Opinion
F073358
04-19-2018
THE PEOPLE, Plaintiff and Respondent, v. ISRAEL FRANCO, et al., Defendants and Appellants.
Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant Israel Franco. Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant Simon Gonzalez. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 14CM7150-002, 14CM7150-004)
OPINION
APPEAL from judgments of the Superior Court of Kings County. Steven D. Barnes, Judge. Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant Israel Franco. Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant Simon Gonzalez. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Israel Franco and Simon Gonzalez were jointly tried and convicted of aggravated assault and active participation in a criminal street gang. Gang enhancement allegations were found to be true, and Franco was additionally found to have inflicted great bodily injury upon two victims. On appeal, both men challenge the sufficiency of the evidence supporting the gang charges and related enhancements. Gonzalez, who was found liable as an aider and abettor on certain counts, also disputes the sufficiency of the evidence supporting his other convictions. Lastly, error is alleged with regard to the use of hearsay during testimony by the People's gang expert.
We reject the claims of insufficient evidence. The jury was improperly exposed to hearsay, but the error was harmless. Therefore, we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
A.C. (victim #1), S.L. (victim #2) and J.V. (victim #3) are self-admitted ex-Norteno gang members, aka "dropouts." On March 15, 2014, they were attacked by a group of people who they believed and/or knew to be Nortenos or "Northerners," i.e., members of the gang to which they formerly belonged. The incident occurred at approximately 10:00 p.m. outside of a grocery store in Corcoran. The victims were punched, kicked, and hit with a crowbar. All those involved, including the victims, fled after the store manager called the police.
After leaving the scene, the victims went to the home of victim #2. Shortly thereafter, victims #2 and #3 travelled to the hospital. Victim #3 had sustained a life-threatening head injury from being struck with the crowbar and was bleeding profusely. He was admitted to the emergency room for treatment of a cut artery. Doctors were able to stop the bleeding and closed the head wound with staples. Victim #2, who was reportedly "covered in blood" when he entered the hospital, was treated for injuries to his head and right knee. He was given crutches and a brace for the latter injury.
Meanwhile, back at victim #2's residence, the police arrived and obtained a recorded statement from victim #1. He was noted to be under the influence of alcohol but lucid and able to recount what had happened. Paramedics bandaged a laceration on his head while he conversed with the police officers. Victim #1 stated that he had been assaulted by "Simon," "Geester" (or "G-ster"), and "Creature," and that "Creature" had hit him in the head with a crowbar. He referred to the assailants as "Northerners" and claimed to have been attacked because of his dropout status.
The investigating officers knew that "Geester" and "Creature" were monikers used by Gilbert Navarro and Israel Franco, respectively. The victim had provided information regarding the home address of "Simon," which apparently led them to believe he was referring to Simon Gonzalez. Victim #1 later identified Franco and Gonzalez from photographic lineups, and he confirmed that Franco was the person he knew as "Creature." Victim #1 also positively identified Navarro during a "field showup."
Navarro was originally named as a codefendant in this case, but he pleaded out shortly before trial.
Victims #2 and #3 left the hospital with their girlfriends sometime after midnight and stopped at a gas station in Hanford on their way home. After pulling into the station, they saw Gonzalez seated in a brown Toyota Camry that had parked next to them. Gonzalez looked at them before getting out of the car and opening its trunk. Fearing another assault, the victims departed. The other car gave chase and followed them back to Corcoran. One of the girlfriends called the police, which led to Gonzalez's arrest.
Gonzalez was apprehended in front of his home as he was exiting a brown Toyota Camry. A search of his person yielded a hammer, which was found "protruding from his waist band." While in custody, he made an incriminating statement: "We got down at [the grocery store], but because those fools were trying to start problems."
At trial, the word "we" was excluded from evidence.
