Opinion
F075199
01-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DANIEL BONILLA, JR., Defendant and Appellant.
Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16901855)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
While intoxicated, defendant Robert Daniel Bonilla, Jr. participated, along with others, in a physical assault on 14-year-old John Doe. Defendant was thereafter charged with attempted murder of John Doe (Pen. Code, §§ 664, 187, subd. (a)) (count 1); battery causing serious bodily injury (§ 243 subd. (d)) (count 2); and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)) (count 3). As to all counts, it was alleged defendant personally inflicted great bodily injury (GBI) on John Doe within the meaning of section 12022.7, subdivision (a), and that each offense was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members under section 186.22, subdivision (b)(1) (section 186.22(b)(1) or § 186.22(b)(1)). The jury convicted defendant of battery causing serious bodily injury (count 2) and assault by means likely to produce GBI (count 3), but found defendant not guilty of attempted murder (count 1). The jury found true each special allegation under counts 2 and 3. In a bifurcated proceeding, defendant admitted he had previously suffered a conviction for a serious or violent felony within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced defendant to the upper term of four years for assault by means likely to produce GBI (count 3), which was doubled to eight years for the prior strike (§§ 245, subd. (a)(4), 667, subd. (e)(1)). An additional, consecutive three-year term was imposed for the true finding on the GBI enhancement under section 12022.7, subdivision (a), but this term was stayed under section 654; the court also imposed a 10-year term pursuant to the true finding on the gang enhancement. As to count 2 for assault, the court imposed a four-year term, which was doubled to eight years for the prior strike (§§ 243, subd. (d), 667, subd. (e)(1)), an additional three years was imposed for the GBI enhancement (§ 12022.7, subd. (a)), and an additional 10 years was imposed for the gang enhancement (§ 186.22 (b)(1)). The sentence and enhancements imposed as to count 2 were stayed under section 654. The aggregate term imposed was 18 years.
On appeal, defendant claims the trial court erred in admitting portions of the gang expert's testimony relevant to showing the enhancement under section 186.22, subdivision (b)(1). Specifically, defendant contends the expert's opinion certain predicate offenses were committed by Northside Pleasant gang members constituted case-specific, testimonial hearsay that violated state law and the Sixth Amendment's confrontation clause.
The People dispute the gang expert relayed case-specific facts to the jury to support his opinion. The People maintain the expert's testimony about the predicate offenders was background information that may be based on hearsay without violating state law or the confrontation clause pursuant to the California Supreme Court's decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
We conclude that, even assuming the trial court erred in admitting some portions of the gang expert's testimony, that error was harmless beyond a reasonable doubt. We affirm the judgment.
FACTUAL SUMMARY
I. Assault on John Doe
On March 6, 2016, John Doe, who is associated with a Fresno gang called Muhammad, was walking with three friends through Northside Pleasant gang territory—a rival of Muhammad. The three friends were walking a bit in front of John Doe when he was approached by a car. One of the persons in the vehicle, later identified as Jarmal Packard, asked John if he was "Lil H from Walnut Snoova." John understood the question to be whether he was part of Walnut Street Hoover gang, but John was not with that gang, so he answered "no"; at this point, John's friends had run away. Jarmal and defendant, whom John recognized as Lil' Action (also known as Jlokz) and Lil' Rob, respectively, exited the car and assaulted John. John recognized Lil' Rob through videos of Lil' Rob on the internet, which other people had shown John. John later told the investigating detective he knew defendant/Lil' Rob as an East Lane Crips gang member—a gang that is not friendly to John. As for Jarmal/Jlokz, he and John had been at juvenile hall at the same time, although they had been in different units; John assumed Jarmal/Jlokz was a Northside Pleasant gang member, a gang not friendly to John. During the assault, John was hit on his head from behind; he fell to the ground, went in and out of consciousness, and awoke in the hospital, where he was treated for facial bone fractures and a lip contusion.
John's friend, C.J., one of the three friends John had been walking with that day, was interviewed by Detective Mayo a few days after the assault. C.J. told Mayo that he, John, and two other friends were walking on Fairmont Street, and they saw an old, white car that looked suspicious. John walked away from the group and, although C.J. had turned a corner on the street, he then looked back to see if John was coming with them. When he looked back, he saw people get out of a car and attack John. He described them as a "light skinned dude with dreads," a "dark boy with a low[-]cut afro," and a third person wearing blue jeans who C.J. did not see as well because the other two were in front of him. They started punching John, and he ended up on the sidewalk; the man with the dreadlocks held John down, stomped on him, and grabbed his head. C.J. and his friends went back to get John after those assaulting him drove away—C.J. thought those in the car were going to get guns, so C.J. wanted to get John out of the area. They walked John to his house, no one answered, so John walked to a neighbor's house, and C.J. and the rest of the group left.
At trial, C.J. testified for the defense and recanted what he told Mayo during his interview about witnessing any part of the assault. According to his trial testimony, he and three friends were walking with John on Fairmont Street to visit a girl. John was walking slower than the rest of the group, so they did not stay together. The three friends turned left and realized John was not with them anymore. C.J. checked back around the corner and saw John on the ground. C.J. did not see any vehicles in the area, except "vehicles just driving past like normal." John had injuries to his head and he was confused, so they walked with him to a neighbor's house. Although he thought he saw two people in a car passing by on the street, C.J. did not see what happened to John. His description to Detective Mayo of the three individuals he saw assault John was based solely on photographs John's mother showed C.J. when he was at the hospital visiting John; all the facts about those who committed the assault that C.J. related to Mayo were based on what John's mother told him, not his own observations.
II. Prosecution's Theory on Gang Enhancement Allegations
As set out below, the prosecution offered evidence Jarmal/Jlokz was a Northside Pleasant gang member, defendant was an East Lane Crips gang member, and both were rivals of the gang with whom they believed John was associated. Evidence indicated that Northside Pleasant and East Lane Crips gang members are part of the MUG gang alliance, they often associate with each other, and are expected to back each other up. There was evidence that John was in Northside Pleasant territory when he was assaulted. Expert testimony indicated Jarmal/Jlokz instigated the assault, assisted by defendant, to let everyone know, including the victim, rivals should not come into the neighborhood. The prosecution offered expert testimony that an assault, such as the one on John, would benefit each of the gang members who participated and their respective gangs.
III. Relevant Gang Testimony at Trial
A. Detective Mayo
Detective Mayo testified both as the investigating officer on the case and as a gang expert. She was familiar with defendant, known as Lil' Rob, before this case as she had had multiple personal contacts with him, one of which was in September 2014 when she interviewed him as part of a criminal investigation; during that interview, defendant admitted to her that he was an East Lane Crips gang member. Mayo observed a tattoo on his neck with the initials "LST" and a diamond tattoo on the left side of his neck. At the time she interviewed defendant, he lived in Northside Pleasant territory rather than in East Lane Crips territory because he felt there was a lot of "fakeness" in the East Lane Crips neighborhood at the time. Mayo also had contact with defendant in 2012 when he was in a vehicle with Northside Pleasant gang members. She had seen photographs of defendant taken with other gang members from Modoc Boys, Northside Pleasant, and the Dog Pound. Based on her training and experience with Black gangs as part of the Multi-Agency Gang Enforcement Consortium (MAGEC) Unit, where she worked for two years, Mayo indicated defendant's tattoos represent to people that he is an East Lane Crips member; the diamond is a common symbol used by Six Deuce Diamond Crips and East Lane Crips. Mayo explained East Lane Crips and Northside Pleasant gang members work together and frequently associate.
