership.

Employee Esperanza Carrillo was stocking the beverage cooler when she saw defendant put some beer cans in his pants. Defendant was a regular customer at the store, as was Gonzalez, and Carrillo testified he seemed "[d]ifferent" that night. On prior occasions, he was "a proper guy," and was very nice, well behaved and well dressed. Carrillo exited the cooler and told defendant to put the beer down and leave. Defendant began to walk toward the exit. Carrillo followed and warned him she was going to call the police. Defendant told her she "was not going to call anyone" and he pulled a gun and pointed it at her. Defendant threatened to kill Carrillo and she then retreated.

Meanwhile, Gonzalez had exited the store and reentered the car. Rodriguez testified Gonzalez told her to leave and she looked up to see defendant walking toward the front door. She then saw defendant and Carrillo pushing each other. Defendant had a can of Four Lokos beer in his hand, and he pulled out a gun and put it in Carrillo's face. Rodriguez had not known he had a gun on him. She testified that she started to cry and Gonzalez told her to leave in a raised voice that sounded angry.

Valles testified that she was yelling at Rodriguez to go because defendant had a gun, while Gonzalez was yelling to "wait for Danny." Valles described Rodriguez as "kind of stuck" and "froze[n]." Rodriguez testified she was panicking. She pulled out of the parking lot onto the street, but pulled over because she saw the police arriving. Defendant exited 7-Eleven and headed toward Rodriguez's car. Rodriguez and Valles then saw him shooting in the direction of the police car that was behind them. Gonzalez told Rodriguez and Valles not to give his name and to "plea the 5th."

By coincidence, Bakersfield Police Officers Barber and Andrew Ferguson were approaching the intersection of Stockdale and Real in separate patrol cars as the robbery was unfolding. They were heading southbound on Real when Rodriguez's car rolled out of the 7-Eleven parking lot onto southbound Real without stopping and then pulled over. This caught Barber's attention and he pulled up behind the car. As Barber activated his hazard lights, he saw defendant exit 7-Eleven and quickly walk toward Rodriguez's car. Barber testified defendant opened the passenger door to get in and saw him. Defendant then extended his right hand. Barber saw a muzzle flash and ducked behind the firewall of his dashboard. He testified defendant fired at him from along the curb approximately five feet away from the rear passenger door of Rodriguez's car and 15 feet away from his patrol car. Barber heard four to six gunshots and, after the final shot, he peered over the dashboard and saw that defendant was gone. Barber then drew his gun, but did not fire. His patrol car sustained five bullet strikes to the passenger side quarter panel, front passenger tire rim, passenger side headlight, front bumper and front license plate.

Ferguson, who was following behind Barber, testified he saw Rodriguez's car pull in front of Barber's car on southbound Real and then pull over. He also saw defendant running out of 7-Eleven and toward Rodriguez's car. As Ferguson was crossing the intersection, he saw Barber shine a spotlight on the vehicle and defendant, who then fired at Barber using Rodriguez's car "as a shooting platform." Ferguson testified he pulled his patrol car up behind Barber's car before defendant finished shooting. Ferguson returned fire with his service weapon and fired five shots. He testified the two of them were actively shooting at the same time, but defendant never shot at him or anyone else other than Barber. Investigators later located four bullet strikes consistent with Ferguson's account.

After defendant fired his final shot at Barber, he fled southbound. He was located shortly thereafter wearing a tank top and identified as the suspect by numerous eyewitnesses. Officers recovered a Ruger .357 magnum revolver containing five spent shell casings, two cold cans of Four Lokos beer, and the shirt and hat defendant had been wearing in 7-Eleven. Defendant's DNA profile matched the profile of the DNA recovered from the gun and the baseball hat.

B. Defense Case

Defendant's sister, Rachel Onsum, and Detective Matt Gregory were called to testify for the defense. Onsum testified she had never heard of the WSB, defendant was not a gang member and he had long been a fan of the Washington Nationals. Gregory played the role of defendant during an investigatory reenactment of the shooting, and defendant questioned him regarding lighting conditions, weapons and details of the reenactment, including position during the shooting and bullet paths.

DISCUSSION

I. Sufficiency of the Evidence Supporting Attempted Murder Conviction

A. Standard of Review

On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055, cert. den. (2016) .) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) "In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, at pp. 1055-1056.) "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." (Zamudio, supra, at p. 357.)

B. Elements

Attempted murder requires specific intent to kill, or express malice, "'and the commission of a direct but ineffectual act toward accomplishing the intended killing.'" (People v. Smith (2005) 37 Cal.4th 733, 739.) Express malice is shown when the defendant "'either desires the victim's death, or knows to a substantial certainty that the victim's death will occur.'" (People v. Houston (2012) 54 Cal.4th 1186, 1217.) "[E]vidence of motive is often probative of intent to kill," but it "is not required to establish intent to kill." (People v. Smith, supra, at p. 741.) Intent "may in many cases be inferred from the defendant's acts and the circumstances of the crime." (Ibid.)

Unlike murder, "attempted murder is not divided into degrees, but the sentence can be enhanced if the attempt to kill was committed with premeditation and deliberation." (People v. Gonzalez (2012) 54 Cal.4th 643, 654.) More than a specific intent to kill is required to support a finding of deliberation and premeditation. (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) "'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance." (Ibid.) "'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly...." [Citations.]'" (Ibid.)

"In People v. Anderson (1968) 70 Cal.2d 15, 26-27 [(Anderson)], [the Supreme Court] reviewed earlier decisions and developed guidelines to aid reviewing courts in assessing the sufficiency of evidence to sustain findings of premeditation and deliberation. [Citation.] [The court] described three categories of evidence recurring in those cases: planning, motive, and manner of killing." (People v. Halvorsen (2007) 42 Cal.4th 379, 419-420.) "[H]owever, '[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate.'" (People v. Koontz, supra, 27 Cal.4th at p. 1081; accord, People v. Casares (2016) 62 Cal.4th 808, 824.) The "guidelines are descriptive and neither normative nor exhaustive, and ... reviewing courts need not accord them any particular weight." (People v. Halvorsen, supra, at p. 420; accord, People v. Casares, supra, at p. 824.).)

C. Analysis

Defendant argues the evidence does not support his conviction for attempted murder or, alternatively, the penalty enhancement for willful, deliberate and premeditated attempted murder. He contends he used a handgun rather than a long gun and he was merely attempting to disable the police car to avoid pursuit rather than kill Barber. The People respond that defendant was armed with a loaded gun, had additional ammunition in his backpack and threatened to kill the store clerk, which both suggested he planned to kill anyone who got in his way and evidenced planning. He also opened the car door, raised his arm and fired five shots at Barber rather than fleeing, evidencing a manner of attempted killing that supports the jury's finding of deliberation and premeditation.

We find no merit to defendant's contentions. He armed himself that night with a loaded gun and brought it with him inside 7-Eleven. After pointing the gun in the store clerk's face and threatening to kill her, defendant exited the store and hurried toward Rodriguez's car, which was stopped on the street with Barber's patrol car parked behind it. Defendant went up to Rodriguez's car and instead of fleeing in a different direction had escape been the immediate goal, he aimed his revolver at Barber's patrol car with Barber inside and fired five shots. Ferguson testified defendant was using the roof of Rodriguez's car as a shooting platform and all five shots hit the front patrol car while Barber took cover behind the dashboard. While there was some conflicting testimony regarding how far away defendant was from Rodriguez's car when he fired, the jury was entitled to accept Ferguson's version of events regarding use of the car as a shooting platform, and the witnesses were consistent in their testimony that defendant headed toward Rodriguez's car and then shot at Barber's patrol car. After defendant emptied his gun at the patrol car, he then fled.