Franco and Gonzalez were charged with attempted murder (Penal Code, §§ 187, 664; counts 1-3); assault with a deadly weapon (§ 245, subd. (a)(1); counts 4-6); assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); counts 7-9); and active participation in a criminal street gang (§ 186.22, subd. (a); count 10). Counts 1-9 were alleged to be gang-related for purposes of section 186.22, subdivision (b). Each defendant was alleged to have personally inflicted great bodily injury upon victims #2 and #3 (§ 12022.7, subd. (a); counts 2-3, 5-6, 8-9). The charges were tried before a Kings County jury in January and February 2016.
Unless otherwise specified, all statutory references are to the Penal Code.
The store manager testified to having witnessed the conclusion of a large-scale fight. He recalled seeing victim #2 on the ground and getting kicked by at least two people before being struck with "some type of bar." The manager could not identify the attackers, but he opined (without objection) that "you could tell they were gangsters."
According to the testimony of victims #2 and #3, they had been partying at victim #2's house earlier in the evening and drove to the grocery store with victim #1 and one or two additional companions to buy beer. They parked near an adjacent fast food restaurant. Upon exiting their vehicle, a half-full beer can was thrown at them and they heard one or more persons yell out "Norte." Next, a group of approximately 15 to 25 people began to attack them. Victim #3 testified as follows: "I [saw] a lot of gang members ... they were at the parking lot [of the fast food restaurant, then] [t]hey just approached us and started fighting."
Victim #2 only testified to hearing the word "Norte" at the end of the attack.
Victims #2 and #3 explained that Norteno dropouts are at risk of being assaulted by currently active gang members. They knew from personal experience that Nortenos use the word "Norte" to convey their gang affiliation. Victim #2 testified that during his period of membership, Nortenos would assault dropouts simply because they had abandoned the gang; commit such assaults in public places; and yell out "Norte" while doing so. He acknowledged that such crimes are beneficial to the gang because the publicity enhances its reputation as a group to be feared and respected.
When victim #3 took the witness stand, he tearfully revealed that Franco is his second cousin. After composing himself, he testified that Franco had struck him three times in the head with a crowbar. The jury was then shown photographs of his injuries. He went on to describe having witnessed Franco strike victim #2 with the crowbar "over ten times," and seeing Franco use the same weapon to hit victim #1. The latter blow was delivered while victim #1 was being punched by Gonzalez. Victim #2 did not identify the perpetrators but confirmed he was struck with the crowbar "more than eight times," including on the back of his head, and also suffered "a bunch of kicks [to the] face." The jury was shown photographs of his injuries as well.
Victim #1 was a recalcitrant witness. Amid making other self-contradictory statements, he alternated between claiming to have virtually no recollection of his conversations with the police and alleging that he had been told to lie about the identities of his attackers. This testimony was impeached with an audio recording of his initial police interview, which had taken place within about 30 minutes of the attack. Victim #1 was also impeached with evidence of his photographic lineup identifications and by testimony from the officers with whom he had previously cooperated.
Officer Refugio Aguirre of the Corcoran Police Department served as the People's gang expert. He testified that the Nortenos are a criminal street gang and opined that both defendants had been active members during the relevant time period. He explained that Nortenos view dropping out of the gang as treasonous and unacceptable: "[Dropouts are] terrorized. They are assaulted. They are murdered. ... I have rarely come across a dropout that did not have some kind of confrontation, or an assault, or being stabbed or even shot at." Dropouts who suffer such retribution are often afraid to testify against the gang, and even those who initially cooperate with law enforcement will sometimes recant or dissemble in court. A more detailed summary of the gang evidence is provided in our Discussion, post.
The jury returned mixed verdicts. Both defendants were acquitted of attempted murder but convicted on the remaining charges. All gang enhancement allegations were found to be true. The great bodily injury enhancements were found true as to Franco but not true as to Gonzalez. Accordingly, Franco was sentenced to a 21-year prison term and Gonzalez was sentenced to a prison term of 14 years, four months. Timely notices of appeal followed.