B. Detective Curtis Davis
Detective Davis has worked with the Fresno Police Department since 1994; he has worked within the MAGEC unit since 2006. In November 2012, he was assigned to the Violent Crime Suppression unit when he had contact with defendant. Davis noted defendant was with Javonte Askew, whom Davis had contacted on prior occasions and knew to be an East Lane Crips gang member, Oshea Pullen who was on juvenile probation at the time and had gang restrictions, and Eric Skinner who had "E" and "S" tattooed on his right and left wrists, respectively. According to Davis, these tattoo symbols are associated with the East Lane Crips. Defendant admitted to Davis he was an East Lane Crips member, he had been involved with the gang for four years, and he was childhood friends with Askew.
C. Officer David Wilkin
Officer Wilkin is an officer with the Fresno Police Department who was assigned to the Crime Suppression Team in southwest Fresno on July 30, 2012, when he stopped a vehicle containing Eric Simons, Collin Stowers, Jarmal Packard, and Joseph Packard. Stowers had a tattoo of a diamond with the numbers "4" and "5" on his left arm; Simons had a tattoo of "SBC 900" on his left arm.
D. Sergeant Michael Smith
In May 2012, Sergeant Smith contacted defendant as part of a traffic stop on Marks Avenue in Fresno. There were three people in the vehicle: Tyrone Williams, Javonte Askew, and defendant. Askew had been involved in a burglary where several firearms were stolen, and he was wanted on that case. He was also involved in a shooting that had occurred in April 2012 in southwest Fresno. Smith was also familiar with defendant by name due to defendant's association with other individuals with whom officers had dealings.
E. Officer Michael Aguilar
Officer Aguilar was working for the Violent Crime Impact unit of the Fresno Police Department on May 28, 2014, when he made contact with a vehicle in northwest Fresno with four people inside, including defendant, Yohonas Kahassay, and two women—one of whom was defendant's girlfriend. Later testimony by gang expert Fry indicated Yohonas Kahassay is a self-admitted Northside Pleasant gang member.
F. Detective Miguel Archan
Detective Archan was assigned to the Fresno Police Department Gun Unit in December 2015 when he contacted defendant. He went to a residence on Ashlan Avenue in Fresno where he contacted defendant, Davon Crockett, and William Harris. Defendant told Archan he knew he was not supposed to be hanging out with other gang members pursuant to his probation conditions, but they were making a rap video.
G. Detective Zebulon Price
Detective Price, currently assigned to the MAGEC Unit, testified as a gang expert and as a witness with personal knowledge about Jarmal/Jlokz. He explained there is a gang alliance called MUG, which is made up of six gangs found in different areas of Fresno—the gang alliance is not predicated on geographical proximity. The "M" in the MUG alliance stands for the Modoc gang, "U" is for the U Boys gang, and "G" is for the Garrett Street gang. In addition, the alliance includes East Lane Crips, the Dog Pound gang, and Northside Pleasant. It is common for MUG alliance members to do things together and support each other. He noted diamond tattoos are associated with East Lane Crips and Northside Pleasant.
The rival alliance is TWAMP, which associates approximately 12 smaller gangs, including Strother, Fink White, Cletty Mob, Villa Posse, Lee Street, Gove, Lotus, and Muhammad. The Muhammad refer to themselves as Hoover or Walnut, Hoover from Walnut, or 107 Hoover from Walnut. MUG alliance members have, in the past, come together to perform different types of crime, generally a violent act toward members of the other alliance. Price has never seen MUG and TWAMP members associate, nor has he seen family members in gangs within completely different alliances.
Price made a vehicle stop in March 2016. Jarmal Packard, his brother Joseph Packard, and Darreante Johnson were in the car. Based on his personal contacts and training, Price opined Joseph Packard is a U Boy member and Jarmal is with Northside Pleasant. Jarmal has a tattoo of an "N" and a "Y" on his hand as well as a tattoo of a New York Yankees logo.
H. Detective Robert Fry
Detective Robert Fry was the prosecution's principal gang expert. He testified on Black criminal street gangs in Fresno, but focused most exclusively on Northside Pleasant and East Lane Crips. Fry testified extensively about his training and experience with Black gangs in Fresno, his knowledge of gang culture and gang alliances, and his process for validating individuals as members of particular gangs. He also testified at length about the background of Northside Pleasant and East Lane Crips gangs, each gang's pattern of criminal gang activity, the specific gang membership of Jarmal/Jlokz and defendant, and he opined hypothetically about whether conduct like that charged here would have been committed for the benefit of, in association with, or at the direction of the two gangs. The multiple facets of his testimony are topically summarized below.
Detective Fry is employed with the Fresno Police Department in the MAGEC unit. He explained his familiarity with the MUG and TWAMP alliances and indicated he has talked to or interacted with no less than 1,000 gang members, including at least 30 Northside Pleasant members. When his department makes an arrest for a gang-related crime involving Black gangs within Fresno, Fry is tasked with preparing a gang packet to prove whether a subject is a gang member. To do so, he compiles information from the Fresno Police Department Records Management System (FPDRMS), which lists subjects' information, their associations, and any contacts they have had with law enforcement. He also reviews police reports written by patrol officers or detectives, and he reviews social media—primarily Facebook—to view photographs of certain gang members they have posted publicly. He uses social medial to look at photos of gang members associating with one another, reviewing comments made by gang members about their current rivalries, or talking about gang-related crimes: "Gang members also post photos of themselves using hand signs, as well as typing some kind of animation or wording to represent their gang."
Fry validates individuals as gang members based on factors such as whether a subject is arrested with known gang members or associates with known gang members; whether the subject has been identified as a gang member by a reliable source, or has been photographed displaying hand signs with other gang members; whether the subject has self-admitted gang membership, written about a gang through graffiti, or been on a "hit list" or gang document; and whether the individual has gang tattoos or wears gang clothing.
As for gang culture, Fry explained gang members thrive on respect. They may lose respect or "lose face" if they do not act on challenges from rivals. For example, if they see a rival gang member, they may act on it by shooting or assaulting that rival. Maintaining respect requires the gang member to act upon any perceived disrespect, usually in violent ways. Respect is gained, generally, from one's own gang or rival gang members through acts of violence - the more respect a gang member has, the more respect the gang has as a whole. Gang members also gain respect from citizens and witnesses in their neighborhoods who refuse to cooperate in gang investigations due to fear of retaliation.
1. Northside Pleasant
In the 1970's, the Los Angeles Diamond Crips gang moved several members to the Fresno area. That group split into different factions—one faction moved to North Fresno and became Northside Pleasant, and the other faction moved to East Fresno and became the East Lane Crips. Northside Pleasant has approximately 75 active members, and their primary rival is the Strother Boys gang. Northside Pleasant claims territory at the 4500 block of North Pleasant Street, and most Northside Pleasant gang members are located within the intersection of Fairmont and Holt Streets. The assault in this case occurred "in the heart" of Northside Pleasant territory. Gang members identify by the number 45 or 4500, letters or symbols of the New York Yankees, and the letters "Y," "YN," and "N." The gang's hand signs including making the letter "N," or holding five fingers up on one hand and four fingers on the other. Hand signs are used by gang members to represent their gang or to disrespect another gang: "using hand signs" is "putting it out there for everyone to know that they are gang members, and they are representing their hood." The gang's identifying clothing includes New York Yankees apparel and the color blue.
