People
v.
Villareal

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICTSep 10, 2018
H038081 (Cal. Ct. App. Sep. 10, 2018)

H038081

09-10-2018

THE PEOPLE, Plaintiff and Respondent, v. JOSE VILLAREAL et al., Defendants and Appellants.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS090625)

Defendants Jose Villareal and Carlos Fletes were each convicted by jury trial of possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)) and active participation in a criminal street gang (§ 186.22, subd. (a)). Fletes was also convicted of possession of ammunition by a felon (§ 12316, subd. (b)(1)). The jury found true gang enhancement allegations (§ 186.22, subd. (b)(1)(A)) as to the possession offenses, and Fletes admitted prior serious felony and strike allegations (§§ 667, subd. (a), 1170.12). The jury acquitted defendants of assault with a firearm on a peace officer (§ 245, subd. (d)(1)). Both defendants were committed to state prison.

Subsequent statutory references are to the Penal Code unless otherwise specified.

On appeal, they contend that (1) the gang enhancements and the active participation convictions are not supported by substantial evidence, (2) the trial court prejudicially erred in permitting the prosecution's gang expert to testify to testimonial, case-specific hearsay in violation of defendants' Sixth Amendment rights, (3) the trial court prejudicially erred by admitting into evidence a subsequent offense by Villareal while he was in jail, (4) the trial court prejudicially erred in admitting inflammatory gang and other prior acts evidence over defense Evidence Code section 352 and other objections, (5) the prosecutor committed misconduct both in his cross-examination of defense witnesses and in his arguments to the jury, (6) the trial court's instruction on the active participation counts was prejudicially erroneous, and (7) these errors were cumulatively prejudicial. Defendants also ask us to independently review the materials that the trial court reviewed in response to their Pitchess motions.

Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

We find insufficient evidence to support the active participation counts and the gang enhancement attached to the ammunition possession count. We also conclude that the trial court prejudicially erred in permitting the gang expert to testify to case-specific testimonial hearsay in violation of defendants' Sixth Amendment rights. Since we conclude that this error was prejudicial as to not only the gang enhancements but also the possession counts, we reverse the judgment in its entirety.

I. Factual Background

The Monterey County Joint Gang Task Force (GTF) was created to respond to gang violence by not only enforcement but also intervention and prevention. The GTF was not an "investigative unit"; its role was to "arrest gang members and get weapons off the street." The GTF did "a lot of surveillances" in unmarked vehicles so that gang members would not be alerted to the presence of law enforcement.

Between January 1, 2009 and January 15, 2009, there were 16 shootings and five or six homicides in Salinas, including five homicides in the four or five days before January 15. All of them were gang-related, and none of them had been "solved" by January 15. The GTF received information from confidential informants that vehicles associated with two of the recent homicides might be at J&R Auto Body (J&R or the shop) on Dayton Street in Salinas. J&R was housed in a warehouse in an industrial area on a dead-end street.

Monterey County Deputy Sheriff Bryan Hoskins was a member of the GTF. Hoskins and his partner, Probation Officer Chris Plummer, knew that Fletes owned J&R, and Hoskins had encountered Fletes before. Plummer was familiar with a previous location of the predecessor of J&R because a gang-related homicide had occurred in front of that location. Deputy Jesse Pinon, another GTF member, whose partner was Probation Officer Leo Salas, did not know Fletes.

GTF members included both sheriff's deputies and probation officers.

On the afternoon of January 15, 2009, Salinas Police Sergeant Don Cline asked Pinon and Salas to go to J&R to see if a green minivan that had been used in the commission of one of the January 2009 homicides was at J&R "being repainted." Pinon and Salas were also on the lookout for a "white Nissan Altima" that had been "taken" during a different recent homicide. Pinon had information suggesting that Villareal had taken the Altima. Hoskins, Plummer, Salas, and Pinon were all familiar with Villareal. Hoskins had "previously conducted a parole compliance search at [Villareal's] residence." Plummer had encountered Villareal during a traffic stop when Villareal was "in a vehicle with some other Sureno gang members." Pinon had had prior contacts with Villareal and knew that Villareal was "a Sureno gang member from Long Beach" and "a convicted felon." Plummer, Salas, and Pinon knew that Villareal's "street moniker" was "Travieso," which means "Troublemaker" in Spanish.

The trial court instructed the jury that this information was not admissible for its truth but only to show that Pinon was "lawfully engaged in the performance of his duties."

Pinon's testimony on this point was admitted over a defense relevance objection.

At about 7:00 p.m. on January 15, 2009, Pinon and Salas went to J&R to "conduct a surveillance." Pinon was driving an unmarked gold Buick that day with Salas in the passenger seat. The area was deserted, and no businesses were open except for J&R. As they drove slowly by J&R, they saw Villareal standing at the threshold of the shop's 16-foot-wide bay door and staring at them. The bay door did not face the street; it was perpendicular to the street. Two vehicles were parked outside J&R between Dayton Street and the bay door. Fletes was either outside the bay door or inside the bay door about 10 to 15 feet away from Villareal. When Pinon and Salas reached the end of the street, Pinon made a U-turn and parked in a position where he could watch the bay door. Pinon made a phone call to Cline and told Cline that he had not seen the van. Cline suggested possibly getting "some CHP guys to do a business inspection" to look for the van the next day, and he also told Pinon to look again at J&R.

Pinon also testified that both men had their hands "kind of at their waistband" when they drove by the first time.

After remaining parked for about 10 minutes, Pinon drove slowly back past J&R. As the Buick passed by the shop, Fletes was either at the threshold of the bay door with "his hand at his waistband" or still 15 feet inside the shop. Villareal, who was at the threshold of the shop, made eye contact with Salas, and then reached "into a stack of tires," "[r]etrieve[d] something from the stack of tires," and "put it behind his back." The object, which was small and "dark-colored," appeared to be a firearm. After retrieving this object, Villareal "started squatting down."

When Pinon was interviewed after the shooting, he said that he saw only Villareal on the second driveby.

Salas testified that Villareal used his left hand to retrieve the object. Pinon testified on direct that Villareal used his right hand and on cross that Villareal used his left hand.

Pinon and Salas proceeded a short distance down Dayton Street and parked where they could keep an eye on J&R. Pinon saw Villareal "come out" and look at their car. After a couple of minutes, Pinon moved the Buick further down the street. Pinon called Hoskins and told Hoskins that Villareal was at J&R and that Pinon had seen Villareal "remove a firearm from a set of tires and place it into his rear waistband." Pinon sought Hoskins's assistance in arresting Villareal for being a felon in possession of a firearm. Hoskins, who was driving a marked patrol car with Plummer as his passenger, arrived at Pinon's location within 10 minutes of Pinon's call.

Pinon and Salas drove up Dayton Street again, this time with Hoskins and Plummer behind them, and both vehicles turned from Dayton Street into the driveway that ran in front of J&R. The area was "very quiet." The bay door of J&R remained open, and lights were on both inside and outside the shop. All of the adjacent businesses were closed and dark. Villareal and Fletes were both standing in front of the shop between a vehicle and the bay door in a well-lit area. When the Buick pulled in, Pinon saw Villareal staring at them and reaching into his waistband. However, a second later Villareal and Fletes shifted their attention to Hoskins's marked patrol car. The two men immediately turned and "ran into" the shop through the open bay door. As they were running, Hoskins noticed that they both "appeared to be holding their waistband[s]" with both hands. Hoskins was alert to their "holding their waistband[s]" because this conduct often indicated that the person doing so had a firearm in his waistband. Neither Plummer nor Salas saw either man holding his waistband.

Hoskins testified that one man was "crouching down," and the other was "standing up." Hoskins's report stated that both men were standing, not crouching. At the preliminary examination, he testified that one man was crouched down. Salas testified that both men were standing. Pinon testified that he saw only Villareal and focused on only Villareal.

Pinon got out of his car and immediately ran into the shop after Villareal, "yelling 'Stop, Police' " and " 'Travieso, stop.' " Salas followed. Pinon and Salas were wearing "regular street clothes" but with vests that read "Sheriff" on both the front and back. As Pinon ran toward the shop, he pulled out his firearm. Pinon was within 10 feet of Villareal and Fletes, and he heard Villareal "saying something to the rear of the warehouse." Pinon could not hear what Villareal was saying. Villareal's hands were "on his waistband," and he was "looking back" at Pinon. Hoskins also got out of his car and ran toward the door to the shop. Pinon yelled at Hoskins that the men were running toward the back and told Hoskins to "go around the back." Hoskins turned around and ran around the back exterior of the shop with Plummer joining him.

There were more than a dozen vehicles parked inside the shop, which was about 70 feet deep and equally wide. Pinon saw Villareal go toward a Cadillac and then "veer left" and "duck[] down behind some cars" to his left. Pinon slowed down because he "remembered" that there was a second man there, and he could no longer see Villareal. As Pinon looked around the shop, he saw Fletes "emerge," "turning towards me with a firearm in his hand." Fletes was "crouched" 10 feet in front of a Cadillac near the rear of the shop, and Pinon was about 10 feet behind the Cadillac in the middle of the shop. Pinon said " 'Gun' " and fired his weapon at the object in Fletes's hands. Fletes's "hands separate[d]," he dropped the object, and he fell forward onto the floor. Pinon did not see where the object went, but it did not fly over Fletes's shoulder nor did Fletes throw it anywhere.

Pinon testified at trial that Fletes had "both of his hands on the firearm," and the firearm was "right below his chin, about his chest level." Pinon also testified that he saw "the barrel of the firearm pointed at me."

These events happened very quickly. As Salas approached the bay door, he heard a gunshot. Salas stopped and observed that Pinon was "towards the back of the warehouse," standing behind a car with his gun out. Before Hoskins and Plummer reached the rear exterior of the shop, they heard a single gunshot from inside the shop. Hoskins ran back to the front of shop while calling for backup, and Plummer remained at the rear. Hoskins found Salas standing at the doorway to the shop "peering inside" with his gun out and pointed into the shop. Pinon was deep inside the shop, standing behind a vehicle, and "challenging someone." Hoskins ran into the shop and found Pinon pointing his gun at the rear of the shop and "challenging" Fletes, who was "lying on the ground" with his hands on the ground, facing the shop's bay door. Pinon, who was an expert marksman, told Hoskins that he had fired the shot and that Fletes "had a gun."

Hoskins asked where Villareal was, and Pinon pointed toward a hallway at the rear of the shop. Hoskins initially scanned the shop and saw nothing. Pinon remained focused on Fletes. Looking around the shop again, Hoskins saw Villareal hunched down and "creeping along" the left wall, moving away from Hoskins toward the bay door. Numerous vehicles were parked along that wall. Hoskins could not see Villareal's hands, so he pointed his gun at Villareal and told him to show his hands. Villareal "move[d] about between the cars a little bit," and Hoskins repeated his commands "several times." After about four to seven seconds, Villareal put up his hands and said "Don't shoot, don't shoot." However, he then put his hands down and backed away from Hoskins. He put his hands up again and then down again as he walked along the left wall. Villareal eventually came to a pair of vehicles that were parked very close together, and, at Hoskins's direction, he climbed over them to reach Hoskins.

