Opinion
F069675
01-09-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO JESUS SANDOVAL, Defendant and Appellant.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F10901084)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Roberto Jesus Sandoval was convicted by jury of first degree murder (Pen. Code, § 187, subd. (a), count 1) and attempted murder (§§ 664, 187, subd. (a), count 2). The jury also found true enhancements attached to both counts alleging defendant personally discharged a firearm which caused great bodily injury or death (§ 12022.53, subd. (d)), and he committed both crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
All undefined statutory citations are to the Penal Code unless otherwise indicated.
Defendant was sentenced to a total indeterminate term of 75 years to life in prison plus a determinate term of 29 years, including: 25 years to life on count 1, enhanced by 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), plus 10 years pursuant to the criminal street gang enhancement (§ 186.22, subd. (b)(1)); and nine years on count 2, enhanced by 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), plus 10 years for the criminal street gang enhancement (§ 186.22, subd. (b)(1)).
On appeal, defendant contends there was insufficient evidence to show the existence of a criminal street gang under section 186.22. In a supplemental brief, he further contends the prosecution's gang expert recited testimonial hearsay that violated his confrontation clause rights. We agree the gang enhancements must be reversed pursuant to People v. Prunty (2015) 62 Cal.4th 59 (Prunty), because there is not substantial evidence "showing an associational or organizational connection that unites members of a putative criminal street gang." (Id. at p. 67.) In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORY
Prosecution's Case
Outside the Store
On the evening of February 27, 2010, brothers Robert Carlin and Joe Carlin, their father Tony Carlin, and Joe's girlfriend Blanca Gamez were gathered at the home of Robert and Joe's sister. Sometime after 8:00 p.m., Joe and Gamez gave Robert and Tony a ride to the store. They parked 12 to 15 feet to the right of the front door of the store.
Because Robert, Joe, and Tony Carlin share the same last name, we sometimes refer to them by their first names. No disrespect is intended.
As Robert entered the store, Francisco Zamora and defendant were exiting. Zamora bumped into Robert. Robert immediately turned around and exited the store, following Zamora and defendant. Gamez believed they were saying something to each other, but she did not hear what they were saying. Gamez told Joe, "Oh, no. I think they're going to fight." Joe could see there was a problem because of how they moved. According to Joe, in gang language, when someone bumps into someone else it means "[t]hey want to fight."
Joe got out of car, walked up to the men, and said, "What's up, Dog." Calling someone "dog" who is not a Bulldog gang member is an insult. This phrase is also used by Bulldogs to identify themselves. Both Robert and Joe were Eastside Fresno Bulldog gang members.
Defendant responded, "What's up, ese?" "Ese" is Spanish for "S," which refers to a Sureño or Southerner and is used by members of those gangs to identify themselves. Defendant raised his arm and shot at Joe. The first shot hit Joe in the groin and the second shot missed him. Joe told Robert to "turn around and run." Defendant turned toward Robert, pointed the gun at him, shot one time, and missed him. As Robert turned to run, defendant shot at Robert again. The second bullet hit Robert in the arm and went into his chest. Robert ran into the convenience store, collapsed on a metal display, and fell to the ground.
Joe started crawling toward defendant and asked, "What ... is your problem. What's going on." Defendant pointed the gun at Joe again, shot, and missed him. Defendant shot at Joe a second time, hitting him. Defendant continued firing at Joe until the gun made a "click, click, click" noise, indicating the gun was out of bullets. Defendant fled. According to Joe, each shot occurred approximately one to two seconds apart. He estimated defendant fired his gun about six times at a distance of only a few feet away.
Joe Carlin could not identify at trial the person who shot him. He also denied the crime was gang related. Gamez did not see what happened because she looked down when the shooting occurred. Gamez did not see any weapons, and did not see who fired.
The parties stipulated Robert Carlin died from a single gunshot wound that went through his left arm and into his chest. Police noted Robert had a visible Bulldog-gang tattoo the night of the shooting.