Northside Pleasant's primary criminal activities include possession and sale of narcotics, possession of illegal weapons, robbery, human trafficking, and felony assault, which includes physical assault, shootings, and stabbings.
2. Northside Pleasant's Pattern of Criminal Gang Activity
Evidence of Northside Pleasant's pattern of criminal gang activity was introduced through certified court records of three individuals. The admitted court records showed Donald Henderson had been convicted of possession of a firearm. Fry opined Henderson was a Northside Pleasant gang member based on his investigation into Henderson and multiple prior contacts with Henderson, including his arrest of Henderson several times. Fry also researched Henderson for purposes of this case and prepared a gang packet. He could not identify the specific dates of his prior contacts with Henderson, nor did he note those dates in the gang packet he prepared. Fry explained he validated Henderson by researching him for this case, talking with other officers, and reviewing officer reports. Fry based his opinion on the facts that Henderson associates with known gang members, he has been arrested with known gang members, he wears gang clothing, and there are photographs showing him pictured with other known gang members and displaying gang hand signs.
Admitted certified court records showed Collin Stowers had pleaded guilty to assault with a firearm and admitted his crime was committed for the benefit of, at the direction of, or in association with a criminal street gang section 186.22(b)(1). The records do not specify Stowers's gang association, but Fry opined Stowers was a member of Northside Pleasant. Fry had three or four prior personal contacts with Stowers in the Fairmont/Holt area of Fresno where John Doe was assaulted and in the area of Regency and Gates, a location where Northside Pleasant members congregated at that time.
Admitted certified court records also showed Gary Banks, with whom Fry had had no personal contact, had been convicted of home invasion robbery. Fry opined Banks was a Northside Pleasant gang member based on his research showing Banks had self-admitted being a Northside Pleasant member, he had a tattoo of "NY" on his hand, which represented Northside Pleasant, and he associated with known gang members.
3. Jarmal Packard (Jlokz)
In determining that Jarmal was a Northside Pleasant gang member, Fry had located several photographs of Jarmal that were admitted into evidence. Jarmal's Facebook username is "'Jlokz the Goer,'" and it featured multiple pictures of Jarmal with indicia of Northside Pleasant, including captions and writing on the photographs related to Northside Pleasant and of Jarmal making hand signs associated with Northside Pleasant and wearing New York Yankees apparel. Fry also considered Detective Wilkin's testimony he had witnessed Jarmal in a vehicle with several other gang members, which shows Jarmal associates with known gang members, including Collin Stowers, who is a Northside Pleasant, and Eric Simmons who is a Stroller Boys Crips, a Bakersfield gang. Fry also considered Detective Price's testimony he had seen a "YN" tattoo on Jarmal's hand, which represents Northside Pleasant. Based on this testimony and the social media photographs, Fry opined Jarmal is an active Northside Pleasant gang member.
4. East Lane Crips
East Lane Crips is a faction of the Los Angeles Diamond Crips who resettled on the southeast side of Fresno in the 1970's. They claim the 4800 block of East Lane, have approximately 45 active members, are part of the MUG alliance, and their main rivals are members of the TWAMP alliance. East Lane Crips identifies with the color blue, their signs and symbols include the numbers "4800" and "48," the letters "ELS," "East Lane Street," "LS," or "Lane Street," and they also use the letters "EB" for "Everybody Killer." East Lane Crips's primary activities include possession of narcotics, possession of illegal firearms, burglary, vehicle theft, and felony assault, which includes physical assault, shootings, and stabbings.
5. East Lane Crips's Pattern of Criminal Gang Activity
Certified court records of three individuals Fry opined were East Lane Crips members were admitted to show East Lane Crips's pattern of criminal gang activity. Certified records relating to Nicholas Smith were introduced as People's exhibit No. 23, which showed he was convicted in July 2015 of vehicle theft in violation of Vehicle Code section 10851, subdivision (a). Although Fry had no personal contact with Smith, he opined Smith is an active East Lane Crips member based on his research, which revealed Smith's prior contacts with law enforcement, tattoos, prior arrests, and his associates.
Certified court records were admitted as People's exhibit No. 24, which showed Michael Smith was convicted in June 2015 for being a felon in possession of a firearm in violation of section 29800, subdivision (a)(1). Although Fry had no personal contacts with Michael Smith, he had reviewed police reports and records contained in the FPDRMS and opined he was an active East Lane Crips member. His research revealed Michael Smith had a tattoo of "DCG" on his arm, which stands for Diamond Crips Gangster, he had self-admitted to an officer he was East Lane Crips, and he had worn gang clothing during prior contacts with law enforcement.
Certified court records were admitted as People's exhibit No. 25, which showed Javonte Askew was convicted in June 2014 of burglary in violation of section 459. Fry had two personal prior contacts with Askew, once during a traffic stop and another time during a service call. Fry's contacts with Askew informed his opinion that Askew was an active East Lane Crips member, but Fry's opinion was also based on his research, which showed Askew was a self-admitted East Lane Crips member, he had been contacted with other gang members, and he had been arrested with other gang members. Fry had also seen pictures of Askew using gang hand signs and wearing gang clothing that included a New York Yankees cap.
As for defendant, Fry had spoken to and contacted him at least five different times, primarily in the Fairmont and Holt area, but also in the 4800 block of East Lane. In February 2013, Fry had contacted defendant in an apartment complex near Clinton and West streets; he was with several Dog Pound gang members, Javonte Askew, and Ernest Dean (a Modoc Boy gang member). Fry prepared a gang packet on defendant that was compiled by searching social media including Facebook and YouTube. Photographs and videos of defendant admitted into evidence showed defendant with other Northside Pleasant gang members, including Collin Stowers. Among the videos was one with the words "'Free Javonte,'" which was significant to Fry because Askew is an East Lane Crips gang member who was incarcerated at that time. Another video showed defendant making the letter "E" with his right hand to represent "East Side." One of the videos was filmed at the Ranchwood apartment complex, which Fry explained he knew was in East Lane Crips territory as he had been to that complex many times. Multiple social media photographs were admitted as exhibits and showed defendant pictured with other known Northside Pleasant, East Lane Crips, and Dog Pound gang members—all part of the MUG alliance. Based on all of this, and testimony from Detective Mayo, Detective Aguilar, and Sergeant Smith about personal contacts they had with defendant, Fry opined defendant was an active member of East Lane Crips.
