Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS011896
RUSHING, P.J.
I. Statement of the Case
A jury convicted defendant Christopher Curiel of two counts of robbery and found that he personally used a firearm and committed the robberies for the benefit of and with the intent to assist a criminal street gang. (Pen. Code, §§ 211, 186.22, subd. (b)(1), 12022.53, subds. (b) & (e).) The court sentenced him to 17 years and four months in prison. On appeal from the judgment, he claims there is insufficient evidence to support one of the robbery counts and all of the gang enhancements. He claims the court erred in admitting evidence of statements by his accomplices and the testimony of a gang expert. He also claims the court erred in permitting the prosecutor to use inadmissible documentary evidence to prove the gang enhancements.
We uphold the robbery convictions but strike the gang-enhancements, reverse the judgment, and remand for further proceedings.
II. Facts
The Robberies
Around 8:00 p.m., on August 12, 2001, Jose Lara and his girlfriend Irene Martinez were walking to their car in Natividad Creek Park. Three men approached and split apart, seeming to allow Lara and Martinez to pass. However, two of them grabbed Lara by the wrists. One put a gun to his head, and they demanded everything he had. They took his cell phone, wallet, watch, and a chain he was wearing. They also demanded Martinez’s necklace. When she refused, one of them grabbed her blouse and pulled it off. The men told Lara and Martinez to run one way, and then they took off in the opposite direction.
Lara and Martinez encountered Griselda Leon, who immediately called the police. Within a short time, two officers in a car spotted three men crossing a nearby street. Two of them—defendant and Gilbert Solis—were immediately arrested; the other man—Luis Resto—fled but was soon found and arrested. Resto had a.38 calibre bullet in his pocket. He also had a red bandana in his back pocket and was wearing a necklace that had the words “Salinas” and “ELC” and the numbers “1” and “4” on it. He had “Casitas” tattooed on his chest. In the area through which Resto had fled, police found a cell phone, a shirt, 3 more bullets, and a fully loaded.357 revolver. During an in-field showup a short time later, Lara identified all three men as the robbers.
Officer Jarrett Edgar of the Salinas Police Department interviewed defendant at the police station. Defendant was evasive and kept changing his answers. He admitted being with Solis that night but denied being involved in a robbery or knowing Resto or anything about a gun. Later, however, he admitted meeting with Resto, talking about the gun, and participating in the robbery. He explained, “We just did ‘em up real quick, ” referring to “the Mexican and his girlfriend that were in the park[.]” He said he made a bad decision. He admitted that he may have held Lara’s arm and taken his cell phone. He told Officer Edgar that he was “pleading guilty” and said, “I know what I did was wrong.” He also claimed a long-time Norteño gang affiliation.
Defendant testified that he was forced to talk to police and denied making these statements.
Officer Mark Clark of the Salinas Police Department interviewed Solis and Resto. Both told him that the three of them had talked in advance about committing a robbery.
The Gang Evidence
Deputy Michael Hampson of the Monterey County Sheriff’s Department testified as an expert in the classification of inmates for housing purposes at the Monterey County Jail where he had received training and performed that function for 10 years. Concerning gangs, he had taken a basic class on institutional classification and then refresher courses every year on gangs and other classification issues. He testified that in determining where to house an inmate, he considers the inmate’s screening questionnaire which lists the charges, enemies the inmate claims to have, gang admissions, previous questionnaires and housing classification, and any other information that might be helpful in preventing problems with inmates being housed together. Depending on the information in the questionnaire, Deputy Hampson may conduct a follow-up interview. He then determines the appropriate housing placement and has the inmate sign off on it.
Based on his review of relevant documentary evidence, Deputy Hampson testified that he would classify defendant as a Norteño gang member for housing purposes. In particular, he relied on Exhibit 36, which included certified copies of three intake questionnaires for defendant dated April 13, June 11, and August 13, 2001. The April 13 questionnaire, signed by defendant, listed “Norteño” and “East Island Pacific Seaside” in response to whether he or a family member were in a gang; and listed “Sureños” as enemies. The June 11 questionnaire, which was not signed, stated “no” in response to personal or familial gang membership; and simply “yes” concerning whether defendant had any enemies. The August 13 questionnaire also stated “no” concerning gang membership but “yes” concerning enemies and listed “Sureños.”