Salas handcuffed Villareal, removed him from the shop, and placed him in a patrol car. Salas pat searched Villareal and found no weapons on him. Hoskins returned to Pinon, and they instructed Fletes, who was saying that he had been shot and asking for help, to crawl toward them. Hoskins asked Pinon if he knew where the firearm was, and Pinon "said he did not." During the minute that it took Fletes to crawl to the bay door, he did not ask why he had been shot. When he reached the bay door, he was handcuffed and turned over to emergency personnel for treatment. Fletes had a gunshot wound through his right hand and a second wound to his right lateral abdominal flank. The bullet had entered the back of his hand and exited the palm of his hand. Fletes had a blue Nitrile glove on his right hand. He was taken to a trauma center by helicopter. At the hospital, Fletes, who was sedated, held up his injured hand and said: " 'The officer was a good shot.' "

Hoskins testified that he never saw Fletes wearing a paint mask.

After Villareal and Fletes had been removed from the scene, Pinon, Hoskins, Salas, and Plummer did not reenter the shop. Other officers went through the shop looking to see if there was anyone else inside. One officer saw a semiautomatic .22 caliber handgun "sitting inside" a "very old black car" near the left side of the shop. The semiautomatic was lying on top of a large piece of glass that was "resting" on the car's front seat. The car was covered in "[v]ery thick" dust. However, the semiautomatic was "clean," with "no dust on it," and "there was also a clear mark where it had slid down" the glass recently. The semiautomatic was loaded with 10 rounds in the magazine and one in the chamber. A shoeprint on the hood of a yellow Mustang parked next to the "very old black car" was consistent with the sole pattern of the Reeboks that Villareal was wearing.

A .38 caliber revolver was found in plain sight just under the rear bumper of a Corvette parked in the very rear of the shop. The revolver was about five to six feet away and to the left and rear of the pool of blood left by Fletes. The revolver contained five rounds of ammunition. The ground near the revolver was "very dusty," but the revolver was "very clean" and "shiny" with no dust on it. Near the revolver, there were "streaks" in the dust, but no indication of how the revolver had come to be at that location. The dust underneath the revolver was undisturbed. A small amount of blood was on the revolver, but it was not blood spatter. The revolver had no impact damage. An "air sprayer" and "hose" with blood on them were lying next to the pool of blood, a few feet closer to the revolver.

A search of the shop's office discovered two firearm-related items in a filing cabinet. On the bottom of the top drawer of the filing cabinet was a "padded holder for a gun," which was obscured by file folders above it. The bottom drawer of the filing cabinet contained "miscellaneous junk," including a box of "nine-millimeter ammunition" that contained about 27 rounds. Between a "mini-fridge" and a wall near the bay door was a "padded bag" holding a towel, one 9-millimeter round that was the same brand as the ammunition found in the filing cabinet drawer, and five 45-millimeter rounds. The green minivan was not found in the shop. An inspection of the shop the following day confirmed that there were no stolen vehicles or stolen auto parts present.

At the time of his arrest, Villareal had tattoos on his chest that read "SUR" and "Longo." Longo is a Sureno gang in Long Beach. On his arm, Villareal had an "ESL" tattoo, which stood for "East Side Longos." He also had tattoos that read "Long" and "Beach."

Fletes owned a residence on Navajo Drive in Salinas. The Navajo Drive residence was searched by law enforcement on January 27, 2009, 12 days after the January 15 shooting. Fletes was not present at the house when it was searched, and it was not clear whether he was still living there. Documents bearing the names of Fletes and his wife were found in the master bedroom's closet. A blue Dallas Cowboys jersey bearing the number 31 was lying on the floor in front of the master bedroom's closet. The blue color and the number (an inverted 13) suggested an association with the Sureno gang. Photos of Fletes with Villareal and an August 2008 letter to Fletes from "a Mr. Alvarado," who was in prison, were also found in the master bedroom. One photo of Fletes and Villareal showed Villareal wearing a Dallas Cowboys jersey. Another photo showed Fletes wearing a different Dallas Cowboys jersey with the number 31 on it.

The only persons at the home at the time of the search were three children, who were not Fletes's children. A woman named Minerva Ramirez was living there.

Another bedroom in the Navajo Drive residence contained clothing bearing Villareal's name and other items of male clothing. On a shelf in the closet of that bedroom were a .380 caliber semiautomatic handgun that had eight rounds in its magazine, a "spare magazine" containing four additional rounds, and "the internal mechanisms of a magazine for an assault rifle." The handgun was not registered to Villareal or Fletes.

In the Navajo Drive residence's garage, on an upper shelf, there was a gun cleaning kit for a rifle or shotgun, an empty magazine for a .22 caliber semiautomatic, and parts of a magazine for an assault weapon. A box in the garage contained "some gang lyrics or possible rhymes or poems . . . ." A green backpack was lying on the garage floor next to a motorcycle. The pocket of the backpack held two rounds of hollow point 9-millimeter ammunition. Papers in the backpack included more lyrics and an October 2008 letter addressed to Fletes at the Navajo Drive address.

In the Navajo Drive residence's kitchen, a cabinet held a bag containing "several different rounds of ammunition," medicine with Fletes's name on it, and "a couple of letters" dated February and March 2008 addressed to Fletes from a prisoner named Frank Alvarado. The ammunition was in the back of the cabinet behind the other items but could be seen without moving the other items. Another kitchen cabinet contained a bag holding several rounds of .22 caliber ammunition.

While Villareal was in jail, about 230 phone calls were made from the jail to Fletes's number. About 140 of those calls were not answered.

II. Procedural Background

Defendants were charged by amended information with assault with a firearm on a peace officer with firearm allegations (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (e)) and gang allegations (§ 186.22, subd. (b)(1)(C)). Each of them was also charged with possession of a firearm by a felon with gang allegations and with active participation in a criminal street gang. Fletes alone was charged with possession of ammunition by a felon with a gang allegation, and it was alleged that Fletes had suffered a prior strike and serious felony conviction.

The prior conviction allegations were not bifurcated, but Fletes admitted them before the case was submitted to the jury.

Salinas Police Officer Robert Zuniga testified at trial for the prosecution as its gang expert. Zuniga testified that the Sureno gang qualified as a criminal street gang under section 186.22. He testified about seven predicate offenses, four of which had been committed by persons other than defendants, two of which had been committed by Villareal, and one of which had been committed by Fletes. Zuniga also testified that, in his opinion, Fletes and Villareal were members of the Sureno gang and were active participants in that gang. He supported his gang membership and active participation opinions in part on his extensive testimony, based on his "reading of the police report[s]," about defendants' numerous prior "contacts with law enforcement." Zuniga also testified, in response to a hypothetical based on the evidence of the January 15, 2009 incident, that the possession offenses had been committed for the benefit of or in association with the Sureno gang and had been committed with the specific intent to promote, further, or assist in criminal conduct by a Sureno gang member and the Sureno gang.

Salas testified at trial that he did not have a "backup gun," though he knew that there were officers who did. He did not know if Pinon or Hoskins had a "backup gun." The parties stipulated that the .38 caliber revolver had been stolen from its registered owner in Los Angeles in 2000, that the registered owner of the .22 caliber semiautomatic had sold the gun, and that the .22 caliber semiautomatic had been resold multiple times, with the final purchaser unknown.

Malcolm Klein testified as a gang expert for Fletes. Klein was a retired college psychology professor who had been involved in "gang research" and "gang intervention" in Los Angeles since 1962 and had written at least 10 books on gang issues. He had reviewed the information provided to him about Fletes and concluded that Fletes was "[i]n all likelihood . . . not an active gang member" on January 15, 2009. Klein testified that Fletes's age, 28 years old in January 2009, combined with his lack of recent documented gang activities, suggested that he was no longer a gang member. In his view, it was not unusual for former gang members to continue to associate with gang members. Nor was it unusual for a former gang member to try to help a current gang member leave the gang. Fletes's parole officer testified that he had done "well" during his parole, incurred no parole violations, and been discharged from parole after 13 months.

At the time of trial, in January 2012, Fletes was 31 years old.

The defense presented forensic analysis evidence indicating that the path of the bullet fired by Pinon was inconsistent with Pinon's claim that Fletes was facing him and aiming a gun at him, and consistent with Fletes's claim that he was holding a paint sprayer when Pinon shot him. The bullet's trajectory reflected that Fletes's body was "in a relative sideways position" to Pinon at the time of the shooting. The defense forensic analyst testified that Pinon's description of the shooting "defies the laws of physics." The bloodstain pattern on the paint sprayer was consistent with it having been in Fletes's left hand when Pinon's bullet came through Fletes's right hand. The defense analyst testified that the blood spatter pattern indicated that the paint sprayer was no more than two or three feet from the right hand when the bullet passed through the right hand and that the paint sprayer's "grip" was depressed at that time.

Both Fletes and his wife, Sandra Fletes (Sandra), testified for the defense at trial. Fletes testified that he used to be a gang member when he was young. He was a member of La Posada Trece, a Sureno gang. Fletes admitted that he had been convicted by guilty pleas in 2001 of possession of stolen property and of "ex-felon with a firearm" and that he had admitted that he was a gang member at that time. He was sent to prison in 2001 at the age of 22. When he got to prison, his life changed. He wanted to avoid ever going back to prison, so he went to church, took classes, and went through training to become a firefighter. He kept "as busy as I could" and minimized his contact with gang members. Fletes became a firefighter and spent "eight to nine months" at a fire camp near the end of his prison sentence. He learned to "get along with other people." While he was in prison, he married Sandra and committed to her that he would change his life.

He was paroled in 2003, obtained employment, and went to college to learn to be a "diesel tech." After he obtained that training, he went to work for Ford. Fletes worked for Ford from 2004 to 2007. He did not engage in any gang activity. Fletes started working at J&R's predecessor, Junior's Auto Collision, in late 2007. When he worked at Junior's, he worked seven days a week. He took over that business from his sister in 2008, renamed it "J&R Auto Body," and moved it to Dayton Street in April 2008. After he moved the business to Dayton Street, he started taking Sundays off to go to church and spend time with his family. Fletes worked at least 12 hours a day, six days a week. On his one day off, he spent his time with his wife and children. At the time of the shooting, he had four employees at the shop. Fletes did all of the painting at the shop; his employees were "body men." He did not allow any gang activity at the shop. Fletes testified that it was impossible to avoid all contact with gang members since customers could be gang members, and Fletes had family members who were gang members.

The original auto body shop had been started by Fletes's brother, who went by the name Junior. Dayton Street was the third location for the shop.

Fletes met Villareal when Villareal came to the shop to get a repair estimate in 2008. Villareal was five or six years younger than Fletes. They became friends, and Fletes paid Villareal to do some chores around the shop. Fletes considered Villareal to be a "[r]eal good worker." The two men talked about work and family, but they never discussed gangs, crime, or guns. Fletes could tell from Villareal's tattoos that Villareal was a Sureno gang member, and he told Villareal to leave gangs behind. Fletes brought Villareal home with him, introduced Villareal to his family, and began including Villareal in his family's events. There was a room in the Navajo Drive residence where Villareal slept when he occasionally spent the night there. Sandra would help Villareal by giving him rides to and from his job.