6. Whether Defendant's Charged Conduct was Committed for the Benefit of, at the Direction of, or in Association with a Criminal Street Gang
Fry testified defendant's assault on John was intended to benefit both Northside Pleasant and East Lane Crips: "By [defendant] exiting the vehicle and assisting [Jlokz] and assaulting a rival gang member [John Doe], it shows that [this] would definitely benefit his gang by letting everyone know, letting the victim know you do not come in our neighborhood if you're a rival gang member. [¶] ... [¶] You have [Jlokz] who is a validated Northside Pleasant Street gang member and you have [defendant] who is a validated East Lane Crip[s] member. You have two gang members associated together to commit a violent crime." This evidenced an intent to promote, further, or assist their respective gangs: "By them assaulting a rival gang member[,] that promotes their gang. That gives them more respect." A gang member believes that allowing a rival to walk in "someone else's neighborhood or territory" without acting upon it shows weakness.
Fry explained it is expected that gang members will back each other up—it is very important that gang members can trust each other. Assisting a fellow gang member to assault someone would benefit the assisting gang member because it causes fear to the victim and the friends of the victim. Hypothetically, Fry testified if a carload of people including two known aligned gang members get out of the vehicle along with a third unidentified person to assault a perceived rival, the aligned gang members are acting in association with their gangs. It is not unusual for Northside Pleasant and East Lane Crips to work together—members from those two gangs would be expected to back each other up.
IV. Prosecution's Closing Argument
In closing argument about the gang enhancement allegation, the prosecution focused on its theory that defendant benefitted and acted in association with Northside Pleasant by getting out of the car to help Jarmal (moniker, Jlokz) assault John:
"Before we go to that let me just kind of explain to you in general. There's two gangs, Northside Pleasant, East Lane. In order for you to even consider the gang enhancement it needs to be proven that there is a gang in Fresno called Northside Pleasant and that there's a gang in Fresno called East Lane. So in order to prove those up it is required for certain things. There's a common sign or symbol for Northside Pleasant. You heard N and those things, color blue. They have one or more primary activit[ies], and this is what Detective Fry focused his testimony on that one afternoon we poured through that activity, is drug sales, possession, possession of illegal weapons, burglaries, robberies, assaults. And they engage in a pattern of criminal activity.
"Again, we need to show East Lane also does these things. So East Lane has a common sign or symbol, the ESL, the EKC, I believe all of those things that are associated with the color blue with that. There's three or more members. We heard the numbers [are] smaller for East Lane approximately 45 upwards of 70 Northside Pleasant as per Detective Fry. They have [] primary activities. For them it's similar. Possession of
narcotics, possession of narcotics for sale, sales, illegal possession of firearms, thefts, vehicle thefts and assaults. So [for] each one [it] needs to be show[n] that they engaged in a pattern of criminal activity. And we probably heard when you were hearing from Detective Fry who are these other three people and what do they have to say and what do they mean and I don't understand, but we heard. You will have the packets themselves. Javonte Askew, which is Exhibit 25; Michael Smith, Exhibit 24; Nicholas Smith which is Exhibit 23, all relate to East Lane is showing the convictions establishing for you a pattern of criminal activity by that gang. And likewise for Northside Pleasant, [Exhibit] Number 28 is Donald Henderson; [Exhibit] Number 26 is Collin Stowers, [Exhibit] Number 27 is Gary Banks. So[,] we have those two gangs.
"So[,] what's that mean to you[?] We have to go back and understand how we apply this to these events. The defendant committed the crime for the benefit of or in association with a criminal street gang and the defendant intended to assist[,] further or promote criminal conduct by gang members. All right. And then the People need not prove the defendant is an active or current member of the alleged criminal street gang. In other words, if someone assists a gang member in criminal activity this gang enhancement applies. So[,] in essence, all I had to have shown you is that this defendant assisted Jarmal Packard, [Jlokz], a Northside Pleasant gang member and assaulted [John]. That's it. The whole aspect of East Lane was proven to you, but it doesn't need to be proven for you to find this true. That's it....
"So[,] did he assist them? Did he assist them? Well, who's the one that [John] says yell[ed] out to them? It's [Jlokz]. I'm not going to repeat the line. You've heard it. Who starts the ball rolling? [Jlokz] does. He's Northside Pleasant. Who decides to become involved on their own volition? This defendant does. When he [exits] that vehicle and assists in stomping out [John] he's done it for the benefit and association."
In his rebuttal argument, the prosecutor noted the exhibits showing the predicate offenses related to each gang would be available for the jury's review during deliberations and told the jury, "in essence, the only one that is important is Northside Pleasant." The prosecutor then repeated the predicate offenses offered to prove the pattern of criminal gang activity relevant to Northside Pleasant.
V. Instructions to the Jury
The trial court instructed the jury to consider whether Northside Pleasant and/or East Lane Crips qualified as criminal street gangs, and whether defendant's charged conduct was committed for the benefit of, at the direction of, or in association with Northside Pleasant and East Lane Crips. The jury was also instructed that if it found defendant was guilty of any of the charged crimes, it could consider whether that offense was one of his gang's primary activities and, if so, it could consider that offense for purposes of determining whether the gang's pattern of criminal gang activity was proven.
DISCUSSION
I. Background
A. Parties' Arguments
Defendant argues Detective Fry related out-of-court statements to support his opinion Banks and Henderson were members of Northside Pleasant. Defendant maintains those out-of-court statements were case-specific hearsay under Sanchez, supra, 63 Cal.4th 665. Defendant relies on People v. Ochoa (2017) 7 Cal.App.5th 575, 588-589 (Ochoa) for the proposition that, under Sanchez, this type of hearsay is case-specific rather than background information. Defendant further argues this case-specific hearsay should be assumed to be testimonial under the confrontation clause. Defendant maintains that although the sources of the hearsay are not clearly developed in the record, it was the prosecution's burden to prove the proffered testimony was nontestimonial, thus any ambiguity in the record as to the hearsay sources must be construed in favor of defendant. Finally, defendant contends the admission of this testimonial hearsay was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
The People dispute defendant's characterization of Detective Fry's testimony as case-specific under Sanchez. Among other cases, the People rely on People v. Blessett (2018) 22 Cal.App.5th 903, 944, review granted August 8, 2018, S249250 (Blessett), for the proposition that a gang expert's testimony on predicate offenses, including the gang membership of the people involved, are not case-specific facts under Sanchez, but constitutes background information about the gang. The People also maintain Fry's testimony regarding Henderson was based on his personal knowledge; the facts that Fry relayed to the jury about Henderson were neither case-specific nor hearsay. Assuming any case-specific hearsay was relayed to the jury about Henderson and Banks, the People argue defendant has failed to establish it was testimonial in nature. And, even if testimonial hearsay was improperly admitted, it was not prejudicial under Chapman.
B. Defendant's Pretrial Motion in Limine
Prior to trial, defendant filed a motion in limine pursuant to Sanchez seeking to preclude the People's gang experts from relating to the jury case-specific facts that were garnered from hearsay sources. The People filed a trial brief on the admissibility of the gang evidence.
The parties presented oral argument on this issue at a pretrial hearing, and the court ruled upon the admissibility of gang expert testimony pursuant to Sanchez. At the pretrial hearing, the prosecutor argued Sanchez did not limit an expert's ability to relate a hearsay basis for an opinion so long as the hearsay did not relate to the defendant or the facts of the matter being tried. Defense counsel maintained the gang expert's opinion as to the gang membership of any predicate offender was necessary to establish the gang enhancement as it related to defendant, thus any facts relayed to the jury to support that opinion were necessarily case-specific under Sanchez; further, if those facts were hearsay, that testimony was inadmissible under Sanchez.