Inside the Store
Fresno police spoke with Tony Carlin after the shooting. Tony had been inside the store during the incident. He told police that shortly before the shooting he heard someone say "azul," which means "blue" in Spanish. Police believed Tony was under the influence of alcohol when they spoke with him.
At trial, Tony claimed he did not hear any arguing or gunshots. He saw Robert "c[o]me flying into the room" and fall onto the floor. Tony denied either of his sons were Bulldog gang members or had Bulldog tattoos, and he denied hearing someone yell "azul" prior to or during the incident.
Francisco Zamora
Zamora voluntarily came into the police department on March 1, 2010, for police questioning. During questioning, Zamora gave detectives defendant's name and identified him in a photograph. Zamora identified defendant as the person who had perpetrated the shooting and told officers where defendant lived. Although Zamora denied being a gang member, he identified defendant as a Sureño.
Zamora did not know defendant well, but he was with him on the night of the shooting. They went to the store to purchase cigarettes. As Zamora and defendant exited the store, Zamora passed Robert closely but they did not bump shoulders. Robert said "What's up, dog?" to Zamora. Zamora told police he did not interpret the initial exchange as a challenge to fight.
According to Zamora, "[T]hat's when [he and defendant] heard [Joe Carlin], coming ... at [defendant]." Zamora demonstrated how Joe rapidly advanced toward them with a menacing gesture, saying "What's up, dog?" Zamora told police, "When [Joe] start saying what's up, dog, towards [defendant], ... I believe [defendant] said, what's up, ese." According to Zamora, defendant was identifying himself as a Sureño. Zamora fled when defendant started shooting.
At trial, Zamora denied knowing defendant and he testified inconsistently as to whether he was present during the shooting. When shown surveillance video from the store, Zamora agreed an individual with a plaid flannel shirt and a blue hat looked like him, but he claimed he could not recall many of the events depicted in the video. He also denied discussing the incident with police.
Surveillance Video
Law enforcement obtained surveillance video footage from inside the store. In the video, defendant and Zamora are seen exiting the store as Tony and Robert enter. Zamora and Robert pass by each other, turn around, and stare at one another. Robert walks out of the store toward Zamora. Robert and Zamora walk away from the store to the left, out of the camera's view.
Although Zamora testified inconsistently as to whether the man in the blue hat and plaid flannel shirt depicted in the surveillance video was him, he later acknowledged it was him.
Two males behind the sales counter, a customer standing at the register, and Tony Carlin look toward the front door of the store. A couple of seconds later, both males behind the sales counter and the man near the register duck down. Tony Carlin does not. Robert reenters the store clutching his abdomen and collapses onto the floor. At the same time, a person in a white T-shirt appears on the ground outside the store.
The Gang Evidence
Fresno Police Detective Rafael Villalvazo testified as a gang expert for the prosecution. According to Villalvazo, Sureño refers to all gangs located south of Bakersfield. The Sureños have an allegiance to the Mexican Mafia, both inside and outside of prison. When the Mexican Mafia sets out rules, such as those requiring gangs to sell "dope" or target a certain individual, the Southern California gangs or Sureños have to follow them.
Sureño gang members generally wear white, blue, or black clothing, and wear clothing affiliated with the Los Angeles Dodgers, the Dallas Cowboys, the Los Angeles Kings, and the Los Angeles Lakers. The universal gang sign for Sureños is three fingers. Sureños generally have tattoos related to the number three or 13, which stand for the Mexican Mafia. The primary rivals of the Sureños are the Norteños, the Bulldogs in Fresno, and any Asian or African-American gang depending on where they live.
Villalvazo testified the term "Sureño" is a general term. The gang is broken down by sets or subsets. There are just over 1,500 Sureños in Fresno County in 20 different subgroups. In the City of Fresno, there are 100 Sureños in four to six different subgroups, such as Playboy Sureños and Sureños 13. For all subsets north of Bakersfield, if someone is a member of one subset, they are not necessarily a member of another subset. However, according to Villalvazo, all subsets are considered Sureños because they share common rivalries. In the City of Fresno, the Bulldogs outnumber the Sureños. Because they are outnumbered, it is not unusual for Sureños from different subsets to hang out together. In Fresno County, Sureños do not claim a specific territory, they hang out where they live.