Officer Brian McKinley of the Salinas Police Department testified as an expert on gangs in the Salinas area. He testified that the two major gangs in the area are the Norteño Nuestra Familia and Sureño Mexican Mafia. He explained that the Nuestra Familia is a formal, structured prison gang that operates as an umbrella for less structured local street or neighborhood subgroups or cliques, such as the East Las Casitas, Salinas East Market Street, and Kilbreth gangs. The common signs and symbols for Norteños are Norteño, Norte, N, the number 14, the Roman numeral XIV, and the color red. Officer McKinley opined that in 2001 there were estimated to be 3, 000 Norteños in Salinas and numerous local Norteño subgroups with three or more members.
Officer McKinley testified that Salinas Norteño gang activities in 2001 included murder and attempted murder, shootings, robberies, carjackings, kidnapping, and drug trafficking. He said that money obtained from crimes was often used to buy weapons, divvied up among local subgroups, and sent on to higher ranking gang members. He explained that gang members usually commit their crimes with other gang members rather than non-members, and doing so both reinforces gang solidarity and avoids witnesses whose loyalty is not secure. He further explained that gangs also benefit from the crimes they commit because they help develop a reputation, recruit new members, and instill fear.
Officer McKinley identified some specific Norteño gang members by name and the crimes they had been convicted of committing. Based on his review of police reports, other information and documentary evidence, tattoos, and other indicia of gang membership, Officer McKinley opined that Resto and Solis were active Norteño gang members. Based on defendant’s numerous contacts with the police between June 1997 and July 2001, where he admitted Norteño gang affiliation or was wearing red clothing commonly worn by Norteño gang members or was engaged in criminal conduct or was in the company of known Norteño gang members, including Resto, Officer McKinley opined that at the time of the current robberies, defendant was an active Norteño gang member.
Officer McKinley further noted that at that time, defendant, Resto, and Solis all lived in the East Las Casita area of East Salinas, which is also in the area of Natividad Creek Park, where it was very common to find Norteño gang members. Officer McKinley testified that he had arrested gang members in Natividad Creek Park and had seen gang graffiti there.
Finally, given a hypothetical based on the circumstances of the robberies, Officer McKinley opined that they were committed for the benefit of and with the intent to promote the criminal activities of the Norteño street gang. He explained that the gang could benefit from the proceeds of the robbery, and the participants gain respect within the gang and help it recruit new members.
The Defense
Defendant testified that he participated in the robberies and personally took Lara’s cell phone. He said that he, Resto, and Solis were at the park together. He wanted to go home, but they wanted to “kickback” there. He did not have the “guts” to leave so he stayed. Defendant denied knowing about or planning a robbery before it occurred. At that time, he was scared and felt coerced by the others to participate.
Defendant said he had friends who were gang members and knew that Resto was a gang member. He also admitted that he lied to police when he said he did not know Resto. Defendant said that at that time, he was associating with Norteño gang members but did not know that Solis and Resto were members. He admitted having committed crimes with people associated with gang members but without actually knowing whether they were members. He said he learned about who was a gang member later from information in police reports. He denied being a Norteño gang member himself, and he did not think he had ever claimed membership. He also denied robbing Lara and Martinez for the benefit of the gang.
III. The Sufficiency of Evidence
Defendant contends there was insufficient evidence to support a conviction for robbing Martinez. Defendant also contends there was insufficient evidence to support the gang enhancements.
Applicable Standard
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
The Martinez Robbery
Martinez testified that while two robbers were grabbing Lara and demanding his things, the third demanded her necklace. When she refused and started crying, the man grabbed her blouse and tore it from her. The prosecutor asked if she ever got it back, and she said, “No. It was—it remained [on the ground], ” and “We didn’t pick it up.” The prosecutor then asked where it was after the robber took it, and she said she did not remember or see it afterward. “I just know that they took it, but I didn’t know anything else about it afterwards.” Martinez said that the whole incident took place very quickly.
Lara testified that when Martinez told the robbers to leave him alone, one of them pushed her. Lara did not see the person take her blouse. However, he said that as soon as the robbers had his things, they let go and told him and Martinez to run. Lara testified that the next day, they returned to the area, where they found Martinez’s blouse on the ground.
Defendant correctly notes that robbery requires a taking by force with the intent to permanently deprive. (People v. Young (2005) 34 Cal.4th 1149, 1176-1177; Pen. Code, § 211.) He claims there was insufficient evidence of intent to permanently deprive. According to defendant, the evidence shows that when Martinez refused to give up her necklace, the robber abandoned his attempt to steal it and simply retaliated out of anger by tearing her blouse of and then throwing it on the ground.
Defendant’s view of the facts is not unreasonable and would have constituted appropriate argument to the jury. However, that view requires that we draw inferences inconsistent with the jury’s verdict. The question before us is whether the jury reasonably could have inferred that the robber took Martinez’s blouse with the intent to permanently deprive.