The court ruled once the foundation for the expert's testimony was laid, the expert could testify to background information and rely on hearsay to the same extent they could prior to Sanchez, including information about an individual's gang membership; colors, signs, and symbols related to a gang; a gang's pattern of criminal history; it's primary activities; and its predicate offenses. The court noted Sanchez precluded an expert from testifying about case-specific hearsay. For purposes of the trial, the court ruled case-specific facts were those relating to the particular events and participants alleged to have been involved in the case being tried "and that relates to these particular facts or events for the three charged crimes ... as to [defendant] himself."
II. Standard of Review
The trial court has "broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion." (People v. McDowell (2012) 54 Cal.4th 395, 426.) However, when the issue is whether admission of evidence violated the federal Constitution, we review the matter de novo. (People v. Mayo (2006) 140 Cal.App.4th 535, 553.)
III. Legal Framework
A. Gang Enhancement Under Section 186.22(b)(1)
Among the provisions of the Street Terrorism Enforcement and Prevention Act (the STEP Act) "is one imposing additional penalties for offenses committed 'for the benefit of, at the direction of, or in association with any criminal street gang.'" (People v. Loeun (1997) 17 Cal.4th 1, 4 quoting § 186.22(b)(1).) This gang enhancement under section 186.22(b)(1) contains two prongs: the first prong requires proof that the underlying crime was gang-related, i.e., that the defendant committed the charged offense "for the benefit of, at the direction of, or in association with any criminal street gang" (§ 186.22(b)(1)); the second prong requires proof the defendant committed the gang-related felony "with the specific intent to promote, further, or assist in any criminal conduct by gang members ...." (§ 186.22(b)(1); accord, People v. Albillar (2010) 51 Cal.4th 47, 59, 64; see People v. Rios (2013) 222 Cal.App.4th 542, 561.)
The STEP Act defines a "'criminal street gang'" as "[1] any ongoing organization, association, or group of three or more persons, whether formal or informal, [2] having as one of its primary activities the commission of one or more [specified crimes], [3 which has] a common name or common identifying sign or symbol, [4] and whose members 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' specified 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.'" (People v. Loeun, supra, 17 Cal.4th at p. 4, quoting § 186.22, subd. (e).)
To prove the group is a criminal street gang under section 186.22, subdivision (f), the primary activities of the group must include one or more of the criminal acts enumerated in section 186, subdivision (e), paragraphs (1) to (25) inclusive, or paragraphs (31) to (33) inclusive.
Predicate offenses need not be gang related, and proof of a conviction is unnecessary. (People v. Garcia (2014) 224 Cal.App.4th 519, 524.) However, a predicate offense can be established through certified court records documenting the fact of a conviction. (See Evid. Code, §§ 452.5, 1280; People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 [records "prepared to document acts and events relating to convictions and imprisonments" are not testimonial].) Currently charged crimes may qualify as predicate offenses, and so may a defendant's prior convictions if the jury concludes he or she is a gang member. (People v. Tran (2011) 51 Cal.4th 1040, 1046.)
B. Sanchez and Expert Gang Testimony
The existence of a criminal street gang engaged in a pattern of criminal gang activity is often established by expert testimony about a gang's identity, the number of members in the gang, identifying signs or symbols, the culture, and the primary criminal activity in which it engages. Expert testimony may also be used to establish details about the predicate offenses, whether the individuals who committed the predicate offenses are members of a particular gang, and whether the defendant is associated with or is a member of a criminal street gang or acted to benefit a criminal street gang. (See e.g., People v. Vazquez (2009) 178 Cal.App.4th 347, 351, 354 [relying on expert opinion that the murder of a nongang member benefited the gang].) Expert testimony on these matters, however, is not without limitation.
In Sanchez, our high court held that while experts are entitled to rely on inadmissible matters in forming their opinions and are also entitled to explain to the jury the matter upon which they based their opinions (Evid. Code, § 801, subd. (b)), experts are prohibited from relating to the jury case-specific hearsay under state law. (Sanchez, supra, 63 Cal.4th at pp. 675-676, 684.) This is so because "[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth." (Id. at p. 686, fn. omitted.) The court reasoned that, although "[t]he hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise," this type of testimony is distinct from an expert's testimony about case-specific facts that relate "to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) Thus, an expert cannot "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.)
However, precluding an expert from testifying about case-specific hearsay does "not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise." (Sanchez, supra, 63 Cal.4th at p. 685.) "[A]n 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." (Ibid.) Thus, an expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Ibid.)
To clarify the distinction between general background information and case-specific testimony, Sanchez provided four illustrations, one of which is as follows: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Sanchez, supra, 63 Cal.4th at p. 677.) While an expert may testify about generalized information to help jurors understand the significance of case-specific facts and may give an opinion about what case-specific facts may mean, they cannot "supply case-specific facts about which [they have] no personal knowledge." (Id. at p. 676.)
Sanchez also held that, pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford), where case-specific hearsay related by an expert is testimonial, it violates the Sixth Amendment's confrontation clause. (Sanchez, supra, 63 Cal.4th at pp. 679-686.) Crawford held that the Sixth Amendment's confrontation clause bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford, supra, U.S. at pp. 53-54.) The Crawford doctrine, as it has evolved through subsequent United States Supreme Court case law, defines testimonial statements as "those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony" (Sanchez, supra, at p. 689), and which are made "with some degree of formality or solemnity" (People v. Dungo (2012) 55 Cal.4th 608, 619; see Sanchez, supra, at pp. 692-693 [discussing formality emphasis in People v. Dungo]).
1. Varied Interpretations of Case-specific Facts
In applying the hearsay rules articulated in Sanchez, appellate courts have grappled with whether a gang expert's reliance on hearsay involving specific facts about specific individuals, the details of which the expert in turn relates to the jury, should be considered case-specific. (See, e.g., Ochoa, supra, 7 Cal.App.5th at pp. 580-583; Blessett, supra, 22 Cal.App.5th at pp. 942-945, review granted.) This issue has arisen where an expert offers an opinion about whether predicate offenses, used to show a gang's pattern of criminal gang activity, were committed by members of that gang. In opining as to an individual's gang membership, experts often rely on specific facts such as whether the individual has gang tattoos, wears gang clothing, associates or is arrested with known gang members, makes hand signs associated with the gang, and/or self-admits to membership with a specific gang. These facts are akin to those illustrated by Sanchez as being case specific—i.e., the fact that an individual has a diamond tattooed on his arm. (Sanchez, supra, 63 Cal.4th at p. 677.) They are also facts relevant to prove a gang enhancement allegation charged against a defendant in the case. When an expert bases his opinion on these facts but lacks personal knowledge of them, at least one court has concluded that if the expert relates those hearsay facts to the jury to support his ultimate opinion about the individual's gang membership, such testimony constitutes case-specific hearsay in violation of Sanchez. (Ochoa, supra, at pp. 588-589.)