Franco's sentence was calculated using the upper term of four years for assault with a deadly weapon against victim #2 (count 5) plus a 10-year violent felony gang enhancement (§ 186.22, subd. (b)(1)(C)); one year for assault with a deadly weapon against victim #3 (count 6; one-third of the middle term) plus three years, four months for the violent felony gang enhancement (one-third of the 10-year term); and one year for assault with a deadly weapon against victim #1 (count 4; one-third of the middle term) plus one year, eight months for the serious felony gang enhancement (§ 186.22, subd. (b)(1)(B); one-third of the five-year term). Punishment for all remaining convictions and enhancements was stayed pursuant to section 654.
Gonzalez's sentence was calculated using the upper term of four years for count 4 plus a fiveyear serious felony gang enhancement and, for counts 5 and 6, consecutive oneyear terms for the convictions (onethird of the middle term) and consecutive terms of one year, eight months for the serious felony gang enhancements (onethird of each fiveyear term). Punishment for all remaining convictions and enhancements was stayed pursuant to section 654.
DISCUSSION
Sufficiency of the Evidence
Standard of Review
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Edwards (2013) 57 Cal.4th 658, 715.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The jury's findings on enhancement allegations are reviewed under the same standard. (See People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Aiding and Abetting Liability
Gonzalez seeks reversal of counts 4, 5, 6, 8, and 9 on grounds that "[t]here was no evidence of communication between the defendants, or any act on [his] part to assist or encourage Franco." He impliedly concedes the sufficiency of the evidence supporting count 7, i.e., assault with force likely to produce great bodily injury against victim #1, but argues his actions were entirely independent of Franco's use of a crowbar to strike victim #1 in the head. The same argument is made in relation to Franco's crimes against victims #2 and #3.
"A 'person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' " (People v. Marshall (1997) 15 Cal.4th 1, 40.) Proof of an agreement between the principal and the accomplice is not required. (People v. Morante (1999) 20 Cal.4th 403, 433.) "In fact, it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances. [Citations.] Aiding and abetting may be committed 'on the spur of the moment,' that is, as instantaneously as the criminal act itself." (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.)
"Mental state and intent are rarely susceptible of direct proof and must therefore be proven circumstantially." (People v. Thomas (2011) 52 Cal.4th 336, 355.) In an aiding and abetting context, relevant factors include presence at the crime scene, companionship with the principal offender, and conduct before and after the offense. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054-1055 (Nguyen).) Gang evidence may strengthen the inferences arising from these factors. (Id. at pp. 1055-1056.)
Although appellants challenge the use of hearsay in the gang expert's testimony, we explain later in the opinion that their gang ties were independently established by admissible evidence. In addition, the expert permissibly testified that it is "very common" for Nortenos to commit group attacks because doing so makes the gang appear more formidable and vicious. "They want the notoriety, they want people to know how violent they are."
Gonzalez's culpability as an aider and abettor is inferable from his participation in a group assault with fellow gang members against heavily outnumbered victims. At best, it was anywhere from 10 to 25 Nortenos against four or five dropouts. Those circumstances are inherently indicative of the assailants' intentions. Although defense counsel theorized that victim #1 was the initial aggressor, the eyewitness accounts indicated that Franco had possession of the crowbar when the fight began. The jury could have reasonably deduced that Gonzalez knew Franco was armed with a deadly weapon based on his presence at the scene and conduct immediately prior to the offense i.e., congregating with Franco and other gang members outside of the adjacent fast food restaurant. Gonzalez's participation in the ensuing attack, which included punching victim #1 at approximately the same time as he was being hit with the crowbar, permits inferences of knowledge, shared intent, and aid or encouragement.