Defendant's contention that he fired a handgun rather than a rifle is of no assistance to him. He cites no authority for the implied proposition that his gun choice is relevant under the circumstances of this case and somehow mitigates intent. To the contrary, his revolver was no less potentially lethal to Barber because it was a handgun as opposed to a rifle. (People v. Perez (2010) 50 Cal.4th 222, 230 (Perez); People v. Lashley (1991) 1 Cal.App.4th 938, 945.)

This evidence is clearly sufficient to support the jury's finding that defendant intended to kill Barber by shooting at the patrol car in which Barber was sitting. (See People v. Nelson (2011) 51 Cal.4th 198, 213 [aiming gun at victim while sitting on vehicle's passenger side window frame and bracing arms on roof sufficient evidence of intent to kill, even though the defendant shifted his shooting target and did not fire at the victim]; Perez, supra, 50 Cal.4th at p. 230 ["'"[t]he act of firing toward a victim at a close, but not point blank, range 'in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill ....' [Citation.]"'"].) It is likewise sufficient to support the enhancement finding that the shooting was willful, deliberate and premeditated. (People v. Nelson, supra, at p. 213; Perez, supra, at p. 230.)

The Anderson factors "'are not a sine qua non ... nor are they exclusive'" (People v. Koontz, supra, 27 Cal.4th at p. 1081) but, in this case, evidence of all three is present and we do not agree with defendant's assessment of the factors as weak. Again, defendant armed himself with a loaded gun that evening, threatened to kill the store clerk who attempted to stop his theft of beer and, instead of fleeing once he saw the police, he aimed and fired, unprovoked. These actions suffice to evidence planning. (People v. Marks (2003) 31 Cal.4th 197, 230-232; People v. Miranda (1987) 44 Cal.3d 57, 86-87, disapproved on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) As for motive, the gang expert testified that gangs consider any interference with their activities or exertion of authority over them, including by nongang members and the police, disrespectful and they respond to disrespect with violence. Evidence of motive is not a requirement nor need it be rational (People v. Whisenhunt (2008) 44 Cal.4th 174, 202; People v. Jackson (1989) 49 Cal.3d 1170, 1200); but, in this case, the gang expert's testimony supplied a sufficient basis for the jury to infer motive.

Finally, defendant shot at Barber from a short distance away. In the best scenario for defendant, he was approximately 15 away from the front of Rodriguez's car when he shot at Barber, but only one witness placed him that far away and she arguably had the worst vantage point from the back seat of Rodriguez's car. Barber placed defendant closer at approximately 15 feet away from his patrol car. Regardless, while the shooting did not occur at point blank range, it nevertheless occurred at close range and in a controlled manner. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295; Perez, supra, 50 Cal.4th at p. 230; People v. Thompson (2010) 49 Cal.4th 79, 114-115.)

For these reasons, we reject defendant's insufficiency of the evidence claim as to his conviction for willful, deliberate and premeditated attempted murder.

II. Substantive Gang Offense and Gang Enhancements

A. The STEP Act

"In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (the STEP Act). (§ 186.20 et seq.)" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) "'Underlying the STEP Act was the Legislature's recognition that "California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (Pen. Code, § 186.21.) The act's express purpose was "to seek the eradication of criminal activity by street gangs." [Citation.]' [Citation.] In pursuit of this goal, the STEP Act focuses upon 'patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.' (§ 186.21.)" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1129, fn. omitted (Rodriguez).)

In addressing the problem, the STEP Act creates both a substantive offense for active participation in a criminal street gang and a sentence enhancement for committing gang related crimes. (Rodriguez, supra, 55 Cal.4th at p. 1130.) In this case, defendant challenges both his conviction on the substantive gang offense and the jury's true findings on the gang enhancement. We begin with a summary of the gang evidence presented.

B. Gang Evidence

1. Detective Littlefield's Testimony

Detective Eric Littlefield testified that in June 2011, he was an investigator assigned to the Bakersfield Police Department's gang unit. On June 20, 2011, he made "contact" with a vehicle driven by Ricardo Garcia. Ricardo Garcia had a large "805" tattoo on his chest and a large "BKS" tattoo on his abdomen. Defendant was in the front passenger seat wearing a baseball cap with the letter "W" on it. Defendant denied gang membership, but told Littlefield he grew up in the Oleander area of Bakersfield and "backs the south." Littlefield testified that gang members look down on taggers and, in an attempt to elicit a further response, Littlefield commented he heard the WSB were taggers and not real gang members. Defendant appeared offended, glared and responded "that's not right."

2. Officer Malley's Testimony

Bakersfield Police Officer Michael Malley testified as the prosecution's gang expert. He explained to the jury that he determines whether someone is an active criminal street gang member based on a totality of the circumstances. Among the factors he considers are direct or indirect admissions, tattoos, identification as such by other gang members, gang paraphernalia, criminal history, and the subject's associates. He also reviews and summarizes gang packets, which he described as "a collection of police documentation ... [, including] field interview cards, street checks [and] police reports."

a. Background Information

Malley testified that the WSB gang is a Bakersfield subset of the Sureño gang and Sureños in turn function as foot soldiers for the Mexican Mafia prison gang. The color blue, traditionally royal or navy but also turquoise, is associated with WSB, and one of the gang's finger signs is a "W." The gang's traditional territory is bounded by Truxtun Avenue on the north, Brundage Lane on the south, Union Avenue on the east and Highway 99 on the west. The Oleander area defendant told Littlefield he grew up in is located in the middle of traditional WSB territory.

Rivals of WSB are the Norteños, West Side Norteños, Bloods and East Side Bakers (ESB). Malley explained that Sureño subsets get along in prison, but may or may not get along outside of prison. With subsets that do not traditionally feud, such as WSB and Arvina 13, it is common to see subset members get along with one another. In contrast, WSB and ESB are traditionally rivals on the streets, even though both are Sureño subsets.

Malley testified it is common for gang members to commit crimes together because they trust one another not to provide information to the police, and committing crimes to further the gang, or at the direction of the gang, is known as "putting in work for the gang." He also testified that WSB members engage in ongoing patterns of criminal activity, a fact generally known to its members, and the primary criminal activities of WSB are possession of illegal firearms, assault with a deadly weapon, burglary, robbery, sale of illegal narcotics, possession of narcotics for sale, witness intimidation, criminal threats and vandalism.

Malley discussed the role of respect and disrespect in gang culture. Respect is valued and linked to higher status while disrespect is a source of tension and linked to lack of status. Malley explained that the use of violence is the number one way to earn respect, and the greater the violence, the greater the respect on the streets and the status earned within the gang. Eventually, increased respect and higher status allow a gang member to move up the ranks to shot caller or to facilitate or run the gang's activities. Respect is earned by "backing up" other gang members when they commit crimes or after they commit crimes; any assistance provided by other gang members earns respect. Malley also testified that the role of respect and disrespect in gang culture extends to interactions with citizens and police officers, and if a citizen or an officer gets in the way of a gang member or attempts to assert authority over him or her, the gang views that interference as disrespectful. Gangs meet perceived disrespect, including from a citizen or the police, with violence.

b. Predicate Offenses

Malley testified to the following predicate offenses, in support of the gang's "'pattern of criminal gang activity.'" (§ 186.22, subd. (e).) On August 17, 2013, Mayco Roman shot two people in WSB territory. Just before shots were fired, one of the suspects yelled, "West Side." Malley investigated the case and arrested Roman. He testified Roman has a Washington Nationals "W" logo tattooed on his neck and during arrest he admitted he is a member of WSB. At the time of his arrest, Roman was in the company of WSB members Tony Duval, Edwin Roman and Victor Alarcon. Roman pled no contest to assault with a firearm and received a prison sentence. Malley opined that Roman was an active WSB member at the time of the offense.