Another court has concluded an expert's basis testimony about these types of facts is case-specific hearsay only if (1) the expert has no personal knowledge about those facts and (2) those facts relate to the events or the participants in the case being tried. (Blessett, supra, 22 Cal.App.5th at pp. 943-945, review granted.) Blessett noted Sanchez expressly defined "case-specific" facts as those "'relating to the particular events and participants alleged to have been involved in the case being tried.'" (Blessett, supra, at p. 945, review granted, quoting Sanchez, supra, 63 Cal.4th at p. 676.) Thus, even though an expert relates hearsay to the jury about particular individuals and particular crimes, and those facts mirror one of Sanchez's general illustrations of case-specific facts, if those facts are unrelated to the participants and the events in the case before the jury, they are not case-specific. (Blessett, supra, at pp. 944-945, review granted.) Instead, they are facts about the historical background of the gang as an organization; under Sanchez, background information related by an expert to the jury is not inadmissible even if it technically constitutes hearsay. (Blessett, supra, at p. 945, review granted.) Blessett concluded an expert's hearsay testimony about a predicate offender who was unrelated to the events or participants in the case before that jury was not case-specific and therefore admissible. (Ibid., review granted.)
Blessett also noted the case-specific illustration Sanchez offered about the tattoo did not make clear whether it was referencing a hypothetical associate of a defendant who was a participant in the events of the case before the jury, or a fellow gang member who had otherwise committed an otherwise unrelated predicate offense. (Blessett, supra, 22 Cal.App.5th at pp. 945-946, fn. 21, review granted.) Blessett did not, therefore, find the illustration to be dispositive of whether those types of facts are necessarily case-specific. (Ibid., review granted.)
IV. Analysis
A. Assumption Predicate-offense Testimony is Case-specific
The parties do not dispute the admissibility of the evidence about the predicate offenses as to Northside Pleasant that were established through certified court records. The parties' dispute centers on Fry's opinion these offenses were committed by Northside Pleasant gang members and whether, to support this opinion, Fry related case-specific testimonial hearsay to the jury under Sanchez.
No matter which view of predicate offense testimony under Sanchez we find more compelling—Ochoa or Blessett—it does not affect the outcome here. Assuming Ochoa stands for the broad proposition that an expert's testimony relating out-of-court statements pertaining to predicate offenses is case-specific hearsay even where, as here, those out-of-court statements are themselves unrelated to the participants or events in the case, and further assuming this is a correct application of Sanchez, we nonetheless conclude there was no prejudicial error in admitting this testimony.
B. Admission of Case-specific Hearsay
We begin our analysis by presuming any out-of-court statements Fry related to the jury to support his opinion Henderson and Banks were Northside Pleasant gang members were necessarily case-specific under Sanchez because they are specific facts about specific individuals relevant to proving the gang-enhancement charge against defendant. (See Ochoa, supra, 7 Cal.App.5th at pp. 588-589 [pursuant to Sanchez, out-of-court admissions of gang membership are case-specific facts].)
Sanchez set out a two-step analytical framework for determining the admissibility of case-specific out-of-court statements by an expert: (1) consider whether the case-specific fact constitutes hearsay by determining if the fact is a statement made out of court; whether it is offered to prove the truth of the facts it asserts; and whether it falls under a hearsay exception; and (2) if the hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required—"[a]dmission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.)
Here, the prosecution introduced evidence of three predicate offenses, committed by Collin Stowers, Donald Henderson, and Gary Banks to establish Northside Pleasant's pattern of criminal gang activity. Detective Fry opined each of these individuals were active Northside Pleasant gang members; defendant challenges Fry's testimony as to Banks and Henderson only. We turn first to consider whether Fry's testimony about Henderson and Banks constituted hearsay.
As to Henderson, Fry testified he was a Northside Pleasant gang member and specifically noted he (1) associates with known gang members; (2) has been arrested with known gang members; (3) wears clothing associated with the gang; and (4) has been photographed with other known gang members exhibiting gang hand signs. If Fry had no personal knowledge of these facts and learned them from statements made out of court, that testimony is hearsay. (See Sanchez, supra, 63 Cal.4th at p. 685 [while an expert may tell the jury in general terms that he relied on hearsay sources in reaching his opinion, he cannot relate the out-of-court statements themselves unless they are independently proven].) With respect to the first three facts, the record does not establish they were hearsay.
Though Fry acknowledged he validated Henderson as a gang member by talking with other officers and reviewing police records, he also testified his opinion was based on multiple personal contacts with Henderson, including arresting him several times; many of those contacts occurred in Northside Pleasant territory. Thus, it is more likely than not Fry had personal knowledge Henderson associates with known gang members, wears gang clothing, and has been arrested with known gang members. Because Fry was not questioned about the extent of his personal knowledge of these facts, defendant cannot demonstrate they were necessarily garnered from out-of-court statements as opposed to Fry's personal knowledge. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 [it is a fundamental rule of appellate law that the judgment challenged on appeal is presumed correct, & it is the appellant's burden to affirmatively demonstrate error].)
With respect to Fry's testimony about photographs of Henderson showing him with known gang members making gang signs, defendant asserts that if Fry had not personally viewed the photographs, his testimony about them would be based on out-of-court statements from others about the photographs' contents. While that may be true, Fry testified he searches social media photographs to make gang validations. And, as with the other facts about Henderson, Fry was not questioned about his personal knowledge of the photographs' contents, and defendant cannot establish Fry's testimony was necessarily based on hearsay in that regard.
It is not clear from Fry's testimony whether Henderson himself was making gang signs in the photographs.
Nevertheless, Fry's testimony that those in the photographs, perhaps including Henderson, were making gang signs gives us pause for another reason. Fry testified hand signs "are used by gang members to represent their gang or to disrespect another gang," and when gang members use hand signs, they are "putting it out there for everyone to know they are gang members, and they are representing their hood." If the photographs Fry mentioned were themselves communicating an out-of-court statement offered for the truth of the matter asserted—that the person making the hand sign is a member of a specific gang—that too may be hearsay.
Photographs themselves are not typically amenable to characterization as statements, but to the extent the hand sign made by a person captured in the photograph was nonverbal conduct intended by that person to be a substitute for oral or written verbal expression of gang membership, the photographs themselves might arguably constitute an out-of-court statement by the person making the hand sign. (Evid. Code, § 225 ["'Statement' means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression."].)
The conduct captured in the photographs Fry referenced is markedly different from autopsy photographs that the California Supreme Court has held do not constitute hearsay. (People v. Garton (2018) 4 Cal.5th 485, 506 [autopsy "photographs are not statements"].) Posing for a photograph while contemporaneously making hand signs meant to convey a message of gang affiliation is wholly distinguishable from an autopsy photo where one would be hard-pressed to argue the cadaver intended to convey a nonverbal communication. Photographs of individuals posing with hand signs are also different from photographs of individuals bearing gang-affiliated tattoos. Unlike gang hand signs made contemporaneous with the photograph, a tattoo is not contemporaneous conduct, and its mere visibility in the photograph may not be intentional. To the extent Fry repeated the contents of photographed statements in court for the truth of the matter asserted (gang membership of the person making the hand sign), there may be a colorable argument such testimony is hearsay.
Fry offered very few details about the photographs, and it is not clear Fry meant that Henderson himself was photographed making a gang hand sign that Fry interpreted as an admission of gang membership. We will presume, without deciding, the testimony is hearsay for purposes of our analysis.