Villalvazo opined defendant was a member of the Sureños based on multiple indicators, including: police contacts where defendant admitted to being a VLS (Varrio Loco Sureño) gang member; defendant's gang-related tattoos, including "VLS" on his arm and his abdomen, the phrase "Show no mercy. Recieve [sic] no mercy," on his chest, dots representing the number three or 13, and "SUR," which stands for "South" or "Sureño"; multiple self-admissions in jail classifications and booking forms; defendant's prior contacts with police where he was documented wearing gang colors; and a photograph of defendant with other known Sureño gang members who were "throwing" gang signs and wearing blue.
Villalvazo also opined defendant was a member of VLS, a subset of the Sureños from Madera County. There are 70 VLS members in Madera County, and between 30 to 40 members in the City of Madera. Villalvazo stated members of the VLS subset were also members of the Sureños. He was not asked to explain the basis for his opinion.
According to Villalvazo, the primary activities of the Sureños include: shootings against rival gang members, the intimidation of rival gangs, robberies, homicides, rapes, assaults, thefts, and burglaries. To prove the Sureños were a criminal street gang within the meaning of the Street Terrorism Enforcement and Prevention Act (STEP Act; § 186.20 et seq.), the prosecution offered the Fresno County criminal convictions of four men. Villalvazo opined the perpetrators of these offenses were Sureño gang members.
On August 4, 2006, Domingo Zaidivar Cardona was convicted by a guilty plea to firearm possession by a felon. On May 27, 2010, Juan Ramon Valencia pleaded guilty to two counts of arson of property. He was found guilty by a jury of possession of flammable materials and a gang enhancement. On October 16, 2008, Pedro Garcia Castro pleaded no contest to assault with a firearm, using a firearm during the commission of a felony, and a gang enhancement. On March 4, 2010, Miguel Angel Bautista pleaded guilty to an attempted murder and an enhancement for using a firearm in the commission of a specified felony.
With respect to the shooting, Villalvazo explained the significance of the events as they were depicted in the store surveillance video. He testified the video showed defendant make contact and stare down the victim. According to Villalvazo, staring at someone, particularly someone who may be a rival, is a challenge and shows disrespect. Robert Carlin felt he was being challenged and disrespected, so he turned around.
We cannot ascertain from the surveillance video whether defendant was staring at Robert Carlin, but it does appear Zamora was staring at Robert.
Addressing a hypothetical mirroring the facts of the instant case, Villalvazo opined a shooting perpetrated under similar circumstances would be committed for the benefit of a criminal street gang, specifically, the Sureños. According to Villalvazo, shooting a rival gang member would elevate the perpetrator's reputation and would intimidate the victim's gang.
Defense's Case
Defendant testified on his own behalf. Defendant was from Madera, but at the time of the shooting he had been staying with his girlfriend, who lived across the street from the convenience store. Defendant admitted he was an active Sureño gang member at the time of the shooting. He knew Fresno was Bulldog gang territory, and he was likely to encounter a Bulldog. Defendant was not obligated to fight a Bulldog, but would defend himself if he was hit first.
According to defendant, as he and Zamora were exiting the store, Robert was entering. As they passed one another, Robert said, "What's up, dog?" Defendant interpreted this greeting as Robert identifying himself as a Bulldog. Defendant did not respond. Robert followed them out of the store and approached Zamora; defendant thought there was going to be a fight. Defendant testified Joe Carlin jumped out of an SUV and started running toward defendant.
As he ran, Joe stated, "What's up, dog?" and, according to defendant, moved his hand toward his back pocket. Defendant thought Joe was reaching for a weapon and became afraid for his life. Defendant pulled a gun from his pocket and fired five shots without aiming. He did not intend to shoot anyone, but wanted to scare Robert and Joe into backing off. Defendant denied saying, "What's up, ese," or "azul." After defendant was arrested, he told Detective Benson during police questioning that he had acted in self-defense. Defendant expressed remorse for the shooting.