The STEP ACT provides: "As used in this chapter, '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 following 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).) The statute then enumerates 33 qualifying offenses. (Ibid.)

On September 12, 2013, WSB members Tony Duval, Edwin Roman and Victor Alarcon confronted the victim of the August 17, 2013, shooting and a second person who assisted the police in that investigation. Duval chased the victim into a bank and then "smashed" one of the victim's crutches against the window of the other person's vehicle in the parking lot. Duval pled no contest to witness intimidation and received a jail sentence. Malley personally investigated the crime and opined that Duval was an active WSB member at the time of the offense.

Based on police reports, conversations with investigating officers and reviewing the conviction, Malley testified that on April 24, 2013, officers conducted a probation search of Liodam Gonzalez's bedroom. The search yielded an illegal shotgun, WSB gang graffiti on a mirror and two Washington Nationals baseball caps with the letter "W" on them. Daniel Alvarez and Richard Hidalgo were present. They admitted to being members of the Arvina 13 gang, another Sureño subset, and they identified Gonzalez as a WSB member. Gonzalez pled no contest to possession of a short-barreled shotgun and received a jail sentence. Malley opined that Gonzalez was an active WSB member at the time of the offense.

Also based on police reports, conversations with investigating officers and reviewing the conviction, Malley testified that on October 18, 2010, Sergeant West saw WSB members Manuel Vasquez, Eliverto Vela and Michael Munguia loitering. Vela discarded a firearm under a parked car. Vasquez retrieved the firearm and was in possession of it when officers stopped the group. Vela pled no contest to carrying a loaded, unregistered firearm and Vasquez pled no contest to being a felon in possession of a firearm. Vela and Vasquez both received prison sentences and Malley opined they were active WSB members at the time of the offenses.

Finally, again based on police reports, conversations with investigating officers and reviewing the conviction, Malley testified that on March 25, 2009, WSB member Willie Galloway fired a shotgun into the occupied residence of rival gang member Rudy Delgado. A sheriff's deputy saw Galloway flee the scene with a sweatshirt in his arms. When Galloway was located, he no longer had the sweatshirt, but it was found nearby with a spent shell casing in it. Galloway stated he was returning fire after being shot at and he had the gun for protection because WSB member Rolando Ambriz had been shot at in that neighborhood. Galloway pled no contest to discharging a firearm at an occupied residence and was sentenced to prison. Malley opined Galloway was an active WSB member at the time of the offense.

c. Gonzalez's Gang Membership

Malley testified Gonzalez is an active WSB member and he based his opinion on the offense report from the probation search incident on April 24, 2013, the offense report relating to the crimes in this case and the offense report from an incident on July 3, 2012. With respect to the July incident, Malley testified Gonzalez was a passenger in a vehicle driven by WSB member Roberto Benitez. Benitez told officers he was on community supervision and Gonzalez told them he had a handgun, which officers located when they searched him. Malley testified the report was significant because it showed Gonzalez was associating with a WSB member and he was in possession of a loaded firearm, as he was on April 24, 2013.

Regarding the crimes charged in this case, Malley testified it was significant that two WSB members were together when the beer theft was committed and both were wearing gang attire. Malley also testified it was significant that after telling Rodriguez to leave when the robbery was underway, Gonzalez then told her to wait for defendant, and he subsequently told Rodriguez and Valles not to provide information and to plead the Fifth Amendment. Malley opined that Gonzalez's actions demonstrated he was aware defendant was committing a crime, and he was aiding defendant by telling Rodriguez to wait and telling both witnesses not to provide information to police.

d. Defendant's Gang Membership

Malley testified that at the time of the underlying offenses in this case, defendant was an active WSB member. He based his opinion on eight incidents documented as street checks or in police reports. He testified that in January 2007, defendant was contacted during a street check that occurred in traditional WSB territory while he was in the company of South Side Baker member Frankie Feliz. Malley testified that the South Side Bakers are also a subset of the Sureño gang and it was significant to him that defendant was hanging out with another Sureño subset member.

As documented in a 2001 report, an officer approached defendant at a hotel in WSB territory and defendant tossed a sawed off shotgun into the bushes. A February 2004 report documented a contact with defendant while he was in the company of Pedro Alvarez, a Loma Baker. Malley testified the Loma Baker gang is another Sureño subset.

In another report from June 2004, defendant was with others in an apartment one block outside of WSB territory. Officers located a loaded revolver, extra ammunition and speed loaders in a nearby vehicle, and they located a pistol and a sawed off shotgun in the apartment. They also found WSB graffiti in and around the apartment, and photographs of individuals displaying WSB and Arvina 13 gang signs.

As documented in a 2007 offense report, defendant and two WSB members were located at a park within WSB territory. Defendant and one of the other two individuals had wet paint on their hands. There was gang graffiti in the form of "WS" on the amphitheater steps and some crossed-out monikers on the amphitheater. Malley explained a moniker is a gang nickname and crossing out a moniker is a sign of disrespect, a public challenge and an assertion of dominance over territory.

Per another offense report from October 2008, defendant and WSB member Luis Santiago were in a vehicle that left an area where an officer heard gunshots. During the course of the ensuing high-speed pursuit, two loaded firearms were tossed from the vehicle. The firearms were located, and bullet strikes and shell casings were found at the scene of the shooting. Santiago had "WS" tattooed on his right middle finger and three dots tattooed on the web of his hand. Malley explained that the "WS" stands for West Side and three dots are a common Sureño tattoo meaning "my crazy life" and signifying the 13th letter of the alphabet, which is "M" and relates to the Mexican Mafia. Defendant was wearing a belt with a large "W" on the buckle and a necklace with a large "W" medallion. A blue Washington Nationals hat with a white "W" on it was found in the car.

Regarding the June 2011 offense report involving Detective Littlefield, Malley testified it was significant that defendant was wearing gang attire in the form of a Washington Nationals baseball hat while in traditional WSB territory. In addition, even though defendant denied gang membership, he reacted negatively to Littlefield's comment regarding taggers, indicating he felt disrespected by the comment. Malley explained that calling gang members taggers is derogatory because taggers are merely kids committing vandalism.

Finally, Malley considered the offense report underlying defendant's crimes in this case. Malley testified that although alone it would not be enough for him to form an opinion on whether someone is or is not a gang member, defendant has a generic Sureño "805" tattoo on his chest. The old area code for Bakersfield is 805 and, given the additional information available, Malley opined that the tattoo signals defendant is an "OG" or "original gangster," which is a more senior member of the gang who commands status or respect. Defendant's backpack was also found in Rodriguez's car with a large "W" and the word "dub" written on the bottom, with the letter "W" symbolizing WSB. Finally, Malley testified that the hat and shirt worn by defendant during the robbery constituted "a gang uniform."

e. Hypothetical

Based on a hypothetical mirroring the facts underlying defendant's crimes, Malley testified that the offenses were committed in association with the gang because they involved two active gang members wearing gang attire. They entered a location one member frequented and the other member, while not directly involved, attempted to assist in the crime by securing the direct perpetrator's safe passage from the area. Malley testified the two were openly working together and backing each other up, as expected, in association with WSB.

During closing argument, the prosecutor focused on the robbery as satisfying the "felonious criminal conduct" element of the substantive gang offense.

Malley testified the open possession of a firearm and escalation of a theft into a robbery and then into a shooting benefits WSB in several ways. It causes fear and intimidates the public, which then discourages the public's cooperation with the police. In addition, the gang views the public's fear as respectful and that increase in respect bolsters the reputation of the gang as a whole. Of further benefit, the perpetrator went "above and beyond" for the gang by escalating a petty theft, which could easily have gone unnoticed, into a robbery and then "squashed" the clerk's "disrespect[ful]" act of interference. Malley testified that it would have been perceived as weak to do otherwise.