Fletes testified that he had never seen the ammunition that had been found at his shop or at the Navajo Drive residence. Fletes also had never seen the gun parts or the handgun that were found in the Navajo Drive residence. He had no idea how those items had come to be in those locations. The gun cleaning kit belonged to Fletes's brother-in-law, who had left it there and failed to retrieve it. The Dallas Cowboys jersey was his, but it did not symbolize his association with the Sureno gang. He knew that Surenos associate with the Dallas Cowboys, but he had been "a Cowboys fan way before that." The "gangster lyrics" found in the Navajo Drive residence's garage were not produced by him; they were a relic of his teenage desire to "make music." Since he had equipment for making "[r]ap music," a couple of "rappers" "would come in and they would record, and I would make the beats. What I would do is I would break down the raps and put into series, and put beats behind everything." He produced only the "beats." He had not seen these lyrics since he had gone to prison in 2001. Fletes did not know how the envelope addressed to him had come to be in the backpack with some of the lyrics. The lyrics that bore dates demonstrated that they were from before Fletes went to prison. Fletes testified that he knew that Frank Alvarado was a Sureno gang member. Sandra testified that she went to J&R about once a week to help out. She had never seen Fletes with a gun or ammunition, nor had she ever seen any guns or ammunition at J&R or at the Navajo Drive residence.

Fletes testified that he had not possessed a firearm on January 15, 2009. He had stayed late at the shop to finish painting parts of a vehicle. Villareal, who worked about three blocks away from the shop, had called in the afternoon and asked for a ride home. Villareal arrived at the shop around 5:30 p.m. Fletes need to put 10 coats of paint on the parts he was working on. While one of the coats of paint was drying, Fletes went to the front of the shop and chatted with Villareal. As they were chatting, Fletes saw a Buick drive by "real slow" with the two male Hispanic occupants of the Buick "looking." The Buick went another 100 feet down the road and then stopped and turned around. Fletes found the Buick's actions suspicious, and he suspected that the occupants of the Buick might be gang members. He mentioned his suspicions to Villareal.

When he saw the Buick slowly returning, Fletes went back to where he had been painting in the back of the shop. He resumed painting a bumper with his paint sprayer, completed another coat, and then went back out to talk to Villareal. They talked for a while before Fletes returned to put another coat on the bumper. While he was painting the bumper, he "kind of felt a presence," "turned, and then boom," heard a gunshot. Fletes did not hear anyone say anything prior to the gunshot. He fell to his knees, looked up, and saw Pinon holding a weapon. Fletes asked Pinon "why did he shoot me," and Pinon told him " 'Shut the fuck up. Don't move.' " Fletes denied having had a gun in his hand, and he denied having seen the revolver under the Corvette. He testified that he never would have put his paint sprayer on the floor because that would be dangerous.

After he was shot by Pinon, Fletes remained hospitalized until June 2009, and he never returned to living at the Navajo Drive residence or even visited it. Sandra let a homeless woman and her three children live in the Navajo Drive residence after she moved out, which was a couple of days after January 15, 2009.

When Villareal was in jail after his January 2009 arrest, he called Fletes's home "a lot." Many calls went unanswered, and many times Villareal spoke to Sandra. Sometimes other inmates called claiming to be Villareal, and Sandra spoke to some of them also. These calls cost $10 each, and Sandra paid for "hundreds" of them. Both Sandra and Fletes deposited money into Villareal's jail account. Some of this money came from the sale of a vehicle that Fletes had sold for Villareal. Another portion of this money came from Villareal's relatives. Fletes himself put a couple of hundred dollars of his own money on Villareal's jail account. Fletes knew that Sandra had also put money on the jail accounts of other inmates at Villareal's request so that these other inmates could purchase items for Villareal.

The prosecutor cross-examined Fletes, without objection, about the incidents that Zuniga had testified about where Fletes had been contacted by law enforcement in the 1990's while in the company of Sureno gang members. Fletes admitted that his companions on those occasions had been Sureno gang members. The prosecutor also questioned Fletes about a 2008 incident when Sureno gang members were seen in front of Fletes's residence. In addition, the prosecutor asked Fletes if he had told jail officers in 2009 that he was "associated with Surenos," and Fletes responded: "It's possible. I don't recall." Fletes denied associating with or "hang[ing] out" with Sureno gang members.

The defense argued to the jury that Pinon had seen Fletes with "something" in his hand, "acted on instinct," and "shot him" by "accident." The jury acquitted both defendants of the assault counts. It returned guilty verdicts on the three possession counts and on the active participation counts and found the gang allegations to be true. Fletes admitted the prior serious felony and strike allegations. The court denied Fletes's and Villareal's new trial motions. It found "Pinon's testimony very credible." "The defendant's testimony was not credible, in the Court's evaluation." "We don't know whatever caused the jury to do what the jury did. The jury could simply have said, He didn't quite make it to the point of committing an assault." "I'm not going to try to second guess." The court also denied Fletes's request that it strike the strike.

The trial court sentenced Villareal to a two-year term for the possession count and a consecutive three-year term for the gang enhancement. It stayed sentence for the active participation count under section 654. The court imposed on Fletes a six-year doubled upper term for the possession of a firearm count, a concurrent term for the possession of ammunition count, a consecutive four-year term for the gang enhancement, and a consecutive five-year term for the serious felony enhancement. It stayed sentence for the active participation count under section 654 as to Fletes also.

This court originally issued an opinion in this case in July 2015. The California Supreme Court granted review and held the case until September 2016, when it was transferred back to this court for reconsideration. The parties subsequently submitted extensive supplemental briefing, which was not completed until late April 2018.

III. Discussion

A. Substantial Evidence Challenges

Defendants challenge the sufficiency of the evidence to support the active participation counts and the gang enhancements.

1. Standard of Review

Our standard of review is well established. " '[T]he relevant question 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. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) "[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) "A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' " (People v. Morris (1988) 46 Cal.3d 1, 21.) A trier of fact may rely on inferences to support a conviction only if those inferences are "of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt" that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 890-891.) "Evidence is sufficient to support a conviction only if it is substantial, that is, if it ' "reasonably inspires confidence" ' [citation], and is 'credible and of solid value.' " (Id. at p. 891.) "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." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)

1. Active Participation Counts

Villareal, relying on People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), contends that there was insufficient evidence that he promoted, furthered, or assisted Fletes's commission of either possession offense. He asserts that there was no evidence that he even knew Fletes possessed a weapon or ammunition let alone evidence that he promoted, furthered, or assisted Fletes in committing any of the possession offenses. Fletes makes a similar argument. He contends that there was no evidence that he knew Villareal possessed a firearm or that he promoted, furthered, or assisted Villareal in possessing a firearm.

Villareal also asserts that the prosecutor misstated the elements of the active participation offense in closing argument.

The Attorney General argues that a section 186.22, subdivision (a) offense may be established by proof that "two gang members are committing criminal activity at the same time, in the same location, and know of each other's presence." As to Villareal, he maintains that the jury could have reasonably inferred that the firearm Villareal removed from the stack of tires was jointly possessed by Villareal and Fletes because it was on Fletes's business premises. As to Fletes, he asserts that the jury could have inferred from Hoskins's testimony that both defendants put their hands on their waistbands and ran into the shop upon seeing the marked patrol car that each of them knew that the other possessed a firearm that needed to be concealed from law enforcement.

Section 186.22, subdivision (a) 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).)

"The plain meaning of section 186.22(a) requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." (Rodriguez, supra, 55 Cal.4th at p. 1132 [plurality opinion of Corrigan, J.].) "[W]ith section 186.22(a), the Legislature sought to punish gang members who acted in concert with other gang members in committing a felony regardless of whether such felony was gang-related." (Id. at p. 1138.) However, "one need not have the specific intent to promote, further, or benefit the gang to violate section 186.22(a), nor must one commit a gang related felony." (Id. at p. 1135.)

Although Rodriguez was a plurality opinion of three justices, a fourth justice concurred in the entire statutory analysis in the plurality opinion. He simply did not join in the constitutional analysis that was also discussed in the plurality opinion. A majority of the court agreed on the points that are relevant here. (See Rodriguez, supra, 55 Cal.4th at p. 1141, concurring opn. of Baxter, J. [section 186.22, subd. (a) requires "joint criminal action with other gang members."].)

Section 186.22, subdivision (a) applies only where a person "willfully promotes, furthers, or assists in any felonious criminal conduct by" gang members. As defendants correctly point out, the essential factual question is whether either of them was aware of the other's possession of a firearm. The statute requires that the conduct be "willful[]." If each defendant knew that the other possessed a firearm, the jury could reasonably infer that their unified flight from law enforcement assisted both of them in maintaining possession of those firearms. If neither of them knew that the other possessed a firearm, no such reasonable inference could be drawn even if their flight actually did provide such assistance because that assistance could not have been "willfully" provided.

The Attorney General points to nothing other than Fletes's ownership of the shop to suggest that he was aware of Villareal's possession of a firearm. He identifies no evidence that Fletes saw Villareal pull the firearm out of the stack of tires and put it behind his back, nor does he identify any evidence that Fletes saw Villareal holding his waistband as the two men ran into the shop. Similarly, the Attorney General fails to suggest that there was any evidence that Villareal saw Fletes holding his waistband as the two men fled. Since there was no other evidence regarding each defendant's awareness of the other's possession of a firearm at the time of their flight, we are compelled to find the evidence insufficient to support the active participation counts.

The jury's guilty verdicts on these counts (despite the absence of substantial evidence) are perhaps explained by the court's misleading instruction and the prosecutor's inaccurate argument concerning the key element of this offense.
The court instructed the jury that the "willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang" element could be established "either by A, directly and actively committing a felony offense; or B, aiding and abetting the felony offense." The prosecutor told the jury that "all" this count required "for both defendants, that they are Sureno gang members and that they committed a felony. They are active gang members committing felonies. That's all . . . ." "That's all this is. That's all you have to prove. That's the only element." During deliberations, the jury sent a question to the judge. " 'What is the definition of active participation in a criminal street gang?' " " 'What is "actively participated in a criminal street gang?" ' " The judge reread the instruction it had previously given. Under these circumstances, the jury's unsupported verdicts are understandable.

2. Gang Enhancements

Defendants challenge the sufficiency of the evidence to support the gang enhancements.

To prove a gang enhancement allegation, the prosecution must establish that the defendant committed the substantive 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 any criminal conduct by gang members." (§ 186.22, subd. (b)(1).)

Fletes argues that there was no evidence that he harbored the requisite specific intent. He maintains that his intent at the time of his interactions with Pinon are irrelevant because the only intent that matters is the intent he had when he first gained possession of the firearm. He claims that there was no evidence of his intent in possessing the ammunition. Villareal maintains that there was not sufficient evidence to show that he possessed the firearm with the "specific intent to benefit of [sic] the Sureno gang." He relies on a series of cases, all of which relied at least in part on the Fifth District Court of Appeal's decision in People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew).