Defense's Gang Expert
Gang expert Michael Fitzgerald, a former Fresno police officer, testified for the defense. Fitzgerald believed the shooting was gang-related, but opined the victims were the initial aggressors. In the surveillance video, it appears a confrontation ensues between Robert Carlin and Zamora. Robert made the initial movement of looking back toward Zamora, and it was Robert who stepped forward toward Zamora in an aggressive manner.
According to Fitzgerald, nothing about the clothing defendant had worn during the incident readily identified him as a gang member, and while defendant's tattoos identified him as a VLS gang member, they were not visible during the incident. However, Fitzgerald testified a Bulldog and a Sureño exchanging greetings similar to those exchanged by Robert and defendant would do so as a way of identifying their gang affiliation and challenging one another.
Prosecution's Rebuttal
Detective Andre Benson testified in rebuttal. During police questioning, defendant initially told Benson nothing had happened. Eventually, defendant admitted he had shot Joe and Robert Carlin but claimed he did so because he was scared. Defendant denied hearing anyone say "dog." He felt threatened when Joe exited the vehicle. Defendant stated he had fired five shots without aiming. He agreed he had probably shot Joe while Joe was on ground. Defendant did not know why he shot Robert . Defendant told Benson he hid the gun under a child's slide behind his residence, then sold it to an unknown Black male. He said he had given away the clothing he was wearing and he had cut his hair the day after the shooting.
DISCUSSION
I. There Was Insufficient Evidence to Support the Existence of a Criminal Street Gang Pursuant to the Gang Enhancements
Section 186.22, subdivision (b), establishes a sentencing enhancement for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." To establish the existence of a "criminal street gang" within the meaning of section 186.22, the People must prove: "(1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity." (People v. Duran (2002) 97 Cal.App.4th 1448, 1457; see § 186.22, subd. (f).)
Here, defendant challenges the sufficiency of the evidence showing the primary activities and pattern of criminal activity of the Sureños, as well as the jury's finding defendant's crimes were committed for the benefit of the Sureños. We agree the evidence fell short with respect to the predicate offenses used to show the Sureños have engaged in a pattern of criminal gang activity. Although defendant directs us to this court's decision in People v. Williams (2008) 167 Cal.App.4th 983, our Supreme Court's more recent decision in Prunty squarely addresses the issue he raises and compels reversal of the true findings on the gang enhancements. We therefore need not address whether substantial evidence supports the primary activities of the gang or whether the evidence was sufficient to show defendant's underlying crimes were committed for the benefit of the gang.
In Prunty, our Supreme Court held "the STEP Act requires the prosecution to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang." (Prunty, supra, 62 Cal.4th at p. 67.) Prunty explained, "[W]here the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Id. at p. 71.)
Here, the prosecutor argued defendant committed the underlying crimes for the benefit of the Sureños, rather than defendant's subset, VLS. The prosecutor's gang expert testified Sureños in the City of Fresno and in the Fresno County area comprise various subsets, and members of one subset are not necessarily members of another. Despite testifying Sureños comprise various subsets, the expert characterized the perpetrators of the predicate offenses as "Sureños" without identifying what subset these individuals claimed membership to. Because the prosecutor's gang expert failed to identify the relevant subsets, and he provided no evidence that could connect the relevant subset or subsets to one another, to the overarching Sureño gang, or to defendant's subset, VLS, we must strike the jury's true findings on the gang enhancements.
Analysis
To establish the existence of a "criminal street gang" within the meaning of the STEP Act, the prosecution must show, among other elements, that the gang has engaged in a pattern of criminal activity. A "pattern of criminal gang activity" is a gang member's individual or collective commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more enumerated predicate offenses during a statutorily defined time period. (§ 186.22, subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 9-10.) The predicate offenses must have been committed on either separate occasions, or by two or more persons. (Loeun, at pp. 9-10.)