The above conclusion is bolstered by Gonzalez's post-offense conduct. Although he focused his energy on victim #1 during the attack, he apparently followed victims #2 and #3 home from the hospital a few hours later. Even assuming their meeting at the Hanford gas station was a chance encounter, he reacted to seeing them by getting out of his car and opening the trunk, presumably to retrieve something. The victims pulled away, and he followed them back to Corcoran. When arrested a short while later, he was found to be carrying a hammer. Viewing the record in the light most favorable to the judgment and considering the factors of presence, companionship, and conduct before, during, and after the commission of the offenses, as well as the relevant gang evidence, we cannot say the evidence was insufficient to support Gonzalez's convictions.
Elements of Section 186.22
Section 186.22 proscribes the substantive offense of active participation in a criminal street gang, as set forth in subdivision (a), and includes enhancement provisions, which are found in subdivision (b). (People v. Elizalde (2015) 61 Cal.4th 523, 538-539.) The elements of the substantive offense are: "First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) The enhancement provisions apply when an offense is committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b).)
The gang statute naturally requires proof of the existence of a "criminal street gang." (People v. Vasquez (2016) 247 Cal.App.4th 909, 922.) This term refers to "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).)
Franco argues that the "primary activities" element was never established. Therefore, according to his argument, the People failed to show the Nortenos qualify as a criminal street gang. He thus seeks reversal of count 10 and the gang enhancement findings. Gonzalez's briefing contains similar and related contentions.
"The phrase 'primary activities,' ... implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members. ... [¶] Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony ...." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 (Sengpadychith), italics omitted.) In practice, the required showing is easily made. The prosecutor typically asks a gang expert about the activities of a particular gang, and the expert, relying on his or her training and experience, attests to knowing that the gang's primary activities include the commission of one or more offenses listed in section 186.22, subdivision (e). (See, e.g., People v. Prunty (2015) 62 Cal.4th 59, 82 [expert's testimony "that 'the Nortenos' in the area engage in various criminal practices including homicide, assault, and firearms offenses" was "likely sufficient" to establish primary activities element]; Nguyen, supra, 61 Cal.4th at p. 1068; Sengpadychith, supra, 26 Cal.4th at p. 324.)
In the trial below, Officer Aguirre testified that the Nortenos' primary activities include "witness intimidation, assault with deadly weapons, assaults with great bodily injury ... attempted murder as well, and homicide murder." Comparing this case to In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), Franco claims the expert's testimony lacked proper foundation. As we explain, the attempted analogy fails.
In Alexander L., which arose from a delinquency proceeding concerning acts of vandalism, the expert was asked about a gang's primary activities and responded as follows: " 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.' " (149 Cal.App.4th at p. 611.) The expert did not state that the crimes he had referenced constituted the gang's primary activities. (Id. at p. 612.) On cross-examination, he testified that the "vast majority" of cases for which he had knowledge of the gang's participation were "graffiti related," but he never said those cases actually involved felony vandalism. (Ibid., fn. 2; see §§ 186.22, subd. (e)(20), 594 [defacing property with graffiti is not necessarily a qualifying gang offense].) Finding that the expert's testimony was "conclusory" and "lacked an adequate foundation," the appellate court reversed a gang enhancement for insufficient evidence of the primary activities element. (149 Cal.App.4th at pp. 612, 614.)
Here, Officer Aguirre expressly stated that the primary activities of the Nortenos include specific qualifying felonies. (See, e.g., § 186.22, subds. (e)(1) ["Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245"], (e)(3) [unlawful homicide and attempted murder].) The expert was a 13-year veteran of the Corcoran Police Department who had been part of the Kings County Gang Task Force from approximately April 2012 through June 2015. He had received over 200 hours of "gang training" and belonged to professional organizations that focus on continuing education in his field of expertise. More importantly, he had testified as a Norteno gang expert in the Kings County Superior Court "on 21 occasions ... [and] in reference to approximately 29 defendants," each time determining that the defendants were gang members who had committed crimes "in furtherance of the gang." We are confident the jury could have reasonably inferred Officer Aguirre's reliance on his extensive training and professional experience as the foundation for his primary activities testimony. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [rejecting appellant's reliance on Alexander L. under similar circumstances].)