Malley also testified that a majority of gangs view the police as rival gang members and view the contacts, arrests and searches police conduct as disrespectful. This results in a greater inclination toward acting out against the police. Malley testified this is especially true for someone wearing obvious gang attire who is in the company of another gang member. That person has to show his status or demand respect on the street, and to back down to another gang member, a citizen or a police officer would be perceived as weak.

C. Substantive Gang Offense Claims

1. Elements

The substantive gang offense applies to "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang ...." (§ 186.22, subd. (a).) It is not a crime to be a gang member, however (Rodriguez, supra, 55 Cal.4th at pp. 1130-1131), and "[n]ot every crime committed by gang members is related to a gang" (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar)). Rather, the substantive gang offense targets "gang members who act[] in concert with other gang members in committing a felony regardless of whether such felony [is] gang related." (Rodriguez, supra, at p. 1138.) The offense requires the commission of felonious criminal conduct by at least two members of the criminal street gang. (Id. at p. 1132; accord, People v. Johnson (2014) 229 Cal.App.4th 910, 920-921.)

The substantive gang offense has three elements: "[f]irst, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (Rodriguez, supra, 55 Cal.4th at p. 1130; accord, People v. Lamas (2007) 42 Cal.4th 516, 524.) Defendant attacks the second element of the offense—knowledge that WSB members engage or engaged in a pattern of criminal activity—as unsupported by substantial evidence. In supplemental briefing, defendant also argues that the gang expert's case-specific testimony regarding predicate offenses and gang membership was based on hearsay evidence in violation of Sanchez and the error was prejudicial, entitling him to reversal.

2. Sufficiency of Evidence Supporting Knowledge of Pattern of Criminal Activity

We begin with defendant's substantial evidence challenge. As we shall discuss, post, we agree with defendant that much of the gang evidence presented at trial is inadmissible under Sanchez, and we conclude the remaining admissible evidence is insufficient to support the substantive gang offense and the gang enhancement, requiring reversal for prejudicial error. However, in evaluating defendant's sufficiency of the evidence challenge in this section, we consider all of the evidence presented. As explained by the California Supreme Court in People v. Story (2009) 45 Cal.4th 1282, 1296, "when reviewing the sufficiency of the evidence for purposes of deciding whether retrial is permissible, the reviewing court must consider all of the evidence presented at trial, including evidence that should not have been admitted." However, pertinent to defendant's claim of evidentiary error discussed later, "the Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant's conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction ...." (Lockhart v. Nelson (1988) 488 U.S. 33, 40; accord, People v. Story, supra, at pp. 1296-1297; (People v. Lara (2017) 9 Cal.App.5th 296, p. 302, fn. 3 (Lara).)

We also conclude the overall impact of the evidence admitted in error under Sanchez is prejudicial, requiring reversal.

Turning to the claim at hand, under section 186.22, the prosecutor must prove the existence of a criminal street gang as defined in the statute and prove, as an element of the substantive gang offense, that the criminal street gang engaged in a pattern of criminal gang activity. (§ 186.22, subds. (a), (e), (f).) In this case, the prosecutor introduced evidence of five predicate offenses to prove a pattern of criminal activity by WSB, and the focus of defendant's argument, grounded in due process, is the absence of evidence he had knowledge of that specific pattern of criminal activity. We agree with the People that there is no requirement "defendant have subjective knowledge of particular crimes committed by gang members."

In People v. Castaneda (2000) 23 Cal.4th 743, 744-745 (Castaneda), the California Supreme Court construed the phrase "'actively participates'" within the meaning of section 186.22, subdivision (a). The court stated due process requires that "criminal liability rest on personal guilt[, which] means simply that a person convicted for active membership in a criminal organization must entertain 'guilty knowledge and intent' of the organization's criminal purposes." (Castaneda, supra, at p. 749, quoting Scales v. United States (1961) 367 U.S. 203, 228 (Scales).) The Castaneda court concluded that the knowledge and intent requirements under section 186.22, subdivision (a), go beyond what is required by due process (Scales, supra, at p. 228; accord, Castaneda, supra, at p. 749) and, as defendant acknowledges, the knowledge and intent requirements may be satisfied by circumstantial evidence (People v. Carr (2010) 190 Cal.App.4th 475, 488-489 (Carr)).

Relevant here, the Court of Appeal in Carr followed Castenada, explaining, "[W]e construe the phrase 'the defendant knew that members of a gang engaged in or have engaged in a pattern of criminal gang activity' [citation] to correlate to the active membership test described in Scales, that is, '"guilty knowledge and intent" of the organization's criminal purposes' [citations] ...." (Carr, supra, 190 Cal.App.4th at p. 488, fn. 13.) The statute "does not require a defendant's subjective knowledge of particular crimes committed by gang members, as urged by [the defendant]." (Ibid.) The court observed that "just as a jury may rely on evidence about a defendant's personal conduct, as well as expert testimony about gang culture and habits, to make findings concerning a defendant's active participation in a gang or a pattern of gang activity, it may also rely on the same evidence to infer a defendant's knowledge of those activities." (Id. at p. 489, fn. omitted.) We acknowledge defendant's disagreement with Carr but, in inviting us to reject its conclusion, he cites to no contrary authority that directly supports his position nor does he articulate any persuasive basis for rejecting Carr. Accordingly, we decline the invitation.

Malley described WSB's pattern of criminal gang activities or predicate offenses, and he testified gang members commonly commit crimes together and WSB's engagement in ongoing patterns of criminal activity is generally known to its members. He also testified defendant and Gonzalez were active members of WSB at the time of the crimes, an opinion based on numerous contacts police had with the two men. Additionally, defendant wore gang-related attire associated specifically with WSB on multiple occasions. Notably, one such incident was the high-speed chase during which firearms were discarded from the vehicle. Defendant had on distinctive WSB-related attire during that incident and was in the company of another man in gang attire. We conclude this is sufficient to support a reasonable inference that defendant knew WSB members engaged in a pattern of criminal activity and we reject his sufficiency of the evidence challenge to his substantive gang offense conviction.

3. Admission of Hearsay Evidence

a. Sanchez Decision

Following jury trial in this case, the California Supreme Court issued its decision in Sanchez, which fundamentally reordered the landscape of expert testimony. Sanchez considered the degree to which an expert witness may rely on hearsay evidence under state law and under federal law in light of the United States Supreme Court's decision in Crawford, supra, 541 U.S. 36. "Sanchez 'jettisoned' the former 'not-admitted-for-its-truth' rationale underlying the admission of expert basis testimony, and occasioned a 'paradigm shift' in the law." (People v. Iraheta (2017) 14 Cal.App.5th 1228, 1246 (Iraheta), quoting People v. Stamps (2016) 3 Cal.App.5th 988, 994-995 (Stamps).) The court discussed general background versus case-specific facts, making clear that an "expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Sanchez, supra, 63 Cal.4th at p. 685.) However, "[w]hen 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." (Id. at p. 686.) Moreover, "[i]f the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Ibid.)

Thus, "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.)

The court discussed at length what constitutes testimonial hearsay in Sanchez, explaining, "Testimonial 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." (Sanchez, supra, 63 Cal.4th at pp. 689, fn. omitted, 691-694.) Additionally, the formality of the statement is considered. (Id. at pp. 692-694; People v. Ochoa (2017) 7 Cal.App.5th 575, 583 (Ochoa).)

b. Analysis

As an initial matter, we reject the People's claim that defendant forfeited his hearsay and confrontation clause challenges by failing to object during trial. "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; accord, People v. Black (2007) 41 Cal.4th 799, 810.) The Sanchez decision represented a significant change in the law and, under the circumstances, we find the People's forfeiture argument unpersuasive. (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1283; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508; People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7, review granted March 22, 2017, S239442 (Meraz).)