Here, to prove the Sureños have engaged in a pattern of criminal activity, Villalvazo testified to the Fresno County criminal convictions of four men he opined were Sureños. On August 4, 2006, Domingo Zaidivar Cardona was convicted by guilty plea of firearm possession by a felon. On May 27, 2010, Juan Ramon Valencia pleaded guilty to two counts of arson of property and was found guilty by a jury of possession of flammable materials and a gang enhancement. On October 16, 2008, Pedro Garcia Castro pleaded no contest to assault with a firearm, using a firearm during the commission of a felony, and a gang enhancement. On March 4, 2010, Miguel Angel Bautista pleaded guilty to an attempted murder and an enhancement for using a firearm in the commission of a specified felony.
We initially observe no foundation was elicited to support Villalvazo's opinion that the perpetrators of these offenses were Sureño gang members. Undoubtedly, the court records admitted to prove the convictions occurred is highly reliable evidence of the fact Cardona, Valencia, Castro, and Bautista committed crimes falling within the offenses enumerated under section 186.22, subdivision (e). However, these records fail to specify which gang any of the convicted defendants belonged to. Because Villalvazo was not asked to explain the basis for his opinion, the jury had no way to evaluate whether Villalvazo's opinion was based on reliable evidence. "[A]n expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based." (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510; see Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923 ["Like a house built on sand, the expert's opinion is no better than the facts on which it is based"].)
Assuming Villalvazo's testimony was nonetheless sufficient to show the perpetrators of the offenses were Sureños, the evidence was not sufficient to prove an associational or organizational connection uniting the relevant subsets. (Prunty, supra, 62 Cal.4th at p. 71.) Here, VLS was not shown to be a criminal street gang. The gang expert did not testify the perpetrators whose crimes were used to establish the predicate offenses were members of VLS. Rather, the record shows, and the parties agree, the prosecutor theorized defendant shot the Carlin brothers for the benefit of the overarching gang, the Fresno-area Sureño street gang.
Nor is this a reasonable inference that can be drawn from the record since the evidence showed VLS is a subset from Madera County, but all of the predicate offenses were based on criminal convictions from the Fresno Superior Court.
According to Villalvazo, "Sureño" is a general term. Villalvazo testified that north of Bakersfield, the Sureños comprise multiple subsets, and there are over 20 subgroups of Sureños in Fresno County, as well as four to six subgroups in the City of Fresno. To prove members of the Sureño street gang have engaged in a pattern of criminal activity (§ 186.22, subd. (f)), Villalvazo adduced evidence of four predicate offenses based on the criminal convictions of Cardona, Valencia, Castro, and Bautista, who he opined were "Sureños." He did not identify the specific subset claimed by these individuals. In light of Villalvazo's testimony, we are constrained to conclude, under our Supreme Court's decision in Prunty, the evidence was insufficient to prove the existence of a unified criminal street gang for purposes of the section 186.22, subdivision (b) gang enhancements.
In Prunty, our Supreme Court "decide[d] what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets." (Prunty, supra, 62 Cal.4th at p. 67.) Prunty held "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Id. at p. 71.) A problem "arises only when the prosecution seeks to prove a street gang enhancement by showing the defendant committed a felony to benefit a broader umbrella gang, but seeks to prove the requisite pattern of criminal gang activity with evidence of felonies committed by members of subsets to the umbrella gang." (Id. at p. 91 (conc. & dis. opn. of Corrigan, J.).)
In Prunty, the prosecution failed to prove the existence of a unified criminal street gang because the predicate offenses—committed by members of alleged Norteño subsets—were not shown to be sufficiently connected to either the subset claimed by the defendant, or to the overarching gang. (Prunty, supra, 62 Cal.4th at p. 69.) The court explained "where the prosecution's evidence fell short [was] with respect to the predicate offenses." (Id. at p. 82.) The gang expert did not describe any evidence showing "collaboration, association, direct contact, or any other sort of relationship among any of the subsets he described." (Ibid.) For example, the gang expert's testimony did not show the alleged subsets "shared information, defended the same turf, had members commonly present in the same vicinity, or otherwise behaved in a manner that permitted the inference of an associational or organizational connection among the subsets." (Ibid.)