In a related claim, Franco argues the People failed to show he actively participated in a criminal street gang with the requisite "knowledge that its members engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (a).) To better frame this issue, we turn again to the definition of a criminal street gang. Besides the primary activities element, section 186.22 requires evidence that members of the gang "individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) "A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.' (Id., subd. (e).)" (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The list of qualifying offenses is found in section 186.22, subdivision (e)(1)-(33).
The prosecutor questioned Officer Aguirre about four prior offenses committed by individuals with no apparent connection to this case. The occurrence of those crimes, all of which qualified as predicate offenses, was established by certified copies of court records. Officer Aguirre's testimony indicated the offenses had been committed by Norteno gang members. Franco argues there was no evidence that he knew of those past crimes or was acquainted with the people who committed them, and, therefore was not shown to have knowledge that Norteno gang members "engage in or have engaged in a pattern of criminal gang activity" as required by section 186.22, subdivision (a).
Although recognized elsewhere in his briefs, Franco's argument does not account for the prosecutor's ability to rely on evidence of currently charged offenses to satisfy the "pattern of criminal gang activity" requirement. (People v. Loeun (1997) 17 Cal.4th 1, 10; accord, People v. Tran (2011) 51 Cal.4th 1040, 1046.) There was ample evidence that Franco committed the qualifying offenses of assault with a deadly weapon and assault with force likely to produce great bodily injury against three victims. (See § 186.22, subd. (e)(1).) Qualifying offenses were committed by at least two gang members, as Gonzalez was both an aider and abettor and subject to direct liability for committing aggravated assault against victim #1 (ibid; see § 245, subd. (a)(4)). We note further that it is enough to show a predicate crime was committed; a conviction is unnecessary. (People v. Garcia (2014) 224 Cal.App.4th 519, 524.) The jury could have also found that at least two gang members committed aggravated assault by repeatedly kicking victim #2 in the head. (See People v. Roberts (1981) 114 Cal.App.3d 960, 965 ["the kicking on the head and torso of a largely defenseless man on the ground ... [is] unmistakably an assault which a jury could reasonably find was likely to produce great bodily harm."].)
"[J]ust as a jury may rely on evidence about a defendant's personal conduct, as well as expert testimony about gang culture and habits, to make findings concerning a defendant's active participation in a gang or a pattern of gang activity, it may also rely on the same evidence to infer a defendant's knowledge of those activities." (People v. Carr (2010) 190 Cal.App.4th 475, 489, fn. omitted.) Given the evidence of appellants' commission of the charged offenses, which was alone sufficient to establish the required "pattern of criminal gang activity," neither of them can successfully argue that the knowledge requirement of section 186.22, subdivision (a) was not proven by substantial evidence.
Erroneous Admission of Hearsay
While this appeal was pending, the California Supreme Court issued its opinion in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which announced changes in the law governing the use of hearsay in expert testimony. Appellants rely on Sanchez in assigning error to the admission of hearsay during Officer Aguirre's testimony. The Attorney General contends the issue was forfeited by a failure to object at trial. Harmless error is argued in the alternative. For the reasons that follow, we reject the forfeiture argument but agree that the erroneous admission of hearsay did not affect the jury's verdicts.
Additional Background Information
As discussed, the expert testified to the existence of a criminal street gang called the Nortenos. The gang identifies with the color red, as well as with numbers and symbols connoting "north" and/or the Nuestra Familia prison gang (to which they are connected). Norteno means "Northerner," and "Norte" means "North." The Nortenos are the predominant gang in Corcoran, and certain locations within the city are considered part of their "turf" or territory. The parking lot of the fast food restaurant in the immediate vicinity of the subject incident was/is a well-known Norteno hangout. In Officer Aguirre's words, "the Nortenos themselves have deemed that area as their turf."