The California Supreme Court granted review in Meraz on grounds unrelated to the issues in this appeal, but ordered the opinion remain precedential. (Cal. Rules of Court, rule 8.1115(e)(3).)

Turning to the merits of defendant's challenge, now viewed through the lens of Sanchez, the gang expert clearly relied on inadmissible hearsay during case-specific portions of his testimony relating to the predicate offenses and defendant's and Gonzalez's gang membership. (Lara, supra, 9 Cal.App.5th at p. 337; Ochoa, supra, 7 Cal.App.5th at p. 583.) Of the hearsay admitted in violation of state law, some was also testimonial and, therefore, violated the confrontation clause. The remainder, as we shall explain, may or may not have been testimonial, but the record does not allow for a determination. (Ochoa, supra, at pp. 584-585.)

1) Color, Symbols and Territory

We dispose first of defendant's assertion that Malley's testimony about WSB in general—colors, symbols and territory—was case-specific. Sanchez expressly includes this type of gang information in its discussion of general background information to which an expert may testify. (Sanchez, supra, 63 Cal.4th at p. 677.) That WSB has adopted blue as its gang color and Washington Nationals gear as a symbol, and has a traditional territory, is general background information. (Ibid.) That defendant was wearing blue clothing or a Washington Nationals hat, or was present in gang territory during a particular incident, is case-specific information. (Ibid.)

2) Predicate Offenses

Defendant's remaining arguments target the evidence supporting the predicate offense and gang membership. Regarding the five predicate offenses, defendant acknowledges Malley was personally involved in investigating two: the predicate offense involving Mayco Roman and the subsequent related predicate offense involving Tony Duval, Edwin Roman and Victor Alarcon. In contrast, Malley did not have any personal involvement in the other three predicate offenses, one of which was the probation search of Gonzalez's bedroom that revealed an illegal shotgun, gang graffiti and gang-related clothing. In testifying about these three predicates, Malley relied on police reports, conversations with other officers and court dockets.

The People take the position that Malley's testimony regarding the predicate offenses is not problematic because, one, he relied on court dockets and, two, the information is general background information permissible under Sanchez. We are not persuaded. Regarding the first argument, Malley's testimony was not limited to the court dockets and largely drew upon information obtained from police reports. (Evid. Code, § 452.5; People v. Skiles (2011) 51 Cal.4th 1178, 1186; Ochoa, supra, 7 Cal.App.5th at p. 589, fn. 10.) As defendant points out, "it was the details, not the bare convictions, that tied the offenses to WSB."

Recognizing that one of the predicate offenses related to Gonzalez, the People contend any error in its admission was harmless, even if considered case-specific.

A technical amendment was made to Evidence Code section 452.5, effective January 1, 2018. (Legis. Counsel's Dig., Assem. Bill No. 1516, approved by Governor, October 7, 2017 (2017-2018 Reg. Sess.) § 55.)

Regarding the second argument, Sanchez defined case-specific facts as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) However, the appeal in Sanchez concerned a hearsay challenge to statements introduced as evidence of the defendant's gang background. (Id. at pp. 672, 674.) Although the court mentioned the gang expert "testified about convictions suffered by two Delhi [gang] members to establish that Delhi [gang] members engage in a pattern of criminal activity" (id. at p. 672), the depth of the expert's testimony concerning the predicate offenses is unclear, nor was that specific testimony one of the issues confronting the court (id. at pp. 670, 672; see People v. Delgado (2017) 2 Cal.5th 544, 590 ["'It is axiomatic ... that a decision does not stand for a proposition not considered by the court.'"]).

The definition of case-specific facts articulated in Sanchez should not be divorced from context and viewed in isolation. As the court explained more fully, "The hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise." (Sanchez, supra, 63 Cal.4th at p. 676.) "By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge." (Ibid.)

Several Courts of Appeal have since addressed this issue. In Meraz, the court stated that the gang expert's general background testimony "plainly" included testimony about the gang's pattern of criminal activities, which the court described as "unrelated to [the] defendants or the current shooting and mirrored the background testimony the expert gave in Sanchez." (Meraz, supra, 6 Cal.App.5th at p. 1175.) In People v. Vega-Robles (2017) 9 Cal.App.5th 382, the Court of Appeal quoted Meraz for this proposition in a case in which the defendant broadly challenged the gang expert's testimony in a "scattershot approach." (People v. Vega-Robles, supra, at pp. 410-411.)

In contrast, in Ochoa, the court concluded the testimony regarding the individuals involved in the predicate offenses was case-specific, stating, "It seems clear the hearsay statements at issue in the present case—out-of-court statements by individuals admitting being members of the [South Side Locos]—are case-specific hearsay rather than general background information about the [South Side Locos]." (Ochoa, supra, 7 Cal.App.5th at pp. 588-589.) The court in Lara, too, treated the gang expert's testimony regarding the predicate offenses as case-specific. (Lara, supra, 9 Cal.App.5th at p. 337.)

Under the statute, the prosecutor was required to prove the existence of a criminal street gang and a pattern of criminal activity in which that gang engaged. (§ 186.22, subds. (e), (f).) Thus, Malley's testimony regarding the predicate offenses is relevant to both the substantive gang offense and the gang enhancement. (Lara, supra, 9 Cal.App.5th at pp. 326-327.) Under these circumstances, we are not convinced that this testimony may be fairly described as background information; that is, "testimony regarding [Malley's] general knowledge in his field of expertise." (Sanchez, supra, 63 Cal.4th at p. 676; see Stamps, supra, 3 Cal.App.5th at pp. 995-996.) We believe this determination is consistent with and follows from the court's discussion of case-specific facts versus general background information in Sanchez. Therefore, we conclude Malley's testimony regarding the predicate offenses was case-specific. (Sanchez, supra, at pp. 676-677; Lara, supra, at p. 337; Ochoa, supra, 7 Cal.App.5th at pp. 588-589; Stamps, supra, at pp. 995-996.)

As previously stated, Malley was personally involved in investigating the first two predicate offenses he described for the jury and, with the exception of one statement attributed to an unspecified suspect, there is nothing readily apparent on the face of this testimony that raises concern. Nor does defendant, who bears the burden of affirmatively demonstrating error on appeal, specifically argue otherwise. (People v. Gamache (2010) 48 Cal.4th 347, 378; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523; People v. Clifton (1969) 270 Cal.App.2d 860, 862.) Malley's testimony regarding the other three predicate offenses, however, relied on hearsay. Thus, the inquiry turns to whether these hearsay statements were also testimonial.

As the court explained in Sanchez, "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." (Sanchez, supra, 63 Cal.4th at p. 675.) Although Malley was personally involved, any statements made to or received by Malley during the course of his involvement and then relayed to the jury, if offered for the truth of the matter asserted, are hearsay.

Sanchez concluded police reports relied on by the gang expert were testimonial hearsay and, in this case, it is clear from Malley's testimony that he relied in part on police reports to describe the circumstances underlying the predicate offenses. (Sanchez, supra, 63 Cal.4th at p. 694.) As we previously explained, the court dockets evidence only the fact of conviction and Malley could not have drawn from that source the details underlying the predicate offenses. This leaves the police reports and some unspecified conversations with investigating officers as the basis for Malley's testimony. While both sources of information are hearsay, the police reports, at a minimum, "relate hearsay information gathered during an official investigation of a completed crime" and as such, are testimonial. (Ibid.; see Lara, supra, 9 Cal.App.5th at pp. 336-337; Ochoa, supra, 7 Cal.App.5th at pp. 585-586 & fn. 8.)