As to Banks, the second of three predicate offenders offered by the prosecution to establish Northside Pleasant's pattern of criminal gang activity, Fry opined Banks was a Northside Pleasant gang member and related the following facts: (1) Banks had self-admitted he was a Northside Pleasant gang member; (2) he had a tattoo of "NY" on his hand; and (3) he associates with known gang members. Fry conceded he had no personal knowledge about Banks; these facts necessarily derived from reports or documentation written by others or from statements by officers who related this information; and the facts were offered for the truth of the matter it asserted. This was hearsay.
As Fry related hearsay to the jury as part of the support for his opinions about Banks's and Henderson's gang membership, and we have presumed it was case-specific under Sanchez, we turn next to determine whether any of that hearsay was testimonial under the Crawford doctrine.
C. Admission of Testimonial Hearsay Assumed
Only testimonial hearsay admitted in a criminal proceeding implicates the confrontation clause, subject to unavailability and cross-examination limitations. (Crawford, supra, 541 U.S. at pp. 62, 68; Sanchez, supra, 63 Cal.4th at p. 680.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, supra, at p. 689, fn. omitted.) Further, to be testimonial, "the statement must be made with some degree of formality or solemnity." (People v. Dungo, supra, 55 Cal.4th at p. 619; see Sanchez, supra, at pp. 692-694.)
The parties agree the record does not establish the precise source of any hearsay related by Fry. As the prosecutor was the proponent of Fry's testimony, defendant argues it was the prosecutor's burden to establish the hearsay was nontestimonial; if the record is undeveloped in this regard, it should be assumed the hearsay Fry related was testimonial. The People argue it is defendant's obligation to establish error in the appellate record, but even if Fry related testimonial hearsay to the jury, it was harmless under the Chapman prejudicial-error analysis.
We are skeptical the undeveloped record warrants the presupposition of a constitutional error on appeal. It is true the proponent of proffered hearsay—which, at trial in this case, was the People—has the burden of establishing its admissibility under an exception to the hearsay rule and that it is not testimonial. (People v. Morrison (2004) 34 Cal.4th 698, 724; Ochoa, supra, 7 Cal.App.5th at p. 584, citing Idaho v. Wright (1990) 497 U.S. 805, 816 [state has the burden of proof regarding admissibility under confrontation clause].) Yet, here, the court ruled before trial that under Sanchez, testimony about the predicate offenses was background information, not case-specific, as long as it did not relate to participants or events in the case. Based on this ruling, Fry's statements about the predicate offenses were not inadmissible hearsay and, thus, did not implicate the confrontation clause. As such, the prosecutor had effectively met his burden of establishing the admissibility of Fry's predicate offense testimony. Even if defendant had interposed hearsay and/or confrontation clause objections during Fry's testimony about Henderson and Banks, which he did not do, the prosecutor would not have been required to make any showing of the nontestimonial nature of the hearsay sources due to the trial court's interpretation of Sanchez.
The crux of defense counsel's argument at the pretrial hearing was that predicate-offense testimony necessarily related to defendant because those facts were required to establish the gang enhancement alleged against him; thus, any out-of-court statements relayed in that testimony would have to be case-specific. Defense counsel did not discuss the confrontation clause analysis, although it was noted briefly in his motion in limine.
Further, it is clear from the pretrial hearing on this matter that defense counsel's interpretation of Sanchez would necessarily render Fry's predicate offense testimony containing out-of-court statements to be case-specific hearsay, which could implicate the confrontation clause. Once such testimony was offered by the prosecution through Fry, it was defendant's obligation, as a practical matter, to develop the record for purposes of appeal because his objection had effectively already been ruled upon. While defense counsel's cross-examination established some of Fry's specific predicate-offense testimony related or potentially related hearsay to the jury, no questions were asked about the specific source of any hearsay to determine its testimonial nature. On appeal, defendant has the burden to affirmatively establish error; he cannot demonstrate a confrontation clause violation because of the undeveloped record. (See People v. Giordano (2007) 42 Cal.4th 644, 666 ["'"error must be affirmatively shown"'"].)
Nevertheless, even if we place the failure to adequately develop the record squarely at the People's feet, only hearsay related to Banks is arguably testimonial. As to Banks, Fry testified his sources of information came from other officers, police records, records contained in the FPDRMS, and his review of social media photographs. Some of those records were likely developed for the primary purpose of establishing facts for use in a criminal prosecution and bear indicia of formality or solemnity—i.e., some sources were likely testimonial. (Sanchez, supra, 63 Cal.4th at pp. 687-694 [discussing evolution of the Crawford doctrine's primary purpose and formality factors].)
As to Henderson, only Fry's testimony about the photographs is arguably hearsay, as discussed above. However, photographs, particularly those posted to social media accounts, are extremely unlikely to be testimonial. While there are no details about the photographs Fry discussed, there is no basis to assume the photographs were created for the primary purpose of use in a criminal prosecution, particularly given their content: known gang members posing together making gang signs.
Assuming the erroneous admission of testimonial hearsay in violation of Crawford as to Banks, that error was harmless beyond a reasonable doubt as set forth below.
D. Presumed Error Was Harmless
The erroneous admission of nontestimonial hearsay is a violation of state law subject to the harmless error standard set out in People v. Watson (1956) 46 Cal.2d 818. (Sanchez, supra, 63 Cal.4th at pp. 685, 698.) Pursuant to this standard, reversal is required only if it is reasonably probable that the defendant would have achieved a more favorable result if not for the error. (People v. Wall (2017) 3 Cal.5th 1048, 1060.) The erroneous admission of case-specific testimonial hearsay in violation of the confrontation clause is "an error of federal constitutional magnitude," and requires reversal unless the error is harmless beyond a reasonable doubt pursuant to Chapman, supra, 386 U.S. at page 24. (Sanchez, supra, at pp. 685, 698.)
Defendant asserts the error is prejudicial under the federal harmless error analysis. In Sanchez, "much of the hearsay was testimonial," thus the court applied the federal prejudice standard in conducting its harmless error analysis. (Sanchez, 63 Cal.4th at p. 698.) As we have assumed a mix of testimonial (as to Banks) and nontestimonial (as to Henderson) hearsay was erroneously admitted through Detective Fry, we will apply the federal standard for purposes of determining whether the error was harmless: whether the admission of hearsay was harmless beyond a reasonable doubt under Chapman. (Sanchez, supra, at p. 698.)
The Chapman standard requires reversal unless the People establish "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24.) "'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.'" (People v. Neal (2003) 31 Cal.4th 63, 86.) In other words, if upon a thorough examination of the record, the court can conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error, the error is harmless. (People v. Mil (2012) 53 Cal.4th 400, 418.) Even pursuant to this more stringent standard, beyond a reasonable doubt the jury verdict was not affected by the introduction of hearsay relevant to Northside Pleasant's pattern of criminal gang activity.
Detective Fry's opinion Banks is a Northside Pleasant gang member was based on hearsay because Fry had no personal knowledge of Banks, some of which Fry related to the jury. Yet even without the admission of this case-specific hearsay, the value of Fry's opinion is not undercut nor does the absence of this hearsay leave the jury without sufficient bases to evaluate the probative weight of the opinion. Fry testified at length about his extensive experience with Black gangs in Fresno and his MAGEC unit assignment, which centers on Black gangs. Fry explained he assists with felony assault, robbery, and homicide detectives investigating crimes that are considered Black-gang related. In that capacity, he reviews reports authorized by patrol officers and detectives. Moreover, he is tasked with preparing a gang packet to validate gang members whenever an individual is arrested for gang-related crimes specific to Black gangs in Fresno.