The expert's opinions regarding Franco's and Gonzalez's gang membership were based on a combination of hearsay and non-hearsay sources. We summarize the pertinent evidence in each category.
1. Franco
Officer Aguirre "read approximately 78 reports regarding Mr. Franco, which also included field interview cards, field interview reports, and gang registrations." Relying on the contents of those materials, he alleged the existence of a court order from 2011 that had required Franco to register as a gang member. Franco allegedly admitted to being a gang member during the registration process. Officer Aguirre did not purport to have personal knowledge of those facts, and the assertions were not independently supported by admissible evidence. The same is true of his testimony that Franco had made a similar admission to police officers in September 2013.
The expert related hearsay about three other incidents. In March 2013, Franco allegedly participated in a four-against-one group assault with other Norteno gang members. In June 2013, in the parking lot of the aforementioned fast food restaurant in Corcoran, police responded to a report that Franco and two other Nortenos were harassing patrons and "yelling out gang slurs." In October 2013, Franco was among 12 suspected gang members who were reported to have verbally harassed motorists in the area of Highway 43 and Pickeral Avenue. Those involved allegedly wore "a lot of red [clothing]."
In terms of admissible evidence, Officer Aguirre testified to having witnessed a gathering of approximately 25 people outside of the Corcoran YMCA in April 2013. He had gone there to speak with management about a recent spate of Norteno crime at that location and came upon a posthumous birthday party for an especially celebrated gang member known as "Little Rex." Custom shirts had been made to honor the young man's life and passing, and there was "red decor, balloons, [and] things of that nature." Three days later, Officer Aguirre saw on social media a photograph from the party that showed Franco "standing in the middle" of a group of at least seven individuals whom he (the expert) knew to be active Norteno gang members. In earlier testimony, the expert had explained that Nortenos are an insular group: "Gang members generally don't allow just anybody to hang out with them[;] it has got to be somebody that they trust, somebody that they know and that they're comfortable with."
Photographs "are not testimonial and they are not hearsay," but rather "demonstrative evidence, depicting what the camera sees." (People v. Cooper (2007) 148 Cal.App.4th 731, 746.) Franco concedes these points in his reply. If Officer Aguirre's testimony about the photograph was excludable on other grounds, the necessary objections were not made below.
In September 2013, Officer Aguirre saw Franco outside of the Corcoran YMCA wearing a red hat and red shorts. The significance of this observation was Franco's presence on Norteno turf and his exhibition of the gang's signature color. The expert also sat through the prosecution's case-in-chief and had relied on the evidence presented in forming his opinions.
2. Gonzalez
Officer Aguirre consulted approximately 30 sources of information about Gonzalez (e.g., police reports, field interview cards), from which he discovered 23 prior contacts between Gonzalez and law enforcement personnel. The expert related hearsay about three incidents. In June 2011, a sheriff's deputy allegedly saw Gonzalez fraternizing with several "active Norteno gang members." Gonzalez had been wearing "a red and white striped polo shirt" and admitted to the deputy that he was a Norteno gang member. In December 2012, Gonzalez was contacted by police at the Corcoran YMCA while in the company of a "very well-known and validated Norteno gang member." Both individuals were wearing red clothing and/or accessories, and Gonzalez admitted his Norteno membership while speaking to the officer. In November 2013, Gonzalez was contacted by police while associating with a "well-known and documented gang member" and wearing a red belt and red shoes.
In June 2012, Officer Aguirre personally observed Gonzalez inside of a home where several Norteno gang members were known to reside. This encounter took place while the officer was investigating a gang-related assault, but Gonzalez was not alleged to have been involved in the offense. In addition to relying on his personal knowledge of this incident, the expert relied on the People's trial evidence, including testimony and photographs relating to Gonzalez's arrest for the charged offenses. He found it probative that Gonzalez had worn red shoes and partially red clothing on the night in question.