The expert's testimony in Prunty also failed to demonstrate "the subsets that committed the predicate offenses, or any of their members, self-identified as members of the larger Norteño association that defendant sought to benefit." (Prunty, supra, 62 Cal.4th at p. 82.) Although there was ample evidence the defendant identified as both a member of a subset of the Norteños and the larger overarching Norteño gang, the expert offered no evidence showing whether the individuals who committed the predicate offenses exhibited behaviors showing their self-identification with the umbrella Norteño gang. (Id. at pp. 82-83.) As such, the evidence was insufficient to prove the relevant subsets were part of the same unified criminal street gang. (Id. at p. 85.)
According to Prunty, the "definition of a 'criminal street gang'—and in particular its requirement of an 'organization, association, or group'—calls for evidence that an organizational or associational connection unites the 'group' members." (Prunty, supra, 62 Cal.4th at p. 85.) "When, as here, the prosecution relies on the conduct of subsets to show a criminal street gang's existence, the prosecution must show a connection among those subsets, and also that the gang those subsets comprise is the same gang the defendant sought to benefit." (Ibid.) This connection may be shown by "evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group." (Id. at p. 71.) The People may also show "the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together." (Ibid.) Or, the People may show "various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization." (Ibid.) Whatever theory the People rely on, "the prosecution must show that the group the defendant acted to benefit, the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same." (Prunty, supra, 62 Cal.4th at p. 81.)
Here, the closest Villalvazo came to describing any sort of organizational or associational connection uniting the various Sureño subsets and the overall Fresno-area Sureños were his generalized assertions Sureños hang out together in Fresno County because they are outnumbered, Sureño subsets have the same enemies, wear the same colors, and use the same identifying numbers and symbols, and Sureños are affiliated with and follow rules set forth by the Mexican Mafia. However, these general conclusions were not sufficient to demonstrate "an organizational or associational connection exists in fact." (Prunty, 62 Cal.4th at p. 79.)
First, Villalvazo testified Sureño gang members in Fresno County "will basically, align with each other just out of commonality. They're small in numbers, so it's not unusual to find Fresno 13 or Playboy Sureno with a Sureno from a different city or county hanging out together. Because they're low in numbers." Villalvazo did not provide any facts to support his assertion that would permit the jury to determine whether the subsets who committed the predicate offenses "'hang out together'" or "'back up each other.'" (Prunty, supra, 62 Cal.4th at p. 78 ["proof that members of two gang subsets 'hang out together' and 'back up each other,' can help demonstrate that the subsets' members have exchanged strategic information or otherwise taken part in the kinds of common activities that imply the existence of a genuinely shared venture"].)
Villalvazo also testified Sureños "[often] won't claim a turf, but an apartment complex or a house where a new member has moved to, and they start to hang out there." This testimony was also too conclusory to be of any assistance to the jury because Villalvazo did not explain whether the relevant subsets have members commonly present in the same vicinity. (See Prunty, supra, 62 Cal.4th at pp. 77-78 [evidence different subsets routinely act to protect the same territory could suggest they are part of a larger organization].)
Second, Villalvazo stated Sureño gang members identify themselves by wearing white, blue, or black clothing, they use common identifying numbers, such as the number three or 13 or the roman numeral "X," and subsets of the Sureños are all considered Sureños "based on [common] rivalries with the other gangs." However, as Prunty explained, proof of a common enemy or loosely shared ideology, as well as the use of similar colors, names, and identifying symbols are insufficient to show various subsets are part of the same criminal street gang. (Prunty, supra, 62 Cal.4th at p. 75.) The "subsets of a criminal street gang must be united by their activities, not simply by their viewpoints." (Ibid.) No evidence of shared activities between the subsets was adduced by Villalvazo.
Finally, Villalvazo testified the Sureños are aligned with the Mexican Mafia. He explained "there is basically a structure, and it starts in the prison. And with[in] the prison the hierarchy is the Mexican Mafia which controls the prison with Southern California or Sureno gang members within that facility." Villalvazo further explained, "their allegiance falls out onto the streets ... when [the Mexican Mafia] set[s] rules out to the Sureno gang or Southern gang ... they have to follow the rules. They may say everybody's going to deal dope. Or they say you have to have a piece or target an individual."