Defense counsel, however, did not argue that the taking was only theft because there was no intent to permanently deprive.
Neither Lara nor Martinez testified that the robber threw the blouse on the ground immediately after taking it. When asked whether she ever got the blouse back, she said no, it remained on the ground, and they did not pick it up. This response does not necessarily establish that the robber immediately threw it down or that Martinez saw it there immediately after it was taken. As noted, Martinez said that the robber grabbed her blouse while the other men were robbing Lara. Lara said that as soon as they got his things, he and Martinez were directed to run, and they did. Martinez said she did not remember what happened to the blouse after it was taken or even see it after it was taken. On the other hand, both testified that the blouse was on the ground the next day. Given the specific question Martinez was asked—did you ever get the blouse back—we find that her answer that it “remained” on the ground and they did not pick it up reasonably could have meant simply that when they found it the next day, they left it on the ground.
We further note that defendant appears to concede there was substantial evidence that the person intended to permanently take Martinez’s necklace. Given evidence of how quickly the incident took place, a jury reasonably could infer that when Martinez refused to surrender the necklace, the robber simply grabbed to get for whatever he could get—perhaps hoping to snatch the necklace he wanted—without consciously shifting mental gears from his existing intent to permanently deprive to a simple punitive intent to temporarily deprive. Then, once Lara and Martinez started to flee, the robber took off in the other direction and he ditched the blouse. More simply, the robber grabbed for what he could get and seconds later, having only the blouse, decided he did not want to keep it.
In short, we do not find the evidence insufficient as a matter of law to support defendant’s conviction for robbing Martinez.
Under the circumstances, defendant’s effort to distinguish this case from those in which a temporary taking was nevertheless found to be sufficient to support a robbery conviction—People v. Davis (1998) 19 Cal.4th 301; People v. Avery (2002) 27 Cal.4th 49, People v. Carroll (1970) 1 Cal.3d 581, People v. Mumm (2002) 98 Cal.App.4th 812, and People v. Hall (1967) 253 Cal.App.2d 1051, 1054—does not persuade us that the evidence here was insufficient to establish the requisite intent to permanently deprive.
The Gang Enhancements
To establish the enhancements, the prosecutor had to prove beyond a reasonable doubt that defendant committed the robberies “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 any criminal conduct by gang members.” (Pen. Code, § 186.22, subd. (b)(1).) We conclude that it was sufficient to support the jury’s findings.
Deputy Hampson testified as an expert on jail classification and opined that defendant would be classified and housed as a Norteño. In support of his opinion, he reviewed information in some of defendant’s prior jail classification questionnaires (Exhibit 36).
Defendant claims that the court erred in permitting the prosecutor to use Exhibit 36 to prove the gang enhancements.
Officer McKinley provided expert testimony concerning gangs. He testified about the Norteño gang in general, its origin in the prison system, Norteño gangs and subgroups in Salinas, the symbols, colors, and clothing used by Norteño gangs, the areas in which they are prevalent, their rivals the Sureños, the extent of Norteño gangs in Salinas in 2001, the primary criminal activities Norteño gangs and subgroups, and the use of crimes to obtain money, instill fear, and recruit new members. He testified that gang members usually commit crimes with other members rather than with non-gang members. He testified about some Norteño gang members by name and the crimes they had committed. Based on information that he had reviewed and knew about Solis, Resto, and defendant, Officer McKinley opined that they were Norteño gang members and then explained the factual bases for his opinion. And given a hypothetical based on the facts of this case, Officer McKinley opined that the robberies were committed for the benefit of a gang and with the intent to assist gang members.
Defendant claims the court erred in permitting Officer McKinley to offer an opinion on whether the robberies were committed for the benefit of a street gang and with the intent to assist the criminal activity of gang members. He argues that the jury was fully capable of making that determination without the need for an expert opinion. In our view, the purpose and intent elements of a gang enhancement are usually beyond common knowledge and thus properly are the subject of expert testimony based, as here, on hypothetical scenarios drawn from the facts of a case. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1523; e.g., People v. Albillar (2010) 51 Cal.4th 47, 53-54, 63 [expert opinion that crime benefited gang supports inference that crime was committed for that purpose]; Gardeley, supra, 14 Cal.4th at pp. 618-619 [gang expert may testify a crime was committed to benefit a gang, in response to a hypothetical question that assumes the truth of the trial evidence].)