Killebrew did not involve a gang enhancement allegation. Killebrew was convicted of conspiring to possess a handgun even though he had not been seen anywhere near the handgun. (Killebrew, supra, 103 Cal.App.4th at pp. 647-650.) The prosecution's theory was that Killebrew had been in a vehicle that was travelling with other vehicles and that someone in these vehicles possessed a handgun. An expert was permitted to testify that "when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun." (Killebrew, at p. 652.) Killebrew claimed on appeal that testimony about the "subjective knowledge and intent of each occupant in the car" should not have been admitted. (Ibid.) The Fifth District agreed. It opined that no prior case "permitted testimony that a specific individual had specific knowledge or possessed a specific intent," although the court acknowledged that a court had previously upheld the admission of similar opinion testimony "framed in terms of gangs in general, not a specific defendant's subjective expectation." (Killebrew, at p. 658.) Because the expert in Killebrew had, in the Fifth District's view, explicitly testified that specific individuals "knew" of the presence of the guns and "jointly possessed" them, his testimony was "an improper opinion on the ultimate issue and should have been excluded." (Ibid.)

The holding in Killebrew was subsequently limited by the California Supreme Court's decision in People v. Vang (2011) 52 Cal.4th 1038 (Vang). In Vang, the court held that an expert may offer an opinion regarding intent in support of a gang enhancement allegation so long as the expert's response to a hypothetical question regarding intent is based on the facts of the case. (Vang, at p. 1046.)

In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), like the case before us and unlike Killebrew, concerned the sufficiency of the evidence to support the specific intent element of a gang enhancement allegation. Frank was stopped by police after he ran a red light on his bicycle. He gave a false name, and the officer found a concealed knife, a bindle of methamphetamine, and a red bandana in Frank's possession. (Frank S., at p. 1195.) Frank admitted that he carried the knife to protect himself against " 'Southerners,' " as he was allied with northern street gangs. (Ibid.) The gang expert was permitted to testify that Frank had possessed the knife to protect himself, and she opined that gang members use knives to protect themselves from rival gang members and to assault rival gang members. (Frank S., at pp. 1195-1196.) On appeal, Frank challenged the sufficiency of the evidence to support the specific intent element of the gang enhancement. (Frank S., at p. 1196.) Relying on Killebrew, the Fifth District concluded that the expert should not have been permitted to testify "that a specific individual possessed a specific intent." (Frank S., at p. 1197.) As the expert's testimony was, in the Fifth District's view, "the only evidence" of Frank's intent, the true finding on the enhancement allegation was not supported by substantial evidence. (Frank S., at pp. 1197-1199.)

People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), like Frank S., was a Fifth District case concerning the sufficiency of the evidence to support the specific intent element of gang enhancement allegations. Ramon, a gang member, was stopped by police in his gang's territory while driving a stolen truck. A fellow gang member was his passenger, and an unregistered firearm was found under the driver's seat. (Ramon, at pp. 846-847, 849.) The prosecution's gang expert testified at trial that the stolen truck and the unregistered firearm could be used to commit gang crimes. (Ramon, at p. 847.) He offered an opinion that possession of a gun and driving of a stolen truck in gang territory therefore benefitted the gang and that the perpetrators of these offenses would intend to promote the gang. (Ramon, at p. 848.) The expert testified that stolen trucks and firearms were "tools" that the gang needed to commit other crimes. (Ibid.)

Ramon argued on appeal that the facts of his offenses plus the fact of his gang membership and presence in gang territory were insufficient to support the expert's opinion on benefit and intent. (Ramon, supra, 175 Cal.App.4th at pp. 849-850.) The Fifth District, relying on Killebrew and Frank S., agreed. (Ramon, at p. 851.) "These facts, standing alone, are not adequate to establish that Ramon committed the crime with the specific intent to promote, further, or assist criminal conduct by gang members. While Ramon may have been acting with this specific intent, there is nothing in the record that would permit the People's expert to reach this conclusion." (Ibid.) "The facts on which [the gang expert] based his testimony were insufficient to permit him to construct an opinion about Ramon's specific intent in this case. His opinion, therefore, cannot constitute substantial evidence to support the jury's finding on the gang enhancement." (Ramon, at p. 852.) "While the People's expert's opinion certainly was one possibility, it was not the only possibility. And, as stated ante, a mere possibility is not sufficient to support a verdict." (Ramon, at p. 853.)

People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa) was a Fourth District case in which Ochoa challenged the sufficiency of the evidence to support the gang benefit element of the gang enhancement allegations attached to carjacking and felon in possession of a firearm counts. (Ochoa, at p. 652.) Ochoa, a gang member, had acted alone in committing a carjacking with a shotgun. (Ochoa, at p. 653.) The offense had not occurred in Ochoa's gang's territory. (Ochoa, at p. 662.) A divided Fourth District found the evidence insufficient to sustain the benefit element of the gang enhancements. "[N]othing in the circumstances of the instant offenses sustain[s] the expert witness's inference that they were gang related." (Ochoa, at pp. 661-662.) "[The gang expert's testimony] was based solely on speculation, not evidence. An appellate court cannot affirm a conviction based on speculation, conjecture, guesswork, or supposition." (Ochoa, at p. 663.) On the other hand, the Ochoa court disagreed with the Ramon court's assessment of the evidence in Ramon and said that it would have found that evidence sufficient to support the specific intent element. (Ochoa, at p. 661, fn. 6.)

In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.) was a First District case in which Daniel challenged the sufficiency of the evidence to support the specific intent element of the gang enhancement allegation. Daniel and three other young men, all wearing red, went into a store. Two of Daniel's companions were gang members, and he was an "affiliate." After his companions left the store, Daniel took a bottle of liquor and left without paying for it. A store employee confronted him, and Daniel broke the bottle and attacked the employee with the broken bottle. He then escaped in a vehicle with the other young men. (Daniel C., at pp. 1353-1355, 1362.) A gang expert testified that the robbery was "gang-related" based on gang membership, the coordinated actions of the young men, the fact that they were wearing red, and the fact that crowbars and a baseball bat were found in the vehicle. (Daniel C., at p. 1356.) The First District found the evidence insufficient to support the specific intent element of the gang enhancement allegation because there was no evidence that Daniel had acted "in concert" with his companions. Consequently, as Daniel was not himself a gang member, he could not have intended to assist "gang members" in committing the robbery (which the First District concluded he perpetrated alone), and the specific intent element therefore lacked evidentiary support. (Daniel C., at pp. 1361-1362.)

Almost all of these cases may be distinguished from the case before us. Killebrew had nothing to do with gang enhancement allegations and was founded on the inadmissibility of evidence rather than the insufficiency of the evidence. The opinion in Frank S., which relied heavily on Killebrew, also seemed to turn on the alleged inadmissibility of the expert's testimony due to the expert inappropriately testifying about Frank's intent rather than in response to a hypothetical. The holding in Daniel C. was based on the court's finding that Daniel was not a gang member and therefore, because it found that he acted alone, could not have intended to assist gang members.

Ochoa and Ramon are not as readily distinguished. This court distinguished Ramon in People v. Gonzales (2015) 232 Cal.App.4th 1449 (Gonzales), where the defendant drove his fellow Norteno gang members to a gang hangout and knew that one of them was carrying a loaded handgun. The defendant argued that there was insufficient evidence to support the gang benefit element of the gang enhancement attached to the firearm count and relied on Ramon, but we rejected his argument because the gang expert's testimony regarding the gang benefit element had a substantial factual basis. "The gang expert here, unlike the expert in People v. Ramon, did not premise his opinion solely on his understanding that the stolen truck and the firearm could be used by the gang to commit crimes. His opinion had a much more substantial basis. One, defendant's gang's primary activities included carrying firearms and, in fact, revolved around firearms. Two, when the firearm was found in John Doe One's possession in defendant's vehicle, defendant was transporting both John Doe One and a third member of the same gang to a location where that gang hung out. Three, the firearm was stolen. The gang expert testified that stolen firearms are particularly useful to a gang because such firearms cannot be traced back to their owners. It might be true that individually none of these facts would have been sufficient to support the expert's opinion, but the combination of these facts was an adequate predicate for the gang expert's opinion that the substantive offense was committed to benefit defendant's gang." (Gonzales, at pp. 1466-1467.)

In People v. Rios (2013) 222 Cal.App.4th 542 (Rios), this court found insufficient evidence to support the specific intent element of a gang enhancement attached to a firearm count. The defendant, a Norteno gang member, had been stopped by the police in Salinas while he was driving a stolen vehicle. A gun was found in the vehicle along with Norteno gang paraphernalia. (Rios, at pp. 546-548.) A gang expert testified that "possession of firearms" was one of the "primary criminal activities" of the Norteno gang in Salinas. (Rios, at pp. 551, 574.) However, this court concluded that the gang expert's testimony regarding specific intent in response to a hypothetical was based on nothing more than the facts that "(1) the person was a gang member and (2) he possessed a gun." (Rios, at pp. 573-574.) Because the defendant was acting alone, rather than "in concert with others," these facts were insufficient to support the expert's opinion. (Ibid.)

Ramon and Rios both concerned the specific intent element. Ochoa and Gonzales both concerned the gang benefit element. Ochoa and Rios each involved a lone defendant acting alone, while Ramon and Gonzales involved defendants who were accompanied by fellow gang members. Here, the evidence was sufficient to support a finding that Fletes and Villareal were both gang members and were together when each possessed a firearm. In that respect, this case is more like Ramon and Gonzales than Ochoa and Rios.

The Attorney General argues that the evidence was sufficient to support the gang enhancements as to the firearm counts because the jury could have reasonably inferred that each defendant knew that the other possessed a firearm, "intended to assist the other in maintaining possession of the firearm," and took flight to "distract" their pursuers and provide each other with the opportunity to retain possession of the firearm. As we have already discussed in connection with the active participation counts, the prosecution presented no evidence that each defendant knew the other possessed a firearm at the time they fled. Thus, this argument lacks its premise.

The Attorney General's argument as to the ammunition count is even less persuasive. He argues: "Here, the jury could reasonably conclude from the fact that the ammunition did not fit Fletes's gun that it was not intended for purely personal use. The jury could also reasonably conclude that if a Sureno has ammunition in his possession, it could assist other Surenos in committing criminal acts." This is precisely the argument that was rejected by this court in Rios. A person's status as a gang member does not by itself establish the validity of a gang enhancement as to his possession of some item that "could" be used by a gang member to commit criminal acts.

In Gonzales, this court distinguished Ramon on the ground that there was additional evidence beyond the Gonzales defendant's gang membership that combined to provide a substantial basis for the gang expert's opinions. Here too, other evidence combined with defendants' gang membership provided a substantial basis for Zuniga's opinions. Zuniga expressed his opinions in response to hypothetical questions based on the prosecution's theory of the case as to whether two gang members who possessed loaded guns and ammunition did so "for the benefit or in association with a criminal street gang" and with the intent "to promote, further, or assist criminal conduct by a member of the Sureno criminal street gang." He testified that such possession "was done for the benefit and in association with a Sureno criminal street gang," and "with the specific intent to promote and to further the Sureno criminal street gang." Zuniga testified that, under these circumstances, the Sureno gang members "are working in concert to commit a crime to possess the firearms" because "a firearm is a tool of the trade for gang members." "It also benefits the gang -- having these Sureno gang members taking the opportunity and possessing these firearms, it benefits that gang's reputation."