Prunty considered similar evidence and found it lacking. There, the prosecution's gang expert testified Norteño street gangs were associated with the Nuestra Familia prison gang. (Prunty, supra, 62 Cal.4th at p. 83.) Prunty explained that while such evidence may permit the jury to infer the various alleged subsets shared a common origin, "it does not indicate whether the specific subsets involved in committing the predicate offenses have any ongoing relationship—the kind of relationship that amounts to being part of the same group—with the entity the defendant sought to benefit." (Ibid.)
Here, while Villalvazo's testimony was more detailed than the gang expert's testimony in Prunty, it was not sufficient to demonstrate the existence of a unified group. Villalvazo did not describe any facts tending to show the relevant subsets here follow rules set forth by the Mexican Mafia. (People v. Ramirez (2016) 244 Cal.App.4th 800, 815-816 [expert's general testimony Sureño subsets "aligned [themselves] with the Sureños" was conclusory, and his statement "'Sureños were created by the Mexican Mafia'" was insufficient to show any ongoing relationship between subsets]; see People v. Nicholes (2016) 246 Cal.App.4th 836, 848 ["[a]t a minimum, Prunty requires that the prosecution, in a case involving ... testimony that [a larger organization] operate[s] through subsets, introduce evidence specific to the subsets at issue" (italics added)].) While Villalvazo's testimony may permit a jury to infer the Sureños originate from the Mexican Mafia, it was not sufficient to permit the jury to infer the relevant subsets here share an identity with a larger group or an ongoing relationship with one another. (Prunty, supra, 62 Cal.4th at p. 82.)
The Attorney General contends there is no Prunty issue because the prosecution endeavored to prove the criminal street gang that defendant intended to benefit were the Sureños, rather than VLS or another specific subset, and the evidence was sufficient to prove the Sureños were a criminal street gang. As the Third District Court of Appeal held in People v. Nicholes, supra, 246 Cal.App.4th at page 845, this argument is squarely at odds with Prunty. "[W]here, as in this case, the alleged perpetrators of the predicate crimes under section 186.22(f) are members of particular subsets, the behavior of those subsets' members must connect them to the gang the defendant sought to benefit." (Prunty, supra, 62 Cal.4th at p. 80.) While the prosecutor was not required to prove defendant's crimes were committed for the benefit of the VLS specifically, by theorizing defendant's crimes were committed for the benefit of the Sureños and adducing evidence showing the Fresno-area Sureños comprised various subsets, the prosecutor was required to show a link between the alleged Sureño subsets that committed the predicate offenses, and the larger gang defendant participated in and sought to benefit, the Sureños.
Under Prunty, the evidence here was insufficient to establish the existence of a criminal street gang. Evidence about the actual behaviors, activities, or practices of the relevant subsets "that could reasonably lead the jury to conclude they shared an identity with a larger group" was simply not presented. (Prunty, supra, 62 Cal.4th at p. 82.) We must therefore strike the jury's true findings on the gang enhancements.
II. Admission of the Gang Expert's Testimony Under Sanchez
Although the gang enhancements must be stricken because the People failed to prove an organizational or associational connection to support a finding of a gang under Prunty, defendant contends reversal would also be required because of the gang expert's recitation of testimonial hearsay. (People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).) Defendant further contends the improper admission of testimonial hearsay also prejudiced the "jury's evaluation of [defendant]'s mental state as to the charged crimes [because] [t]he prosecution deemed the evidence critical to the issue of motive and intent" and because defendant asserted he had "acted in self-defense or unreasonable self-defense when confronted by [the] aggressive behavior of the ... victims." Although it does not appear a timely objection was lodged to Villalvazo's expert testimony on the basis of the confrontation clause, we will nonetheless reach the merits of defendant's argument to explain why it lacks merit.