In People v. Albillar, supra, 51 Cal.4th 47, the court opined that if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members. (Id. at p. 68.) Here, there was ample, if not strong evidence, that defendant and his accomplices were gang members. There was compelling, if not conclusive, evidence that the three men robbed Lara and Martinez. There was evidence that the robbery occurred in an area associated with Norteños. Given this evidence and Officer McKinley’s explanation of gangs and gang culture and the gangs of Salinas and how they operate, the jury reasonably could infer that defendant and his accomplices robbed Lara and Martinez for the benefit of a gang and with the specific intent to assist each other’s criminal conduct.
Accordingly, we conclude that the enhancements are supported by substantial evidence.
Defendant’s reliance on Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 for the proposition multiple gang members committing a crime together is insufficient to support a gang enhancement is misplaced. First, Briceno is not binding on this court. (People v. Burnett (2003) 110 Cal.App.4th 868, 882; e.g., People v. Vazquez (2009) 178 Cal.App.4th 347, 353 [rejecting Briceno].) More importantly, the California Supreme Court expressly rejected Briceno in People v. Albillar, supra, 51 Cal.4th at pp. 65-67.)
IV. Admissibility of the Statements by Solis and Resto
Defendant contends that court erred in admitting evidence of statements that Officer Clark obtained from Solis and Resto during custodial interrogation. He claims the statements were inadmissible hearsay and further claims their admission violated his constitutional right of confrontation.
The Statements, Objections, and Ruling
Officer Mark Clark of the Salinas Police Department interviewed Solis and Resto after they were arrested. At an Evidence Code section 402 hearing, Officer Clark was asked about a statement in his police report concerning what Solis and Resto had said. Officer Clark reported that Solis initially did not admit that they had a plan to commit a robbery, but later he said that they briefly preplanned the robbery because everybody knew what to do once they passed the victims. Officer Clark testified that he could not remember exactly what Solis had said and conceded that he merely characterized it because Solis had been evasive, vague, and rambling.
Officer Clark was also asked about a statement in his report that Resto admitted they had briefly preplanned the robbery but not in a well thought out way. Again, he could not remember Resto’s exact words and said the report reflected a “characterization” of what Resto had said. Officer Clark agreed that neither Solis or Resto had referred to defendant by name as being part of some discussion before the robbery. However, they referred to the three of them, which he understood to include defendant.
Defense counsel objected to the testimony on the ground that it was essentially inadmissible hearsay, vague, and lacking in a proper foundation. Counsel further argued that admitting the testimony would violate defendant’s constitutional right of confrontation.
The trial court ruled that the statements were admissible under the hearsay exception for statements by coconspirators. (Evid. Code, § 1223.) Thereafter, Officer Clark’s trial testimony mirrored his testimony at the “402” hearing.
Discussion
Evidence Code section 1223 provides an exception to the hearsay rule for statements offered against a party where the statement was made by the declarant “while participating in the conspiracy... and in furtherance of the objective of that conspiracy” and “prior to or during the time that the party was [also] participating in it.” (Evid. Code, § 1223, subds. (a) & (b).)
Evidence Code section 1223 provides, “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and [¶] (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.”
Defendant argues, and the Attorney General concedes, that the statements by Solis and Resto as related by Officer Clark were not admissible under the co-conspirator exception because they were made to Officer Clark after the goal of the alleged conspiracy was accomplished and not “in furtherance” of the conspiracy. (E.g., People v. Saling (1972) 7 Cal.3d 844, 852 [statements made weeks after conspiratorial goal inadmissible]; People v. Luker (1965) 63 Cal.2d 464, 476 [admission after arrest not in furtherance of conspiracy].)
Defendant further argues, and we agree, that the exception was inapplicable because Officer Clark could only “characterize” what Solis and Resto had said and could not remember their statements or words. The exception, however, applies to the statements of a declarant and not to someone else’s characterization of a declarant’s statements.
We turn now to defendant’s constitutional claim. Both the state and federal Constitutions guarantee a criminal defendant the right to confront adverse witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the Supreme Court held that “testimonial” evidence can be admitted consistent with the confrontation clause only if the witness was unavailable and the defendant had a prior opportunity to cross-examine the witness. (Id. at p. 68.) Although the court declined to exhaustively outline what sort of statements qualified as testimonial, it explained that the test was whether the statement was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue. (Id. at pp. 68-69.) In this regard, the court stated, “Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Id. at p. 68.)
In Davis v. Washington (2006) 547 U.S. 813, the court qualified that statement as it applied to police interrogations, holding that statements are not “testimonial” if the circumstances, viewed objectively, indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency. (Id. at pp. 821-822.)