Although Zuniga did not testify that possession of firearms or ammunition was one of the Sureno gang's primary activities, he did highlight the fact that Fletes and Villareal had previously possessed handguns and ammunition for the benefit of the Sureno gang. After identifying the Sureno gang's activities as "murder, attempted murder, carjackings, dope sales," and assaults on police officers, he observed that many of these crimes utilize firearms, which he explained were "tools of the trade" that were "commonly" used by Sureno gang members "to commit violent acts." Zuniga described how Sureno gang members possess firearms that are not registered to them and therefore can be passed "from one gang member to another." Finally, Zuniga testified that Sureno gang members disrespect law enforcement, and "consider police officers as a hurdle" and "a roadblock to their success."

" 'Expert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support the Penal Code section 186.22, subdivision (b)(1), gang enhancement." (Vang, supra, 52 Cal.4th at p. 1048.) Here, as in Gonzales, there are three facts that, combined with defendants' gang membership, support the expert's opinion that the firearm offenses were committed for the benefit of the gang. First, Zuniga testified that firearms provide a critical tool that enables Sureno gang members to engage in their gang-reputation-enhancing criminal activities. Second, the firearms possessed by defendants were precisely the type of firearms that gang members may freely pass from one member to another because the firearms were not registered to Sureno gang members. Third, defendants' flight from law enforcement while possessing these firearms was consistent with Sureno gang members' attitude toward law enforcement and reinforced the Sureno gang's reputation for disrespecting law enforcement. We conclude that substantial evidence supports the gang benefit element of the gang enhancements attached to the firearm possession counts.

The specific intent element of the gang enhancements attached to the firearm possession counts was also supported by substantial evidence. The specific intent requirement "applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (People v. Albillar (2010) 51 Cal.4th 47, 66.) The intent to further criminal conduct also is not limited to gang-related conduct but may be any criminal conduct by gang members. (Id. at p. 67.) Since there was substantial evidence that both Fletes and Villareal were gang members, and their possession of firearms was criminal conduct (due to their prior felony convictions), a jury could reasonably infer that they retained possession of the firearms with the intent to further their continued possession of those firearms. We find that substantial evidence supports the specific intent element of the gang enhancements attached to the firearm possession counts.

The same analysis does not apply to the gang enhancement attached to Fletes's possession of the ammunition found in the shop's filing cabinet. This ammunition did not fit either of the firearms possessed by defendants, and Fletes's flight from law enforcement bore no apparent relationship to this ammunition. Other than Fletes's gang membership, there was no evidence that Fletes's possession of this ammunition benefitted the Sureno gang, and certainly no evidence that his possession of it was in association with or at the direction of the Sureno gang. Thus, we find insufficient evidence to support the gang enhancement attached to the ammunition possession count.

B. Hearsay Basis Evidence

Defendants contend that the trial court prejudicially erred in permitting gang expert Zuniga to testify to case-specific testimonial hearsay.

1. Background

The prosecutor originally told the court that he intended to offer evidence of 11 predicate offenses "through the testimony of the gang expert . . . Zuniga, and through introduction of certified copies of the convictions obtained for the predicate offenses." The defense argued that "11 is too much" and that the prosecution should be limited to no more than five predicate offenses. Villareal's trial counsel noted that Villareal had always admitted that he was a gang member, so this evidence was "just cumulative and unnecessary . . . ." Fletes's trial counsel observed that Fletes "is going to admit that he was once a gang member." The prosecutor later told the court that he planned to use four predicates that did not involve defendants, two that involved Villareal, and one that involved Fletes. The court ruled that the seven predicates that the prosecutor proposed to introduce were a reasonable number of predicates and that they were "relevant and related."

The prosecutor sought admission for impeachment purposes of "acts which consist of moral turpitude." He identified the evidence admissible for impeachment of Fletes as Fletes' possession of stolen property, including a stolen firearm in 1998. As to Villareal, the prosecutor identified the impeachment evidence as (a) Villareal's act of exposing himself and masturbating in front of a neighbor and her child in 2007, (b) a 2004 assault with a deadly weapon, and (c) Villareal's 2011 jail assault/attempted murder. The court ruled that evidence of Villareal's 2007 indecent exposure would not be admissible as impeachment evidence if Villareal testified. Villareal did not testify at trial.

The prosecutor sought an in limine ruling on the admissibility of hearsay basis testimony by the gang expert. He argued: "The gang expert may rely upon hearsay and otherwise inadmissible evidence in forming his or her opinions [and] . . . may state the basis of the opinion." The hearsay basis evidence that he sought permission to have the gang expert testify to included the facts of offenses committed by gang members, admissions of gang membership or affiliation, and information from police reports. He asserted that the Sixth Amendment did not bar the gang expert from giving such hearsay testimony. The prosecutor noted that "the police report" about Villareal's 2004 conviction was "exactly what the expert is going to be relying on."

At the beginning of the hearings on in limine motions, the court stated: "For purposes of these in limine motions, the Court's rulings are all tentative. They are evidentiary rulings that necessarily require an analysis of the evidence at the time that they're offered." Before opening statements, defendants renewed their evidentiary objections. The court stated that "the rulings stand that have previously been made, with the provision that they are all in limine and not final and can be changed at any point in time" if something "alter[s] the calculations previously made."

The prosecutor also asserted that "Gang Evidence" was admissible under Evidence Code section 1101, subdivision (b) to show "motive [and] intent." The court was skeptical of the prosecutor's claim that prior gun possession convictions were admissible under Evidence Code section 1101, subdivision (b). The prosecutor argued that the "common scheme or plan is basically being gang members unlawfully possessing guns." The court initially deferred any ruling on that issue, and it apparently never explicitly ruled on it. However, an instruction it gave to the jury at the end of the trial suggested that it had credited the prosecutor's claim that gang evidence was admissible to show motive and intent.

Defendants moved in limine to exclude "proposed expert opinion testimony that is not based on the personal knowledge and observations of the expert but rather primarily on the out-of-court statements of others" including "what others told him about a particular gang or what he or she has read in law enforcement reports written by others." They asserted that the Sixth Amendment prohibited the gang expert from testifying to hearsay statements he had relied upon. Villareal's trial counsel objected to admission of evidence of Villareal's 2011 jail assault on both Evidence Code section 352 grounds and on Sixth Amendment and hearsay grounds. He pointed out that the only evidence of the 2011 jail assault was "a testimonial hearsay statement."

Each defendant joined the other's objections.

The court largely overruled the defense objections to any evidence that the gang expert would be relying upon, and it reiterated this ruling at trial.

The court did require sanitization of a 1995 incident during which Fletes had discharged a firearm. The court also required evidence of the jail assault to be sanitized so that it was "limited" to "assault with a deadly weapon and no details as to the violent specifics."

The defense objected to the prosecutor's proposal to introduce "Pre-Booking Sheets" to show defendants' responses to "questions about gang membership for purposes of jail classification." The prosecutor claimed that the "Pre-Booking Sheets for the defendants" were admissible as business records under Evidence Code section 1271. He also asserted that "Monterey County Sheriff's Department and Salinas Police Department law enforcement officers will testify about" these documents and how "they were created." He claimed that such evidence was "exempt from the laws and safeguards of Miranda." The prosecutor based this claim on "People v. Gomez, a 2011 case, which addresses this subject." He argued that "[t]hese types of statements are admissible and Miranda does not apply."

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

In People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), the California Supreme Court rejected the holding in People v. Gomez (2011) 192 Cal.App.4th 609 and held that "gang affiliation questions" are not exempt from Miranda. (Elizalde, at pp. 538-539.)

Defendants contested the prosecutor's claims. Fletes's trial counsel argued: "I don't think that the argument that the Prosecution posits here is really sufficient to get around Miranda, because it is incriminatory and he has been read his rights and they are violating that by doing that." Villareal objected "under Miranda and Crawford versus Washington."

Crawford v. Washington (2004) 541 U.S. 36.

The court rejected the defense objections, ruling that, unless there was "a different factual setting" than usual, "there's a case on point, and Miranda does not apply, period." The defense reiterated its objections at trial, and the objections were overruled.

Fletes also objected in limine on the grounds that it was "irrelevant" and "remote" to the admission of evidence that "upon his intake at North Kern State Prison" in 2001 he had "admitted being a Sureno gang member." The court overruled his objection. "I can't think of anything that's more reliable than someone being asked, Do you want to die or do you want to live, because that's what it is." Fletes also objected on "foundational" grounds. The court deferred that objection.

At trial, a law enforcement officer testified that he was present when Villareal was booked. Both defendants objected on Fifth Amendment grounds, but the court overruled the objections. The officer testified that Villareal was asked about his gang affiliations, and he replied: " 'Yes. I'm a Sureno, have been since I was about 11 years-old.' " As to Fletes, Zuniga testified, based on a "classification form" he said he had reviewed, that Fletes had identified himself as a "Southerner" on January 27, 2009.

Defendants also asked the court in limine to exclude under Evidence Code section 352: (1) evidence of Fletes's gang affiliation and his prior criminal cases, (2) evidence of both defendants' prior law enforcement contacts, and (3) any evidence that Surenos were connected to the Mexican Mafia. Defendants renewed their evidentiary objections at trial. The court largely overruled the defense's Evidence Code section 352 objections. It explicitly overruled the defense objection to any testimony by Zuniga referencing the Mexican Mafia.

The prosecutor's opening statement mentioned that Pinon knew Villareal and "kn[ew] he's a Sureno gang member." He asserted that "Carlos Fletes and Jose Villareal are gang members and they're convicted felons." Villareal did not challenge his gang member status at trial. In his opening statement, Villareal's trial counsel noted: "Villarreal, who, we said from the very beginning of this case, will be associated with gangs. Just look at him." He claimed that Pinon had assumed Villareal had a gun "because this is a Sureno guy that [Pinon had] known . . . ." "You're going to hear that Jose Villareal is a gangster . . . ." Fletes's trial counsel conceded in his opening statement that Fletes had been "involved in gangs" and "a gang member" prior to 2003, but he asserted that the evidence would show that Fletes "put that gang life behind him" in 2003.

2. Zuniga's Trial Testimony

a. General Background Information

Zuniga testified at trial that his "gang experience first started in 2005," which was when he became a police officer. Zuniga provided background information about criminal street gangs in general and the Sureno gang specifically. In the course of this description, he mentioned that the Sureno gang was associated with the Mexican Mafia. "The supreme Sureno gang, being the Mexican Mafia, is one of the oldest prison gangs." He asserted that the Surenos "still show some allegiance to . . . the Mexican Mafia." Zuniga noted that La Posada Trece is a Sureno gang that "is one of our oldest gangs here in Salinas." Zuniga testified that he had "seen" Surenos commit violent crimes "such as murder, attempted murder, carjackings, [and] dope sales . . . ." Zuniga observed that his understanding of the Sureno gang was "based on" his "experience" and what he had "heard."

b. Predicates

To establish that the Sureno gang qualified as a criminal street gang, Zuniga identified seven "predicate" offenses that he asserted had been committed by Sureno gang members. He testified about the facts of each of these offenses. The first predicate Zuniga described was Ivan Rubio's commission of a June 2006 offense of "assault on a peace officer, brandishing a firearm at a peace officer." Zuniga testified that Rubio had been convicted of "exhibiting a firearm," and he stated he was "familiar with" Rubio, who he described as "a known Sureno gang member" in Salinas. His testimony referenced exhibit 276. Exhibit 276 was a certified court record that identified Rubio's conviction as exhibiting a firearm and established that it was accompanied by a "Sureno" gang enhancement.