The People do not contend otherwise, as they do not specifically address the issue of testimonial hearsay as related to the police reports relied on by Malley in support of the predicate offenses. They focus instead on the argument that the offenses were proven by the court dockets and predicate offenses are not case-specific facts.

3) Gang Membership

Turning to the evidence of defendant's and Gonzalez's gang membership, Malley's testimony comprised the vast majority of the gang evidence presented and that testimony relied largely on case-specific hearsay. The nonhearsay evidence left supporting defendant's WSB membership is minimal. Namely, during the commission of the underlying offenses, defendant was wearing gang-related attire in the form of a shirt and a Washington Nationals hat, he had a generic Sureño gang tattoo hidden under his shirt, and the backpack he carried with him that evening had gang graffiti on it. In addition, approximately two years earlier, Littlefield had an encounter with defendant during a vehicle stop in WSB territory. Defendant was wearing a Washington Nationals hat associated with WSB, he was in the company of a second man who had generic gang tattoos, and he reacted negatively to Littlefield's derogatory comment likening WSB to taggers.

There is even less nonhearsay evidence left supporting Gonzalez's WSB membership: on the night of the crimes at issue in this case, he was wearing a Washington Nationals baseball hat associated with WSB.

We cannot simply assume that all contacts with law enforcement are testimonial, however, and as the People point out, the record is undeveloped because defendant failed to object at trial. (Sanchez, supra, 63 Cal.4th at pp. 694-698; Iraheta, supra, 14 Cal.App.5th at pp. 1251-1252; Ochoa, supra, 7 Cal.App.5th at p. 585.) As we have stated, defendant bears the burden of affirmatively demonstrating error on appeal and where we are unable to discern the specific bases for Malley's testimony so as to evaluate what is and is not testimonial, defendant's burden is unmet. (Sanchez, supra, at p. 697; Ochoa, supra, at pp. 584-585.) However, any further parsing of the issue is unnecessary because Malley's partial reliance on testimonial police reports necessitates harmless error review under the constitutional standard in any event. (See Sanchez, supra, at pp. 697-698; Iraheta, supra, at p. 1252.) Further, we find the error prejudicial even under the lower standard of review applicable to evidentiary errors under state law.

State law errors are reviewed under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 837, which requires a determination "whether there is a 'reasonable probability' that a result more favorable to the defendant would have occurred absent the error." (People v. Aranda (2012) 55 Cal.4th 342, 354.)

4) Prejudice

Having concluded that much of Malley's testimony was based on hearsay and some of that hearsay was also testimonial, we evaluate the cumulative effect of these errors under the constitutional standard of review articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Houston, supra, 54 Cal.4th at p. 1233; People v. Woods (2006) 146 Cal.App.4th 106, 117; see Sanchez, supra, 63 Cal.4th at p. 699; Iraheta, supra, 14 Cal.App.5th at p. 1254.) Under Chapman, we "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Gonzalez, supra, 54 Cal.4th at p. 663). "'To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86; accord, People v. Leon (2016) 243 Cal.App.4th 1003, 1020.) We consider "not only the evidence that would support the judgment, but also the impact of the inadmissible evidence on the final outcome." (People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.)

Determining whether the error was prejudicial "requires an examination of the elements of the gang [offense] and the gang expert's specific testimony." (Sanchez, supra, 63 Cal.4th at p. 698.) "The gravamen of the substantive offense set forth in section 186.22[, subdivision ](a) is active participation in a criminal street gang." (Albillar, supra, 51 Cal.4th at p. 55, italics added.) Participation that is merely nominal or passive does not suffice to satisfy this element. (Id. at p. 58; accord, Rodriguez, supra, 55 Cal.4th at p. 1130; People v. Johnson, supra, 229 Cal.App.4th at p. 920.) In this case, Malley testified that while it would raise suspicion, neither gang attire nor a generic gang tattoo is sufficient to support a determination that someone is an active gang member. As such, this evidence - that defendant and Gonzalez were wearing WSB-related gang attire - is not, by itself, enough to support a finding that either is an active member of WSB.

Nor are we persuaded the additional evidence that defendant has a generic "805" gang tattoo, told Littlefield he "backs the south" and appeared offended at Littlefield's taggers comment is sufficient in combination with defendant's attire the night of the crime to show active participation in WSB, as opposed to nominal or passive participation. As a result, the case-specific evidence admissible post-Sanchez falls short of that which is sufficient to support defendant's conviction for active participation in a criminal street gang; that is, that defendant's participation in WSB was more than nominal or passive and he committed a felony with at least one other WSB member. (Rodriguez, supra, 55 Cal.4th at pp. 1130-1132; People v. Johnson, supra, 229 Cal.App.4th at pp. 920-921.) Lack of sufficient admissible evidence supporting an element of an offense cannot be deemed harmless and reversal of defendant's conviction is therefore required, irrespective of the overall prejudicial impact of the hearsay evidence. (See Lara, supra, 9 Cal.App.5th at p. 337 [reversal for prejudicial error compelled where, "without the improperly admitted testimonial hearsay regarding the missing predicate offense, the prosecution would not have proved every element of either the gang crime or the gang enhancement"].)

As previously explained, because the evidence adduced at trial was, considered in its entirety, sufficient to support the jury's finding on the gang offense, retrial is permitted. (Lockhart v. Nelson, supra, 488 U.S. at p. 40; People v. Story, supra, 45 Cal.4th at pp. 1296-1297; Lara, supra, 9 Cal.App.5th at p. 302, fn. 3.)

This determination notwithstanding, we also conclude the overall impact of the evidence now inadmissible under Sanchez was prejudicial to defendant, under either standard of review. As we have discussed, the admissible evidence of WSB membership was minimal as to both defendant and Gonzalez and is not sufficient to support a determination that either was an active WSB member at the time of the crimes. (See Sanchez, supra, 63 Cal.4th at p. 699; Lara, supra, 9 Cal.App.5th at p. 337.) The inadmissible evidence, in contrast, was significantly stronger and more compelling. (See Sanchez, supra, at p. 699; Iraheta, supra, 14 Cal.App.5th at pp. 1254-1255; Lara, supra, at p. 337.) In particular, Malley's testimony regarding the majority of the incidents—six out of eight—supporting his opinion that defendant was a WSB gang member at the time of the crime is inadmissible under Sanchez. Four of those incidents involved striking facts: an officer witnessed defendant tossing a sawed off shotgun in the bushes; officers located defendant in an apartment containing weapons, gang graffiti and photographs of people throwing gang signs; an officer located defendant at a park in the company of two WSB members with wet paint on his hands and in the proximity of gang graffiti and crossed-out monikers; and, following gunfire, defendant was involved in a high-speed chase during which firearms were tossed from the vehicle. During that high-speed chase, defendant was also decked out in gang attire and was in the company of another man with visible gang tattoos.

Under these circumstances, we cannot conclude "there is [no] 'reasonable probability' that a result more favorable to the defendant would have occurred absent the error" (People v. Aranda, supra, 55 Cal.4th at p. 354), let alone conclude "it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error" (People v. Merritt, supra, 2 Cal.5th at p. 831). (Sanchez, supra, 63 Cal.4th at p. 699; Iraheta, supra, 14 Cal.App.5th at p. 1255; Lara, supra, 9 Cal.App.5th at p. 337.) Accordingly, defendant is entitled to reversal of his conviction for violating section 186.22, subdivision (a).