Applicable Law
"Expert testimony is admissible to establish the existence, composition, culture, habits, and activities of street gangs; a defendant's membership in a gang; gang rivalries; the 'motivation for a particular crime, generally retaliation or intimidation'; and 'whether and how a crime was committed to benefit or promote a gang.' " (People v. Hill (2011) 191 Cal.App.4th 1104, 1120.) Until recently, experts could testify about out-of-court statements upon which they had relied in forming their opinions even if the statements were otherwise inadmissible under the hearsay rule. Case law held that such evidence was not offered for its truth, but only to identify the foundational basis for the expert's testimony. (E.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements in an expert's "basis testimony" to be compliant with the hearsay rule and the requirements of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108, citing Evid. Code, § 1200.)
The right of confrontation, as guaranteed by the Sixth Amendment to the federal Constitution and made applicable to the states through the Fourteenth Amendment, ensures the opportunity for cross-examination of adverse witnesses. (People v. Fletcher (1996) 13 Cal.4th 451, 455.) In Crawford, the United States Supreme Court held that the confrontation clause bars the admission of testimonial hearsay unless the declarant is unavailable and the defendant had a previous opportunity for cross-examination. (541 U.S. at p. 59.)
In Sanchez, supra, the California Supreme Court determined that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which in turn implicates the hearsay rule and the constitutional right of confrontation. (63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay.... If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.)
The upshot of the Sanchez decision is that a gang expert cannot testify to case-specific facts asserted in hearsay statements unless such facts are within the expert's personal knowledge or independently supported by admissible evidence. Factual assertions are "case-specific" if they relate "to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at 676.) Federal constitutional issues arise if case-specific facts are presented in the form of testimonial hearsay. (Id. at pp. 680-681, 685.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Id. at p. 689.) Information contained in a police report is generally construed as testimonial hearsay because police reports "relate hearsay information gathered during an official investigation of a completed crime." (Id. at p. 694.)
The erroneous admission of testimonial hearsay is reviewed for prejudice under the standard articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). (See Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The People must show, beyond a reasonable doubt, that the error did not contribute to the jury's verdict. (Id. at p. 698.) The erroneous admission of non-testimonial hearsay is a state law error, which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818. (Crawford, supra, 541 U.S. at p. 68; People v. Duarte (2000) 24 Cal.4th 603, 618-619.)
" 'To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86.)
Analysis
Preliminarily, we reject the People's forfeiture argument. "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237.) The People maintain that any claims based on Sanchez were forfeited by a failure to object below, but it can hardly be argued that such objections would not have been futile given the state of the law at that time. It is thus appropriate to resolve the claims on the merits. (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508.)
It is beyond dispute that Sanchez error occurred in this case. Officer Aguirre related information to the jury that he had learned from, and believed to be true based upon, his review of police reports, field identification cards, and other hearsay sources. The issue to be determined is prejudice.
Appellants focus on the expert's testimony concerning the four predicate offenses that had no direct relationship to the subject incident. The prevailing rationale is that testimony about predicate offenses entails "case-specific facts" and thus falls within the purview of Sanchez. (E.g., People v. Huynh (2018) 19 Cal.App.5th 680, 695; People v. Lara (2017) 9 Cal.App.5th 296, 337; People v. Ochoa (2017) 7 Cal.App.5th 575, 583, 588-589; but see People v. Meraz (2016) 6 Cal.App.5th 1162, 1174-1175 [concluding expert testimony about a gang's "pattern of criminal gang activities" was not case-specific].) However, we have already explained that evidence of the currently charged offenses was sufficient to establish the required "pattern of criminal gang activity." The jury was properly instructed on that point. Therefore, the initial consideration is whether, but for the inadmissible hearsay, the jury might have reached a different conclusion regarding the predicate offenses requirement.