The second predicate Zuniga described was Carlos Osuna's June 2006 offense of assault with a firearm on a peace officer. Zuniga testified that he knew who Osuna was and that Osuna was a "documented Sureno gang member" in Salinas. Zuniga referenced exhibit 277, which established that Osuna had been convicted of that offense and that the conviction had been accompanied by a Sureno gang enhancement.

The third predicate described by Zuniga was a January 2009 murder with gang enhancements committed by Valentin Rivas and Benjamin Carrillo. This was the crime associated with the green minivan that had prompted Pinon to go to Fletes's shop in the first place. Zuniga testified that he knew Rivas and Carrillo were Sureno gang members because he had testified as the gang expert at their trial. Zuniga, referencing exhibit 275, testified that Rivas and Carrillo were "La Posada Trece" Sureno gang members. Zuniga also noted that Rivas and Carrillo had been in a "green minivan" and had fired multiple rounds at Nortenos in another vehicle in the commission of the murder. Exhibit 275 established that Rivas and Carrillo had been convicted of murder and shooting at an occupied vehicle, and that these convictions were accompanied by Sureno gang enhancements.

The remaining predicate offense described by Zuniga that was not committed by either defendant was a July 2004 evading the police and assault with a firearm committed by Jose Monsivais and Marcos Amparo, whom Zuniga described as "[b]oth known Sureno gang members." Zuniga, referencing exhibit 278, testified that Monsivais and Ampara had tried to evade the police in a stolen car and had fired a weapon at the pursuing police officers. Exhibit 278 established that Monsivais and Amparo had been convicted of attempted murder, robbery, assault with a firearm, and possession of ammunition with Sureno gang enhancements for those offenses.

Zuniga also testified about three predicates committed by defendants. One of these was Villareal's December 2003 conviction for possession of a loaded firearm, and another was Villareal's February 2004 conviction for assault with a deadly weapon. The prosecution introduced certified court documents establishing the nature of both of these convictions. Exhibit 279 established that Villareal had been convicted of assault with a deadly weapon in 2004. A charged gang enhancement was neither admitted nor found true. Exhibit 280 established that Villareal had been convicted in 2003 of a concealed firearm on his person offense that applied only to a gang member.

The final predicate offense described by Zuniga was Fletes's December 2001 possession of a firearm by a felon with a gang enhancement. Exhibit 281 established that Fletes had been convicted in 2001 of a felon in possession of a firearm offense with a Sureno gang enhancement. Zuniga testified that Fletes had been found with a gun in a vehicle with another man, whom Zuniga described as "a documented Sureno gang member" in Salinas.

Based on the predicates and his "knowledge and experience," Zuniga expressed the opinion that the Sureno gang had "engaged in a pattern of criminal activity" and was a criminal street gang under section 186.22.

c. Gang Opinions

Zuniga described what he looked at in making gang determinations. "We look at prior contacts with law enforcement," "this individual's personal information," "tattoos," "any admissions that the individual may have given, and again any and all prior gang-related contacts." After Zuniga identified the basis for his opinions, the prosecutor posed hypothetical questions to Zuniga based on the January 2009 incident, and Zuniga testified that the possession offenses had been committed for the benefit of or in association with the Sureno gang and had been committed with the specific intent to promote, further, or assist in criminal conduct by a Sureno gang member and the Sureno gang.

i. Fletes

Zuniga described the basis for his opinions about Fletes. He noted that Fletes had an "Aztec warrior" tattoo on his chest, but this tattoo was not specific to Sureno gang members, as it was also associated with Norteno gang members. Zuniga considered it to be an "admission" by Fletes that Fletes, "upon being transported to county jail in 2009, after this incident had occurred, had stated to deputies that he was a Southerner associate." He also considered to be an admission by Fletes that "he told intake deputies" in 2002 when he "was sentenced to" prison "that he was a La Posada Trece Sureno gang member." No independent evidence of either of these "admission[s]" was introduced at trial.

Zuniga explained that the Monterey County jail is "segregated" so that Surenos are not incarcerated with Nortenos. This is accomplished by "intake deputies" asking inmates questions to determine whether they have "any gang affiliation."

Zuniga considered gang-related attire (the Dallas Cowboys jersey) that had been found in Fletes's home. He considered the letters from Alvarado to Fletes that were found in Fletes's bedroom and kitchen because Alvarado was, according to Zuniga, "a documented Sureno gang member" from Salinas incarcerated in state prison for attempted murder when the letter was written. Zuniga also considered a third letter, which was found in Fletes's bedroom, but was from a different person, was addressed to Villareal, and contained Sureno gang symbols. Zuniga considered the fact that a loaded firearm and a loaded magazine had been found in Fletes's house, albeit in a bedroom used by Villareal. Zuniga also considered the fact that a bag of ammunition had been found in a kitchen cabinet, another bag of ammunition had been found in the kitchen "right next to" a medicine bottle with Fletes's name on it and one of the letters from Alvarado, and a gun cleaning kit and another magazine were found in Fletes's garage. He also considered the "gang lyrics" found in Fletes's garage that expressed "C-dog['s]" hatred for Nortenos. Zuniga found it notable that some of these lyrics identified the author as "Carlitos," and he testified that some inmates who spoke with Fletes during recorded telephone conversations from the jail had referred to him as "Carlitos." The lyrics were filled with descriptions of violence and references to guns and murder. A piece of paper with the lyrics was "signed 'Mr. Carlos Fletes' " and contained the number "1-3." There was no indication of when the lyrics had been written. The backpack in which some of the lyrics were found also contained bullets. With the exception of Zuniga's description of Alvarado, all of these considerations were based on independently introduced evidence. Zuniga also considered the fact that guns and ammunition had been found at Fletes's shop after the January 2009 shooting.

The defense objected to the admission of the gang lyrics, but the court overruled the objection.

Zuniga provided extensive testimony (over objection) about Fletes's "law enforcement contacts" based on his "reading of the police report[s]." He described numerous incidents involving Fletes, and he did not purport to have any personal knowledge of any of these incidents. One was a 1995 incident in which a Norteno gang member pointed an assault rifle at Fletes while yelling the name of a Norteno gang. A second one was an August 1995 incident where Fletes was found with several Sureno gang members at the scene of a shooting, and one of them had a bullet in his pocket. A third one was that same month when Fletes was found in a park with Sureno gang members after a Norteno shot at them. A fourth one was also that month where Fletes was involved in a shooting of a Sureno gang member, and he allegedly told the police that he disposed of the gun. A fifth incident was in September 1996, when Fletes was with two Sureno gang members and Fletes was shot by a Norteno gang member. A sixth incident was a June 1997 traffic stop of a vehicle Fletes was driving. His passenger was a Sureno gang member who possessed drugs; Fletes was cited for lacking a license. A seventh contact was in September 1997 when Fletes was seen with Sureno gang members who were selling drugs. An eighth event occurred in December 1997 when Fletes was contacted by police in the company of a Sureno gang member. The ninth one was a February 1998 contact during which Fletes was wearing gang attire. A 10th one was an April 1998 traffic stop of Fletes and a Sureno gang member, both of whom were arrested for violating probation.

An 11th one was a November 1998 police search of Fletes's home and workplace during which police found a stolen firearm in his bedroom. Fletes was found at his workplace with two Sureno gang members, along with drugs and firearms. He was convicted of possessing the stolen firearm and stolen cell phones. The 12th and 13th events were in July 1999 and September 1999 where Fletes was found wearing gang attire. The 14th event was in November 2001, which was also one of the predicates. Fletes and a Sureno gang member were found in a vehicle with two stolen firearms, magazines, and ammunition. The 15th one was Fletes's parole in July 2003 with "gang terms." The 16th event was a January 2005 traffic accident during which a vehicle registered to Fletes was being driven by a Sureno gang member. The 17th incident was the March 2008 murder of a Sureno gang member in front of Fletes's place of business (before he moved it to Dayton Street). With the exception of the exhibit showing the 2001 predicate conviction, no independent evidence was introduced to support any of this testimony about Fletes's prior law enforcement contacts.

Zuniga also testified about what he described as over 200 telephone calls that Villareal had made while in jail to Fletes's telephone number. The recipient of the jail telephone calls has to pay for the call by creating an account and putting money in it. Each call generally costs about $10. Villareal made about 200 phone calls to Fletes's number. These calls were accepted by Fletes, Fletes's wife, or Fletes's sister. Fletes sometimes handed the phone to other Sureno gang members so that they could talk to Villareal. Most of the time it was Fletes talking to Villareal. During these calls, Villareal repeatedly asked Fletes "for money to be placed on his books" so that he could buy things at the jail store. And Fletes granted these requests regularly. At least 20 other inmates in the Sureno jail pod also called Fletes, sometimes to relay requests from Villareal and other times to ask Fletes for money. Villareal told Fletes that he shared the money with other Sureno inmates, and he asked Fletes to put money on the books for certain other Sureno inmates, including two active La Posada Trece gang members. During one conversation between Villareal and Fletes, Fletes told Villareal that "All you got to say is I don't know, I don't remember, or I don't recall." In addition, Zuniga testified that Fletes's brother was a Sureno gang member who had been sent to prison. He also testified over objection that the Sureno gang member shooters in a January 12, 2009 driveby shooting (the Rivas/Carrillo predicate offense) had been near Fletes's place of business after the shooting. Zuniga based his conclusion that Fletes was an "active" Sureno gang member in January 2009 on all of this information.

No independent evidence was introduced to support Zuniga's testimony that the people talking to Villareal were Sureno gang members.

Fletes and his wife testified that they knew Juan Ortiz, one of the other inmates in the Sureno pod. Ortiz was Fletes's "ex brother-in-law," and Ortiz's daughter was Fletes's niece.

Again, there was no independent evidence to support Zuniga's testimony about the gang membership status of these other inmates.

ii. Villareal

Zuniga described the basis for his opinions about Villareal. He testified about eight events involving Villareal that Zuniga believed connected Villareal to the Sureno gang. In November 2002, Villareal assaulted a Norteno gang member after they exchanged gang putdowns and claims. Villareal admitted at that time that he was a Sureno gang member from Long Beach. In March 2003, Villareal was in a vehicle with three Sureno gang members and a sawed-off shotgun. Villareal told the police that he was a Sureno gang member and had been since age 12. In September 2003, Villareal was stopped by police with a loaded handgun in his waistband. In February 2004, Villareal assaulted a fellow inmate with a "loaded sock." The victim said the assault was because he was a "Sureno dropout." In July 2005, Villareal was in a Norteno gang area when he was the target of a shooting. In August 2007, Villareal was in a vehicle with several Sureno gang members when the vehicle was stopped by the police. Villareal admitted at that time that he was a Sureno gang member from Long Beach. In September 2007, Villareal was again in a vehicle with a Sureno gang member. In January 2009, when Villareal was put in jail, he said he was a Sureno gang member. He was housed in a Sureno jail housing pod. With the exception of the predicate offenses, no independent admissible evidence was admitted to support Zuniga's testimony about Villareal's prior gang contacts.