D. Gang Enhancement Claims

The STEP Act also provides for the enhancement to a sentence of "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 ...." (§ 186.22, subd. (b)(1).) "'A criminal offense is subject to increased punishment under the STEP Act only if the crime is "gang related."'" (Albillar, supra, 51 Cal.4th at p. 60.) Although gang membership is not an element of the enhancement, gang evidence can nevertheless bolster the prosecution's theory on the elements it is required to prove. (Sanchez, supra, 63 Cal.4th at pp. 698-699; People v. Gutierrez (2009) 45 Cal.4th 789, 820; People v. Hernandez, supra, 33 Cal.4th at pp. 1044-1049; People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 541.) That is, "[g]ang membership is simply circumstantial evidence establishing that the crime was gang related and a motive for why a defendant may have harbored the 'specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Villa-Gomez, supra, at p. 540.)

2. Sufficiency of the Evidence Supporting Enhancement

We have concluded that, following Sanchez, admission of the gang evidence vis-à-vis Malley's testimony prejudiced defendant, entitling him to reversal of the substantive gang offense. Although the substantive gang offense and the gang enhancement strike at different things, our prior analysis applies equally to the enhancement. The quantity and quality of the inadmissible gang evidence simply overwhelms the minimal admissible evidence, and we cannot conclude the error was harmless under either standard of review. (Sanchez, supra, 63 Cal.4th at p. 699; Iraheta, supra, 14 Cal.App.5th at p. 1255; Lara, supra, 9 Cal.App.5th at p. 337.) Therefore, defendant is also entitled to reversal of the gang enhancement attached to counts 1 through 4 for Sanchez error. However, defendant also challenges the sufficiency of the evidence supporting the first prong of the gang enhancement and we must resolve that issue because it controls whether double jeopardy bars retrial of the enhancement. (Lockhart v. Nelson, supra, 488 U.S. at p. 34; People v. Story, supra, 45 Cal.4th at pp. 1296-1297; Lara, supra, at p. 302, fn. 3.)

Defendant's attack is directed at the sufficiency of the evidence he committed the robbery, assault with a firearm, shooting at an occupied vehicle and attempted murder "for the benefit of ... or in association with [a] criminal street gang ...." (§ 186.22, subd. (b)(1), italics added.) Evidence that gang members came together to commit a crime may constitute substantial evidence that a crime was committed in association with the gang. (Albillar, supra, 51 Cal.4th at p. 62.) As well, "'[e]xpert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support" the enhancement. (People v. Vang (2011) 52 Cal.4th 1038, 1048 (Vang), quoting Albillar, supra, at p. 63.)

We note defendant's argument that Gonzalez's statements to Rodriguez and Valles in the car are also hearsay that was improperly admitted and, therefore, the statements cannot supply the necessary foundation for the jury's determination that defendant committed the robbery in association with WSB. We agree Gonzalez's statements underpinned the prosecutor's theory that the robbery was committed in association with WSB. However, as discussed in the next section, we reject defendant's challenge to the trial court's admission of those statements.

Defendant and Gonzalez, both WSB members, went out that night attired in their "gang uniform" and entered a 7-Eleven that both frequented as customers. On previous occasions, defendant had been polite and well dressed. This time, he took some beer cans from the cooler and headed for the door. When the store clerk confronted him and threatened to call the police if he did not put the cans down, he immediately reacted by pulling out a gun, telling her she was not going to do that and threatening to kill her. Gonzalez was aware of what was happening and after he left the store and reentered the car, he told Rodriguez to leave and then told her to wait for defendant.

These facts provided the basis for the expert's response to the prosecution's hypothetical. Malley explained the crimes were in association with the gang because two gang members were together wearing obvious gang clothing. While one gang member was directly involved in the robbery, the other was openly aiding him by attempting to ensure his escape following the crime. Malley testified the two were supporting each other and backing each other up, as is the expectation in gang culture.

Malley also testified the crimes benefitted the gang in several ways. In particular, the crimes involved a firearm displayed in plain view for the public to see, which advances the gang's interest in causing fear and intimidating the public. This fear and intimidation in turn makes the public reluctant to call the police or cooperate with investigations, which earns the gang respect and bolsters its reputation. Additionally, Malley opined that the escalation of a minor petty theft into a robbery or shooting by someone in gang attire benefits the gang because it very publicly transforms what was a minor crime that could have gone unnoticed into a more serious crime. This results in "putting it out there to the public they are part of a gang." Malley testified regarding the roles of respect and disrespect within the gang, and the escalation in crime is responsive to the interference with a gang member by a member of the public. Malley explained that "perceived ... disrespect" toward someone wearing the gang attire—and therefore toward the gang as a whole—must be redressed immediately or the gang will be perceived as weak.

In this case, defendant's use of a firearm and rapid escalation of a theft into an armed robbery into the attempted murder of a police officer were effective means of instilling fear and intimidating the public. In addition to evidence defendant threatened Carrillo's life with the gun, Rodriguez testified she was crying and panicking, and defendant and Gonzalez scared her. She also testified that Valles was crying, and a woman who arrived at 7-Eleven as the robbery was unfolding testified she saw defendant with the gun, which was scary. As well, defendant's violent actions were responsive to the store clerk's interference with the beer theft and police interference by virtue of Barber's arrival at the scene before defendant could escape. Thus, the actions not only openly demonstrated the gang's ready willingness to resort to violence, but were immediately responsive to perceived disrespect toward the gang, thereby demonstrating that the gang was not weak. Moreover, Gonzalez bore witness, as an active gang member, to defendant's adherence to gang code.

We conclude the facts underlying the crimes and the gang expert's testimony regarding gang culture and motivation are sufficient to support the jury's findings that the crimes were committed in association with or for the benefit of WSB. Indeed, Malley's testimony regarding gang culture and his response to the prosecution's hypothetical provide a plausible motive for what was an otherwise inexplicable escalation in crime. The parties agree that Gonzalez was not involved in the shooting, but the evidence is sufficient to show that the crimes of assault, shooting at an occupied vehicle and attempted murder, along with the robbery, benefitted WSB. (See People v. Weddington (2016) 246 Cal.App.4th 468, 484 [first prong of gang enhancement is in the disjunctive].)

Defendant asserts that Malley's expert opinion lacked the necessary foundation because he failed to "provide 'case specific' information on the WSB's embrace of the generalities of [the] gang culture" about which he testified. However, this proposition is not supported by the authority defendant cites. Defendant relies on People v. Prunty (2015) 62 Cal.4th 59 (Prunty), although he acknowledges the issues resolved by Prunty are different. In Prunty, the California Supreme Court held that "'criminal street gang'" within the meaning of the STEP Act "calls for evidence that an organizational or associational connection unites the 'group' members[, and] [w]hen ... the prosecution relies on the conduct of subsets to show a criminal street gang's existence, the prosecution must show a connection among those subsets, and also that the gang those subsets comprise is the same gang the defendant sought to benefit." (Id. at p. 85.) This case involves neither the failure to prove that WSB is a criminal street gang nor any arguable confusion over which criminal street gang defendant acted in association with or for the benefit of and, as a result, we find defendant's reliance on Prunty for this proposition unpersuasive.

Similarly unavailing is defendant's reliance on our decisions in People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon) and In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) in support of his insufficiency of the evidence claim. These cases stand for the proposition that an expert's opinion must be based on facts rooted in evidence. (Ramon, supra, at p. 851; Frank S., supra, at p. 1199; accord, People v. Franklin (2016) 248 Cal.App.4th 938, 950; People v. Rios (2013) 222 Cal.App.4th 542, 574.)

In Frank S., we found the gang enhancement attached to one count of carrying a concealed dirk or dagger unsupported by substantial evidence. (Frank S., supra, 141 Cal.App.4th at pp. 1194-1195.) Unlike this case, Frank S. was alone. He was riding his bike when he failed to stop at a red light and he thereafter provided an officer with a false name. The officer found a knife, a drug bindle and a red bandana on Frank S. After his arrest, Frank S. told the officer he was carrying the knife for protection "against 'the Southerners' because they feel he supports northern street gangs. [He] also stated he has several friends in the northern gangs." (Id. at p. 1195.)