The fact that the Nortenos qualify as a criminal street gang under section 186.22 was essentially undisputed. Gonzalez's trial attorney actually conceded the issue during closing argument: "Nortenos are a criminal street gang. Yeah, that is pretty much common knowledge. Most people know that, not denying that. ... [The expert] was helpful in showing that Nortenos are a criminal street gang, but we already knew that, or most of us already knew that." Franco's trial counsel actually urged the jury to accept Officer Aguirre's predicate offenses testimony as true. Therefore, and because the charged offenses were alone sufficient to establish the requisite "pattern of criminal gang activity," we are unpersuaded by the argument that hearsay concerning superfluous predicate offenses may have altered the outcome of this case.
Franco's counsel strongly advocated for not guilty verdicts on the attempted murder counts, almost to the point of conceding the remaining charges. He argued the circumstantial evidence of mens rea was ambiguous, which translated to reasonable doubt on the question of Franco's intent to kill (e.g., "you can conclude, reasonably conclude that the intention here was to assault and inflict an injury short of death."). To strengthen his argument, counsel reminded the jury, "We know that assault is one of the primary activities of the criminal street gang, and that is what Officer Aguirre talked to us about." He later reiterated: "I encourage you to look at the predicated offenses in Exhibits 44 through 47 [-] two of those are [section] 245(a)(1)'s that are charged in Counts 4, 5, and 6 [-] and consider the testimony of Officer Aguirre when he referred to those predicated acts, and again those assaults. Assaults with deadly weapons are primary activities of the Norteno gang."
The remaining question is whether the jury might have interpreted the evidence differently had the hearsay been excluded. By all accounts, and even according to the defense theory of the case, this was a gang-related incident. Gonzalez's trial attorney repeatedly argued and insinuated that victims #1, #2, and #3 were members of a Norteno dropout gang called the Northern Riders. According to the defense theory, the victims got drunk and decided to start a fight with some Nortenos, which is why they drove to a known Norteno hangout, i.e., the fast food restaurant. Victim #1 was portrayed as the ringleader, and he was alleged to have initially attacked the defendants and their fellow Nortenos with the crowbar.
Franco and Gonzalez did not argue self-defense, nor did they attempt to refute the evidence of their Norteno affiliations. Their primary goal was to negate the mens rea for attempted murder, which proved to be an effective strategy. The defense theory was summarized in the following questions posed to victim #2 on cross-examination: "[Y]ou guys drove to [the grocery store], you went out of your way to park close to these guys, because you guys were going to get down in a fight? ... You guys wanted to show the Northern Riders is no one to mess with, and you guys were there to show you might be dropouts, but you guys are tough? ... Isn't it true that [victim #1] had a crowbar?"
The testimony of Officer Aguirre was not the only evidence of appellants' gang membership. In victim #1's recorded police interview, he professed to have personal knowledge that Franco, Gonzalez, and a third perpetrator (Navarro) were "Northerners." Victim #1 said he had known them for "years," explaining that he and Gonzalez grew up together and used to hang out during his days as an active Norteno. Victim #3 referred to Gonzalez as a "gang member" on direct examination, albeit without providing the basis for his assertion.
The details of the crime were also probative. The incident took place on Norteno turf, and one or more of the perpetrators had yelled out "Norte" at the beginning and end of the assault. All of the victims were Norteno dropouts. Gonzalez was wearing red clothing and footwear at the time of the attack. Franco may not have been wearing red that evening, but he was the principal offender. Furthermore, he and Gonzalez had a history of associating with Nortenos and displaying the gang's colors. Given the totality of the circumstances, it is difficult to imagine that any rational juror could view appellants' behavior as not constituting active participation in a criminal street gang and/or not qualifying as gang-related conduct under section 186.22, subdivision (b). Therefore, assuming the Chapman standard applies to the challenged testimony, we conclude the errors are harmless beyond a reasonable doubt.
DISPOSITION
The judgments are affirmed.
/s/_________
ELLISON, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
SMITH, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------