To validate gang members, Fry looks at a variety of factors such as whether the subject associates with known gang members, self-admits to gang membership, wears gang clothing, and has gang-associated tattoos. Fry examines multiple sources of information, including the FPDRMS, which lists all of a subject's information, gang associations, and contacts with law enforcement; police reports written by patrol officers and detectives; field interview reports generated by patrol officers and detectives; discussions with other officers; and he reviews social media for photographic indicia of gang membership.
Moreover, Fry testified to extensive personal contacts with Northside Pleasant gang members, and his work with the North Bureau Impact Team had focused on Northside Pleasant territory. Fry's training and experience, in combination with his testimony about the particular sources of information he researches to validate a gang member, lends credibility and material support for his expert opinion Banks was a Northside Pleasant gang member, even absent revealing to the jury some specific details about Banks that Fry uncovered in his research. The jury knew how Fry conducted his validation research, the factors he considered, and the sources of information he reviewed; and the jury was apprised of Fry's experience and training in making these specific types of validations. In other words, the jury knew a great deal about Fry's validation process and, even without the hearsay details, was positioned to evaluate his experience, the thoroughness of his process, and the reliability of the sources of his information when deciding the weight to assign his opinion. In light of Fry's plethora of training, experience, and extensive research, the probative value of his ultimate validation opinion as to Banks would not have been diminished had he not recited some hearsay details about Banks.
The same is true of the support for Fry's opinion Henderson is a Northside Pleasant member, but even more so. Fry conducted the same validation research as to Henderson and testified to multiple prior contacts with Henderson, including personally arresting Henderson on more than one occasion. Not only were the details about Henderson having gang associations, being arrested with gang members, and wearing gang clothing not necessarily hearsay, the jury had an additional basis to credit Fry's ultimate opinion: Fry did not just research Henderson, he knew Henderson from their multiple contacts. As to Fry's assumed hearsay testimony about the photographs, that detail offered very little additional evidence to corroborate Henderson's affiliation with Northside Pleasant. It is not clear whether Henderson himself was making gang signs in the photographs (arguably a nonverbal self-admission of gang membership), and there was already evidence Henderson associated with known gang members (which was likely based on Fry's personal knowledge). Even without Fry's testimony about the photographs, Fry's opinion Henderson was a Northside Pleasant gang member was supported by a decisive margin. Beyond a reasonable doubt, the jury would have credited Fry's opinion about Henderson even absent the testimony about the photographs.
Defendant does not challenge Fry's basis-testimony as to his opinion Collins Stowers is a Northside Pleasant gang member, but there was an abundance of evidence to support Fry's opinion in this regard. Again, the details of Fry's experience and research process in validating gang members was, by itself, more than sufficient to support Fry's validation of Stowers. Even beyond validation research, Fry had personal knowledge of Stowers, and Fry was present for the testimony of Officer Wilkin. Wilkin testified he had a prior contact with Stowers where he was able to observe Stowers had a tattoo of the numbers 4 and 5 with a diamond over it, which Fry testified was indicative of Northside Pleasant.
Even absent any case-specific testimonial hearsay as to Banks and nontestimonial hearsay as to Henderson, there remained ample support for Fry's opinion that Banks, Henderson, and Stowers were Northside Pleasant gang members. Thus, the predicate offenses necessary to show Northside Pleasant's pattern of criminal gang activity were established. (§ 186.22, subd. (e) [gang engages in pattern of criminal gang activity when its members participate in "two or more" statutorily enumerated criminal offenses that are committed within a specific time frame "on separate occasions, or by two or more persons"].) But even if Fry's opinions about Banks and Henderson was completely undermined by the erroneous admission of the hearsay discussed above—which it was not—we still conclude beyond a reasonable doubt the jury's verdict was not affected by the admission of that evidence.
The jury was instructed it could consider whether defendant engaged in the charged conduct for the benefit of, at the direction of, or in association with East Lane Crips. Defendant does not challenge Fry's testimony about the predicate offenses offered to establish East Lane Crips's pattern of criminal gang activity. However, he argues the prosecution told the jury to focus on Northside Pleasant and the evidence about East Lane Crips was "much more tenuous" because Jarmal/Jlokz was the instigator of the assault and it was committed in Northside Pleasant territory, not East Lane Crips territory.
We agree the prosecutor's closing argument did not emphasize the evidence relevant to East Lane Crips's existence as a criminal street gang or its predicate offenses. However, the existence of East Lane Crips as a criminal street gang and the benefit of defendant's conduct to East Lane Crips was supported by the evidence; we disagree this theory was factually "more tenuous" than evidence defendant's conduct was committed for the benefit of, at the direction of, or in association with Northside Pleasant. Fry testified crimes like those charged against defendant would benefit, and would be intended to benefit, a gang member's own reputation and that of his gang. Fry testified as to East Lane Crips's primary activities, and the prosecution offered evidence of three predicate offenses, which were among East Lane Crips's primary activities and were committed by individuals Fry opined were East Lane Crips gang members: Javonte Askew, Michael Smith, and Nicholas Smith. Fry had personal contacts with Askew, and there was other evidence about Askew introduced through Detective Davis, who had personal contact with Askew and knew him to be an East Lane Crips member.
The prosecution also offered evidence of defendant's East Lane Crips gang membership, including that defendant had various gang tattoos, he associates with known gang members, and he has admitted membership with East Lane Crips. These facts were offered through witnesses with personal knowledge, including Fry, Detective Mayo, Detective Davis, Sergeant Smith, Officer Aguilar, and Detective Archan. In other words, there was evidence of multiple predicate offenses for the jury to consider as well as evidence they were committed by East Lane Crips gang members—which defendant does not challenge. Despite the prosecutor's emphasis on Northside Pleasant, the jury was not bound to that single theory; the existence of East Lane Crips as a criminal street gang was factually well supported by the evidence.
Moreover, the jury was instructed on the elements necessary to conclude East Lane Crips was a criminal street gang for purposes of the enhancement allegations, and defendant does not challenge that instruction. The jury was also instructed that if it found defendant guilty of any of the charged crimes, it could consider those crimes in deciding whether one of East Lane Crips's primary activities was the commission of that crime and whether East Lane Crips's pattern of criminal gang activity had been proven. Defendant's gang membership with East Lane Crips was factually supported, which offered more predicate offenses to support East Lane Crips's pattern of criminal gang activity. The theory defendant benefited East Lane Crips, a criminal street gang, through engaging in the charged conduct was factually supported by the evidence, the jury was instructed on this theory, and we presume the jury understood and followed the instructions. (People v. Wilson (2008) 44 Cal.4th 758, 803.)
In sum, the admissible evidence amply supported the jury's verdict, and we conclude beyond a reasonable doubt the jury's true findings on the gang enhancement were not affected by the admission of what we presume was testimonial and nontestimonial hearsay.
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
FRANSON, J.