The gang expert simply testified regarding her belief about Frank S.'s intent and how carrying a knife benefitted the Norteños. (Frank S., supra, 141 Cal.App.4th at p. 1199.) Notably absent was "[a]ny evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense." (Ibid.) We explained that "the only other evidence was the minor's statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minor's specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Ibid.) We concluded that "appellant's criminal history and gang affiliations cannot solely support a finding that a crime is gang-related under section 186.22" (ibid., citing People v. Martinez (2004) 116 Cal.App.4th 753, 761), and we published expressly for that purpose (Frank S., supra, at p. 1195).

In Ramon, we again found a gang enhancement unsupported by substantial evidence. (Ramon, supra, 175 Cal.App.4th at p. 853.) In that case, a sheriff's deputy pulled the defendant over while he was driving a stolen truck in Colonia Bakers gang territory. (Id. at p. 847.) Another man was riding in the truck with the defendant and the deputy found an unregistered gun under the driver's seat. (Ibid.) Relying on the facts that the defendant and his passenger were active Colonia Bakers members and the defendant was pulled over in Colonia Bakers territory, the gang expert testified the stolen vehicle and unregistered firearm benefitted the gang because they were tools to facilitate other crimes and the gang commits crimes. (Id. at pp. 847-848, 849.)

We found the facts on which the expert based his opinion—gang membership and presence in gang territory—were insufficient to support his opinion as to the defendant's intent and, therefore, his opinion did not constitute substantial evidence in support of the jury's finding. (Ramon, supra, 175 Cal.App.4th at pp. 851, 853.) We observed, however, that "[t]he analysis might be different if the expert's opinion had included 'possessing stolen vehicles' as one of the activities of the gang. That did not occur and we will not speculate. [¶] Simply put, in order to sustain the People's position, we would have to hold as a matter of law that two gang members in possession of illegal or stolen property in gang territory are acting to promote a criminal street gang. Such a holding would convert section 186.22(b)(1) into a general intent crime. The statute does not allow that." (Id. at p. 853.)

The evidence in this case does not suffer from the deficiencies that informed our decisions in Ramon and Frank S. An expert may opine, as Malley did here, that the crime committed was in association with or benefitted the gang and that opinion may be, as it is here, sufficient to support the enhancement. (Vang, supra, 52 Cal.4th at p. 1048.) What an expert may not do is base his opinion "'"on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors ...."'" (Id. at p. 1046; accord, People v. Franklin, supra, 248 Cal.App.4th at pp. 948-949; People v. Rios, supra, 222 Cal.App.4th at p. 574; Frank S., supra, 141 Cal.App.4th at p. 1199.) That is, the hypothetical question presented to the expert "must be rooted in evidence of the case being tried ...." (Vang, supra, at p. 1046.) Here, Malley offered his opinion on whether the crimes were committed in association with or for the benefit of the gang based on a hypothetical question that tracked the specific facts of this case shown by the evidence, distinguishing it from Ramon and Frank S. We acknowledge this is a close case but conclude that the jury's finding defendant acted in association with or for the benefit of WSB is supported by substantial evidence. Defendant is nevertheless entitled to reversal based on the error under Sanchez, however.

E. Admission of Gonzalez's Statements

Finally, defendant challenges the admission of Gonzalez's statements. Over defendant's objections, the trial court admitted Rodriguez's testimony that Gonzalez told her to leave the parking lot, Valles's testimony that Gonzalez told Rodriguez to wait for defendant and both women's testimony that Gonzalez told them not to give his name and to plead the Fifth Amendment. The trial court ruled the statements were admissible as spontaneous and contemporaneous statements under Evidence Code sections 1240 and 1241.

Section 1240 of the Evidence Code provides that "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
Section 1241 of the Evidence Code provides that "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and [¶] (b) Was made while the declarant was engaged in such conduct."
"A statement may be admitted, though hearsay, if it describes an act witnessed by the declarant and '[w]as made spontaneously while the declarant was under the stress of excitement caused by' witnessing the event. [Citation.] '"To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." [Citations.]'" (People v. Gutierrez, supra, 45 Cal.4th at pp. 809-810; accord, People v. Merriman (2014) 60 Cal.4th 1, 64.)

Defendant argues the trial court erred in admitting the statements as spontaneous or contemporaneous statements because they did not explain, describe or narrate anything just witnessed by Gonzalez nor did they accompany any conduct by Gonzalez. The People take the position that the statements are not hearsay, as they were not offered for the truth of the matter asserted and they were requests or directions. Alternatively, they argue the statements were properly admitted under Evidence Code sections 1240, 1241 and 1250.

Section 1250 of the Evidence Code provides that "(a) Subject to [Evidence Code] Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.
"(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed."

We review a trial court's ruling on the admission or exclusion of evidence for abuse of discretion. (People v. Kopatz (2015) 61 Cal.4th 62, 85; People v. DeHoyos (2013) 57 Cal.4th 79, 131.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151; accord, People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) "'[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm.'" (Zamudio, supra, 43 Cal.4th at p. 351, fn. 11; accord, People v. Brooks (2017) 3 Cal.5th 1, 39.)

"'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) We agree with the People that Gonzalez's statements are not hearsay. As the California Supreme Court has explained, "[b]ecause a request, by itself, does not assert the truth of any fact, it cannot be offered to prove the truth of the matter stated." (People v. Jurado (2006) 38 Cal.4th 72, 117; accord, People v. Curl (2009) 46 Cal.4th 339, 362; see People v. Clark (2016) 63 Cal.4th 522, 592.) In this case, Gonzalez's directives or requests to Rodriguez and Valles were not offered for the truth of any fact asserted therein but in an effort to link Gonzalez to the crimes by showing he was assisting defendant. (People v. Jurado, supra, at p. 117; People v. Bolden (1996) 44 Cal.App.4th 707, 714-715 & fn. 5; see People v. Clark, supra, at p. 592.) Thus, the statements are not hearsay and we affirm the trial court's ruling, albeit on alternate grounds. (Zamudio, supra, 43 Cal.4th at p. 351, fn. 11; accord, People v. Brooks, supra, 3 Cal.5th at p. 39.)

DISPOSITION

Defendant's conviction for violation of Penal Code section 186.22, subdivision (a), and the jury's Penal Code section 186.22, subdivision (b)(1), gang enhancement allegation findings attached to counts 1 through 4 are reversed for prejudicial error under Sanchez. Retrial is permitted (Lockhart v. Nelson, supra, 488 U.S. at p. 34; People v. Story, supra, 45 Cal.4th at pp. 1296-1297), and after the filing of the remittitur in the trial court, the People shall have 30 days in which to file a written election to retry defendant on the substantive gang offense and the gang enhancement allegations. If they do not timely file such an election and/or do not bring defendant to retrial within the time set forth in Penal Code section 1382, subdivision (a)(2)—60 days unless waived by defendant—the trial court shall proceed to resentence defendant.

The judgment of conviction is otherwise affirmed.

/s/_________

MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.


Summaries of

People v. Garcia

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 4, 2018
No. F072596 (Cal. Ct. App. Jan. 4, 2018)
Case details for

People v. Garcia

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANIEL A. GARCIA, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 4, 2018

Citations

No. F072596 (Cal. Ct. App. Jan. 4, 2018)

Citing Cases

People v. Garcia

PROCEDURAL HISTORY This matter is before us a second time after defendant Daniel A. Garcia was resentenced in…