Zuniga also considered other circumstances regarding Villareal. Villareal had a gang moniker of "Travieso," which meant " 'trouble,' " and his body was covered in Sureno gang tattoos. The number "13" was tattooed on the back of his head. He had a large "SUR" tattoo on his chest along with "Califas," "Sureno," and "Longo" tattoos on his neck and chest. Above these tattoos was a tattoo saying " 'to live for, to die for.' " Zuniga understood these tattoos to evidence Villareal's association with a Long Beach Sureno gang called "East Side Longo." Other tattoos on Villareal's body were "ESL," for East Side Longos, "BV" for Barrio Viejo, another Long Beach Sureno gang, "Long" and "Beach," "213," the Long Beach area code, and "Longos."

Zuniga considered that a loaded gun and a loaded magazine were found in Villareal's bedroom in Fletes's home after the January 2009 incident. While in jail, Villareal was visited by Ivan Villa, whom Zuniga described as a Sureno gang member and "a high ranking La Posada Treces gang member . . . ." Fletes visited Villareal three times in jail between February 2009 and November 2010. In June 2011, Villareal and a Sureno gang member assaulted a fellow inmate with a shank. Zuniga concluded that, based on Villareal's "contacts with law enforcement" and his "tattoos and admissions," Villareal was an active Sureno gang member at the time of the January 2009 shooting.

Zuniga admitted that he had had no personal contact with Villa, but "Villa is well-documented within the Salinas Police Department . . . ." Sandra testified that she knew Ivan Villa because he had purchased a vehicle from them. She did not know Villa personally. Fletes also testified that he knew Villa. There was no independent evidence of Villa's gang membership status.

No independent evidence was admitted of the jail assault.

3. Closing Arguments

During closing argument, the prosecutor relied on Fletes's 2009 statement to correctional officers at the jail. "Fletes, when they bring him in, he says, I associate with Surenos. No hesitation." He also argued: "They're involved with Surenos. They're involved with Surenos who commit murders. They're involved with Valentin Rivas and Benjamin Carrillo. It's clear. They're involved with Ivan Villa, who Bobby Zuniga testified is a shot caller for the La Posada Trece gang." He also argued that defendants' association with firearms showed that they were Sureno gang members. "The guns and ammo at work, the guns and ammo at home. That's the life of a Sureno gang member." The prosecutor argued: "His [(Fletes's)] family is involved with the Surenos. Not only he puts money on the books, his wife puts money on the books, his sister puts money on the books. It's a family affair." The prosecutor argued that the jury should rely on Zuniga's opinion that defendants were gang members. He asserted that Zuniga's background was "the type of background who you can rely on in coming to the conclusion as to who's a gang member and who's not." The prosecutor also argued that Fletes had not left fingerprints on the revolver because, when "[o]ne of those magazines back in 2001 had his fingerprint on it," Fletes had learned that he needed to wear gloves when handling a gun.

Villareal's trial counsel argued to the jury that Villareal had not engaged in any gang activity between October 2007 and January 2009. He contended that Villareal had chosen to "change his life," although "he fell back into it" after being arrested on the January 2009 charges.

Fletes's trial counsel argued that Fletes had been a gang member when he went to prison, but he decided to "stay away from gangs" after that. When Fletes was on parole, he had "[z]ero contact with any gangs . . . ." Fletes's trial counsel argued that Fletes had given Villareal a job to give "him an opportunity to get away from the gang life . . . ." He also argued that the bullets in Fletes' home did not belong to Fletes and that the gang lyrics were from 2001, before Fletes went to prison and disassociated himself from gangs. Fletes's trial counsel observed that the "mountain of gang evidence . . . proves what Mr. Fletes admits, that he was a gang member."

In rebuttal argument, the prosecutor asserted: "And it's clear that the defendants are felons and Surenos. They possessed those guns and ammo, they had the propensity to possess and use those guns . . . ." He argued that Fletes "is a Sureno through and through. It is a family affair. He grew up with Surenos in his house. His sister, his brother, hanging out, all of his friends. That's his nature. That's who he is. [¶] Look at this family now. His wife and sister are going to the jail, putting money on Sureno's books. He's going to the jail, putting money on the Surenos books. He got back into it, because that's who he is. [¶] Look at his friends. Villareal . . . . Look at the people who's calling him. Ivan Villa, Rivas, and Carrillo."

4. Instructions

After Zuniga had described the predicates and Fletes's police contacts, the court instructed the jury: "When the officer talks about the incidents that he's basing his opinion on, the information that he receives from reports, from other people, from other officers and that sort of thing, it is -- it's technically hearsay. So, it's not being offered for the truth of the matter asserted in the statements that he receives from reports, other people, and that sort of thing. It is rather received only for the purpose of helping you understand on what basis he reached his opinion. [¶] So, you can only use it for that purpose. You can't use it for the purpose of concluding that the facts that were stated to him were true, just this is what was used in assessing his opinion." The court subsequently repeated that this testimony "is not offered, not for one moment, to prove the truth of the information" but "only so that you understand what the officer is basing his opinion on."

However, when the court later instructed the jury on expert testimony, it told the jury: "You must decide whether information on which the expert relied was true and accurate." The court also told the jury: "Experts testified that in reaching their conclusions as an expert witness, they considered statements made by other people. You may consider those statements only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statements is true." The court further instructed the jury: "You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements charged; [¶] OR [¶] The defendant had a motive to commit the crimes charged. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."

Villareal's trial counsel had previously challenged the efficacy of jury instructions regarding the basis for the expert's testimony. "[T]he jury instruction about experts, as I pointed out to the Court, is ironic because it . . . says that the jury has to take as true what the expert testifies to as the foundation for their believing the expert. And that's so contradictory, it's strange."

5. Analysis

Defendants contend that the trial court prejudicially erred in permitting Zuniga to testify to case-specific testimonial hearsay over their Sixth Amendment and hearsay objections.

In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the California Supreme Court held that "[t]he expert is generally not permitted . . . to supply case-specific facts about which he has no personal knowledge." (Id. at p. 676, italics added.) "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686, italics added.) "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception." (Id. at p. 684, italics added.) "When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the [factfinder] as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth." (Id. at p. 682.) "When an expert is not testifying in the form of a proper hypothetical question and no other evidence of the case-specific facts presented has or will be admitted, there is no denying that such facts are being considered by the expert, and offered to the [factfinder], as true." (Id. at p. 684.)

"If statements related by experts as bases for their opinions are not admitted for their truth, they are not hearsay." (Sanchez, supra, 63 Cal.4th at p. 681.)

Defendants contend that the trial court prejudicially erred in permitting Zuniga to testify to case-specific testimonial hearsay about (1) the predicates, (2) Fletes's connections to and criminal behavior with the Sureno gang, (3) Villareal's connections to and criminal behavior with the Sureno gang, and (4) jail visits, jail calls, and jail accounts. They contend that the error was prejudicial as to all counts and enhancements.

In their original pre-Sanchez briefing, defendants contended only that Zuniga's testimony about the predicate offenses violated their Sixth Amendment rights and required the reversal of the gang enhancements and the substantive counts. The Attorney General argued that Zuniga's testimony about the predicate offenses did not contain testimonial hearsay. After Sanchez, defendants filed more expansive briefing on this issue. The Attorney General contends that Villareal cannot raise any issues now because he did not petition for review and the issues are limited to those raised by Fletes in his petition for review. Not so. After a grant and transfer, the Court of Appeal may solicit briefing "on other matters" if it so chooses. (Cal. Rules of Court, rule 8.200(b)(2).) We have done so.

The first step in our analysis is to identify which portions of Zuniga's testimony were "case-specific" hearsay. Case-specific hearsay does not include an "expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field. Indeed, an expert's background knowledge and experience is what distinguishes him from a lay witness, and, as noted, testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth. Thus, [Sanchez] does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise. [Instead, Sanchez] restores the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Sanchez, supra, 63 Cal.4th at p. 685, italics added.)

The distinction between "case-specific facts" and "background information" is critical. "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." (Sanchez, supra, 63 Cal.4th at p. 676, italics added.) "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.)

The California Supreme Court's definition of "case-specific facts" in Sanchez did not precisely delineate what "more generalized information" should be considered "background information" rather than "case-specific facts." Since Sanchez, courts have disagreed about whether a gang expert's testimony about a gang's "primary activities, and pattern of criminal activities" is "case-specific" where it is "unrelated to defendants or the current" charged offenses. (Compare People v. Meraz (2016) 6 Cal.App.5th 1162, 1175 [Second District], review granted on a different issue and opinion ordered to "remain precedential" [testimony about "pattern of criminal activities" is not case-specific when unrelated to defendants or the current offenses] with People v. Ochoa (2017) 7 Cal.App.5th 575, 588 [First District] [testimony about hearsay admissions of gang membership by non-defendant perpetrators of predicate offenses was case-specific].)

Zuniga's testimony about the predicates not committed by defendants was almost entirely supported by independently admissible evidence. The exhibits upon which Zuniga relied were introduced into evidence, and these exhibits established not only the nature of the convictions but also that those offenses were committed for the benefit of the Sureno gang. Under these circumstances only very limited bits of Zuniga's testimony about these four predicates could potentially be characterized as case-specific. We do not further analyze those small bits of evidence because they played no significant role in this case. It was uncontested at trial that the Sureno gang was a criminal street gang. Zuniga's description of a few extraneous facts about those predicates that were not also established by the exhibits was plainly harmless under any standard.

The same cannot be said of Zuniga's testimony about the predicates committed by defendants and his testimony about defendants' connections to and criminal activity with the Sureno gang. These portions of Zuniga's testimony were plainly case-specific hearsay, and the Attorney General does not claim otherwise. Indeed, the Attorney General concedes that "the descriptions of the contacts and events in the reports of prior police contacts that Zuniga did not perceive are case specific hearsay." He also admits that most of this evidence was testimonial. The Attorney General's argument is that the erroneous admission of this evidence was harmless beyond a reasonable doubt.

The Attorney General claims that "most" of the evidence challenged by defendants "was admissible notwithstanding Sanchez." He identifies the admissible evidence that Zuniga relied on as Fletes's eagle tattoo (which Zuniga did not claim was associated with the Sureno gang), the items found in the search of Fletes's home, jail records, and jail phone calls. Defendants do not claim that the tattoo or the items found in the search were inadmissible under Sanchez. They do claim that the jail records and phone calls were inadmissible under Sanchez. As our summary of Zuniga's testimony reflects, he conveyed a large amount of inadmissible case-specific hearsay to the jury.

The Attorney General bears the burden of showing beyond a reasonable doubt that the erroneous admission of Zuniga's testimonial case-specific hearsay testimony in violation of defendants' Sixth Amendment rights did not contribute to the jury's verdicts on the substantive offenses and the gang enhancements. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) "[T]he beneficiary of [the] constitutional error [must] prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Reversal is required if there is a " 'reasonable possibility that the evidence complained of might have contributed to the conviction.' " (Chapman, at p. 23; Yates v. Evatt (1991) 500 U.S. 391, 403 (Yates), disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) "To say that an error did not 'contribute' to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous." (Yates, at p. 403.) "To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Thus, to say that [the error] did not contribute to the verdict is to make a judgment about the significance of the [error] to reasonable jurors, when measured against the other evidence considered by those jurors independently of the [error]." (Yates, at pp. 403-404.) "[T]he appropriate inquiry is 'not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.' (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [113 S.Ct. 2078, 2081, 124 L.Ed.2d 182], italics original.)" (People v. Quartermain (1997) 16 Cal.4th 600, 621; accord People v. Neal (2003) 31 Cal.4th 63, 86.)