Here, the gang evidence introduced through the prosecutor's expert consisted, in part, of six reports documenting various law enforcement agencies' contacts with defendant between 2004 and 2009. In five of these reports, defendant claimed active or past membership in VLS or the Sureños. The prosecutor also introduced evidence of a 2009 jail classification and a 2010 booking record wherein defendant self-identified as a "VLS Sureño." The People concede, and we agree, this type of evidence is indistinguishable from the evidence discussed in Sanchez and constitutes testimonial hearsay.
Confrontation clause violations are examined under the harmless error standard under Chapman v. California (1967) 386 U.S. 18, 24. Under Chapman, "[t]he judgment must be reversed unless the prosecution can show beyond a reasonable doubt that the result would have been the same notwithstanding the error." (People v. Lopez (2012) 55 Cal.4th 569, 605, citing Chapman, supra, at p. 24.) "[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.'" (People v. Quartermain (1997) 16 Cal.4th 600, 621.) "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 v. Evatt (1991) 500 U.S. 391, 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]." (Id. at pp. 403-404, italics added.)
Excluding the jail classification and booking form, police reports, and other reports documenting defendant's prior contacts with law enforcement, there was substantial evidence defendant was an active gang member. The evidence not subject to exclusion under Sanchez included: defendant's admission of his active gang membership status in his testimony at trial, his multiple gang-related tattoos, a photograph of defendant with individuals wearing gang colors and displaying Sureño gang signs; and Zamora's statement to police identifying defendant as a "Sureño."
Defendant contends an insufficient foundation was laid as to the photograph and that he was impelled to testify in light of "the court's rulings." However, assuming the photograph was not admitted with a proper foundation, we are not persuaded defendant was impelled to testify at trial.
The rulings defendant contends impelled him to testify are the trial court's exclusion of a hearsay statement defendant made during police questioning in which he expressed remorse for the shooting. The trial court held defendant's statement was inadmissible because the statement was not shown to be admissible for a nonhearsay purpose, and because no evidence of defendant's statement, the police interrogation, or defendant's demeanor during the interrogation had been introduced by the People in their case-in-chief. Because the prosecutor elected not to introduce any of defendant's statements made during police interrogation, the trial court held defendant's statements of remorse were inadmissible under the "rule of completeness." (People v. Arias (1996) 13 Cal.4th 92, 156 ["if a party's oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which 'have some bearing upon, or connection with, the admission ... in evidence'"].)
Defendant does not challenge the trial court's ruling and, in any event, we are not persuaded defendant's testimony was "impelled." In view of defendant's admission at trial that he was an active gang member, Zamora's identification of defendant as a Sureño, defendant's gang-related tattoos, and the circumstances of the instant crime, we are not persuaded Sanchez would necessitate reversal of the gang enhancements. The gang evidence rendered inadmissible under Sanchez was "unimportant in relation to everything else the jury considered" in deciding whether defendant was an active gang member and committed the underlying crimes for the benefit of the Sureños. (Yates v. Evatt, supra, 500 U.S. at p. 403.)
We further reject defendant's contention Sanchez would necessitate reversal of his underlying convictions. To the extent some of the gang evidence was inadmissible under Sanchez, evidence relating to the manner in which defendant committed the shootings was sufficiently strong to permit the jury to conclude he acted with premeditation and deliberation. (People v. Hawkins (1995) 10 Cal.4th 920, 957, abrogated on another point by People v. Lasko (2000) 23 Cal.4th 101 [affirming a conviction for first degree murder where evidence of planning and motive were minimal, "if not totally absent," because manner of killing evidence permitted jury to conclude the defendant acted with premeditation and deliberation].) Further, although the gang evidence supports the prosecutor's theory that the shooting was motivated by intergang rivalry, the jury could reasonably draw this same conclusion based on the circumstances of the crime, as the facts of the crime were interpreted and explained by the gang experts. Defendant's argument, as presented, does not persuade us that Sanchez would require reversal of the underlying convictions. --------
DISPOSITION
The gang enhancements (§ 186.22, subd. (b)(1)) attached to counts 1 and 2 are stricken. The trial court is directed to prepare an amended abstract of judgment reflecting these changes and to forward it to all appropriate agencies. In all other respects, the judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.