The Attorney General maintains that the inadmissible case-specific testimonial hearsay conveyed to the jury by Zuniga was harmless because it was "duplicative of other evidence or otherwise not inflammatory." The Attorney General posits that our inquiry should be limited to determining whether the admissible evidence would have been adequate to support Zuniga's opinions. He claims that Zuniga's erroneously admitted case-specific testimonial hearsay testimony was harmless because (1) some of it portrayed Fletes as a victim, (2) it "showed a relatively low level of criminality," and (3) these portions of Zuniga's testimony "were the very items of evidence that the court admonished the jury were admissible only to show the basis for the expert's opinion." He concludes: "[T]he only evidence on which Zuniga relied that was inadmissible under Sanchez was insignificant compared to the evidence that was admissible."

We do not credit the Attorney General's claim that there was no prejudice because "the court admonished the jury" that this evidence was "admissible only to show the basis for the expert's opinion." Although the court did instruct the jury that Zuniga's inadmissible hearsay testimony was "not being offered for the truth of the matter asserted in the statements" and was admitted "only for the purpose of helping you understand on what basis he reached his opinion," it also told the jury that it "must decide whether information on which the expert relied was true or accurate." In Sanchez, the California Supreme Court ruled that an instruction that hearsay basis evidence was not to be considered for its truth did not prevent prejudice from the erroneous admission of case-specific hearsay basis evidence. "Once we recognize that the jury must consider expert basis testimony for its truth in order to evaluate the expert's opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth." (Sanchez, supra, 63 Cal.4th at p. 684.) Here, the inconsistent instructions by the trial court that the jury was not to consider the hearsay for its truth but was to determine whether it was true did not prevent prejudice from the trial court's error in admitting Zuniga's case-specific testimonial hearsay testimony.

The court's other limiting instruction also did not prevent any prejudice to defendants from the admission of Zuniga's case-specific testimonial hearsay testimony. Indeed, the "limited purposes" that it permitted were so broad that the instruction instead told the jury that it could use "evidence of gang activity" to decide virtually every contested issue at trial. The court instructed the jury: "You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements charged; [¶] OR [¶] The defendant had a motive to commit the crimes charged. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."

This instruction permitted the jury to use evidence of defendants' "gang activity," which was primarily introduced through Zuniga's case-specific testimonial hearsay testimony, to prove motive, intent, purpose, and knowledge with respect to the crimes and enhancements and in assessing Fletes's credibility. Since this instruction did not actually restrict the jury's use of the inadmissible evidence in any relevant respect, it did not prevent this evidence from prejudicing defendants.

The Attorney General's vision of the nature of our review is inaccurate. Our standard of review requires us to determine whether the inadmissible evidence influenced the jury's determinations, not whether the admissible evidence was potentially sufficient to support Zuniga's opinions. (See People v. Pettie (2017) 16 Cal.App.5th 23, 65 ["The question under Chapman is not whether the expert relied in significant part on the inadmissible evidence; the question is whether the admission of that evidence contributed to the verdict."].) The Attorney General's attempts to minimize the importance of some portions of the inadmissible testimony are unpersuasive because he mischaracterizes the scope and nature of the inadmissible evidence. Zuniga testified to a large amount of information about defendants that he presented to the jury virtually directly from police reports. This information did not fall within any hearsay exception, and it was both case-specific and testimonial. Much of this inadmissible testimony associated defendants with firearms and the Sureno gang, precisely the issues that were before the jury in this case. While there was admissible evidence that also associated defendants with firearms and the Sureno gang, the admissible evidence was more limited in both time and scope. Consequently, we reject the Attorney General's claim that the inadmissible evidence was "insignificant" in light of the admissible evidence. We proceed to consider the prejudice issue as to each defendant and each count and enhancement.

We begin with Fletes. Zuniga gave inadmissible case-specific hearsay testimony about the 2001 predicate offense committed by Fletes. This hearsay was testimonial because Zuniga based it on police reports. He did not limit his testimony to the facts that were shown by the properly admitted documents showing the nature of Fletes's 2001 conviction. Exhibit 281 established only that Fletes had been convicted in 2001 of a felon in possession of a firearm offense with a Sureno gang enhancement. However, Zuniga told the jury that, in the 2001 offense, Fletes was with another Sureno gang member in a vehicle with "two stolen firearms" and "magazines containing ammunition," including one magazine that "contained Mr. Fletes's fingerprints on it." The inadmissible testimony that Fletes and another Sureno gang member were in a vehicle, that the firearms were stolen, that they had magazines with ammunition, and that Fletes's fingerprints were on a magazine made Fletes's 2001 offense appear substantially more egregious than the admissible facts shown by the exhibit. This inadmissible evidence also provided the prosecutor with the foundation for his argument that the revolver did not have Fletes's fingerprints only because Fletes had learned from the 2001 offense to wear gloves when handling guns. Zuniga also conveyed to the jury a large amount of inadmissible case-specific hearsay testimony about Fletes's "law enforcement contacts." Because this testimony was derived from Zuniga's "reading of police report[s]," it was testimonial. Zuniga described 17 events over a period of more than a decade involving Fletes, nearly all of which associated Fletes with Sureno gang members, the Sureno gang, firearms, ammunition, or a combination of these.

Although there was some admissible evidence associating Fletes with Sureno gang members, the Sureno gang, firearms, and ammunition, that evidence was considerably more limited than Zuniga's inadmissible testimonial case-specific hearsay testimony on this subject. One, the admissible evidence showed that Fletes had been a Sureno gang member when he was convicted in 2001 of possession of a firearm by a felon for the benefit of the Sureno gang, but that conviction occurred when Fletes was concededly a Sureno gang member. Two, admissible evidence showed that a firearm, ammunition, and items associated with firearms were found in Fletes's home two weeks after the January 2009 shooting, but Fletes testified that he did not live there at the time of the search and had no knowledge of the presence of those items in his home. None of the firearm related items were found in Fletes's bedroom. Three, Fletes possessed a Dallas Cowboys jersey bearing the number 31, but he testified that he was simply a longtime Cowboys fan. Four, gang lyrics were found in Fletes's garage. However, Fletes testified that the gang lyrics were a relic of his pre-2003 activities, and there was no evidence to the contrary. Five, the letters from Alvarado did not show anything other than that the two men were acquainted, and Fletes freely admitted that he knew people who were Sureno gang members. These letters showed nothing more than Fletes's friendship with Villareal showed. Having a friend who is a Sureno gang member does not necessarily prove that a person is a Sureno gang member.

The inadmissible evidence associating Fletes with firearms, ammunition, Sureno gang members, and the Sureno gang was not insignificant in light of the admissible evidence supporting such associations. This was important because the contested issues at trial revolved around Fletes's responsibility for the revolver and ammunition found in his shop and the connection between Fletes and the Sureno gang. We have no difficulty concluding that the inadmissible evidence was prejudicial as to the gang enhancements because so much of the inadmissible evidence was directed toward debunking Fletes's testimony that he had ceased to be a Sureno gang member in 2003. We cannot say beyond a reasonable doubt that the inadmissible evidence did not influence the jury's decision to reject Fletes's testimony. While the prejudice issue presents a more difficult question with regard to the possession counts, we conclude that the error was prejudicial as to those counts also. The possession counts depended on whether the revolver and ammunition found in Fletes's shop were in Fletes's possession. The ammunition was hidden in a "junk" drawer. The revolver was found near where Fletes was shot, but there was no solid explanation for how it had come to rest under the Corvette. Fletes testified that he was unaware of its presence. The inadmissible evidence, which painted a portrait of Fletes as a man with a long history of association with firearms and ammunition, damaged the credibility of his claim that he was unaware of the presence of the revolver and the ammunition. We are forced to conclude that, with respect to Fletes, the error was prejudicial as to both the possession counts and the enhancements.

We turn next to Villareal. Exhibit 279 established that Villareal had been convicted of assault with a deadly weapon in 2004. A charged gang enhancement was neither admitted nor found true. Exhibit 280 established that Villareal had been convicted in 2003 of a concealed firearm on his person offense that applied only to a gang member. Although the facts shown by these exhibits were properly admitted, Zuniga provided to the jury additional, more inflammatory facts that he had gleaned from police reports. He told the jury that, during the 2003 offense, Villareal "ran from police officers" while carrying "a loaded 22-caliber handgun in his waistband" at "a street festival." The flight from the police officers, the fact that the firearm was loaded, and the location of the offense were highly prejudicial in this case because those inadmissible facts bore distinct similarities to the charged offense here, which was based on Villareal's alleged flight from police officers with a loaded .22 caliber handgun in his waistband. Zuniga also told the jury that, during the 2004 offense, Villareal "assaulted another inmate with a loaded sock." The fact that Villareal was in jail at the time of that offense was not demonstrated by other admissible evidence, and it was prejudicial because it told the jury that Villareal had a history of violence even while incarcerated. This prejudice was exacerbated by Zuniga's testimonial case-specific hearsay testimony that, in June 2011, while Villareal was in jail pending trial in this case, Villareal and another Sureno gang member assaulted a fellow inmate with a shank. In sum, the inadmissible evidence characterized Villareal as a dangerous man who was violent even while in jail and had previously committed an offense that was very similar to the charged offense. While the prosecution presented a strong case based on admissible evidence that Villareal was in possession of the .22 caliber handgun that was found in the shop, we cannot say beyond a reasonable doubt that the inadmissible evidence did not play a role in influencing the jury's verdict on the possession count and the gang enhancement.

Our conclusions regarding prejudice are buttressed by a consideration of the prosecutor's arguments to the jury. He repeatedly claimed that defendants' gang membership itself supported a conclusion that they had possessed the firearms because gang members, in his words, have "a propensity" to possess firearms. He argued that the evidence "clearly proves that as gang members they have a propensity to possess and to use guns and ammo." (Italics added.) "They are Sureno gang members. They possessed the guns. They had the propensity, as gang members, to not only possess those guns but use those guns . . . ." "And it's clear that the defendants are felons and Surenos. They possessed those guns and ammo, they had the propensity to possess and use those guns . . . ." Thus, he repeatedly argued to the jury that defendants' association with the Sureno gang was itself a ground for finding that defendants possessed the firearms and ammunition. We cannot conclude beyond a reasonable doubt that the inadmissible evidence did not play a role in the jury's decision on the possession counts where the prosecutor repeatedly and explicitly invited the jury to rely on gang evidence, a substantial quantity of which was inadmissible case-specific testimonial hearsay, as the basis for returning guilty verdicts on those counts.

Because we reverse the judgment in its entirety, we need not address defendants' other contentions. --------

V. Disposition

The judgment is reversed, and the matter is remanded for retrial on the possession counts and the gang enhancements attached to the firearm possession counts. The trial court is directed to dismiss the active participation counts and the gang enhancement allegation attached to the possession of ammunition count due to insufficiency of the evidence.

/s/_________


Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Elia, J.