There can be little doubt that Officer Clark interrogated Solis and Resto to obtain information for future use in a criminal prosecution, and there is no evidence that Officer Clark was responding to some ongoing emergency. Thus, the statements he obtained were “testimonial.” Since defendant did not have an opportunity to cross-examine Solis or Resto, the admission of Officer Clark’s testimony about what Solis and Resto said violated defendant’s constitutional rights. The Attorney General does not attempt to argue otherwise and claims only that the violation was harmless.
Confrontation clause violations are subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681; People v. Louis (1986) 42 Cal.3d 969, 993, disapproved on other grounds in People v. Mickey (1991) 54 Cal.3d 612, 672, fn. 9.) This standard provides that “an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” (Delaware v. Van Arsdall, supra, 475 U.S. at pp. 680-681; see Chapman v. California, supra, 386 U.S. at p. 24.) Factors to consider include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. [Citations.]” (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)
In arguing harmless error, the Attorney General claims the court’s conspiracy instructions precluded the jury from relying on inadmissible evidence to determine defendant’s liability under the theory that three conspired to commit a robbery. The Attorney General also argues that there was overwhelming evidence of guilt.
The prosecutor asserted three theories of liability: defendant directly robbed the victims; defendant aided and abetted Solis and Resto; and defendant was part of an uncharged conspiracy.
Concerning the conspiracy theory, the court told jurors that the prosecutor had to prove that (1) defendant intentionally agreed with others to commit a robbery and (2) one of the conspirators committed an overt act toward that goal. The Attorney General’s claim is based on the court’s further instruction that in determining whether defendant conspired to commit the robbery, “[y]ou may not consider statements made after the goal of the conspiracy had been accomplished.”
The court’s instruction did not prevent jurors from considering information that implied that defendant and the others talked about committing a robbery before committing it. Indeed, the prosecutor explained that Solis’s and Resto’s statements to Officer Clark were “admissible for you to determine whether or not this conspiracy occurred.” Although the court’s instructions required that the jury find some evidence of the conspiracy before considering the statements, the prosecutor argued that the concerted actions of all three implied a conspiracy.
We further note that the jury heard only Officer Clark’s characterization of Solis’s and Resto’s statements. Whatever their actual statements may have been, that characterization unmistakably reflected that defendant participated in planning a robbery. Moreover, Officer Clark’s inability to remember exactly what Solis and Resto had said effectively precluded cross-examination on the subject. Thus, when defendant denied being a part of any discussion about committing a robbery, the credibility of his denial, which should have been balanced against the credibility of Resto and Solis, was up against Officer Clark’s credibility, which perhaps enjoyed a greater aura of believability because of his status than the jury would have accorded Solis and Resto.
Under the circumstances, therefore, we reject the Attorney General’s first argument that the constitutional violation was harmless beyond a reasonable doubt in connection with a determination of guilt under the conspiracy theory.
Nevertheless, we agree with the Attorney General that there was overwhelming evidence of guilt regardless of whether the jury believed defendant planned the robbery with the others. All three robbers were caught near the scene shortly after the incident. Resto had bullets that would work in a gun that police found together with Lara’s property along the escape route Resto had taken. At the scene, Lara immediately identified defendant. He also identified defendant at trial. Defendant admitted to Officer Edgar that he had participated in the robberies. He said it was a bad decision, he knew what he had done was wrong, and he expected to plead guilty. Although he denied making those specific statements, he admitted at trial that he participated in the robberies. He said he acted out of fear and felt coerced. However, he did not say that Solis or Resto threatened him or forced him to participate. And he provided no evidence that he was coerced by anything they said or did.
In our view, the conspiracy theory of liability represented a more complicated theory of liability than theories of direct participation and aiding and abetting. Moreover, the evidence supporting the latter theories did not depend on evidence of preplanning. It was supported most compellingly by defendant’s own admissions to Officer Edgar and his testimony at trial. Thus, although it is possible that the erroneous admission of evidence could have affected a determination under the conspiracy theory, we find no reasonable possibility that it would have had any material effect on a determination of defendant’s guilt as a participant and aider and abettor. Moreover, under the circumstances, we do not find it reasonably possible that jurors might have found defendant guilty as a coconspirator and not also as a direct participant or aider and abettor. Indeed, we consider it inconceivable that all jurors did not agree that defendant was guilty under the latter theories. Accordingly, we conclude that the evidentiary error was harmless beyond a reasonable doubt on the issue of guilt.
We do not reach the same conclusion concerning the gang enhancements. The gang testimony summarized above established that the Norteño subgroups qualify as a criminal street gang, and the Norteños are active in Salinas and can be found in Natividad Creek Park area. The gang testimony also provided an ample basis for the jury to find that defendant, Solis, and Resto were members of or associated with the Norteños.
However, to establish the enhancements, the prosecutor had to prove beyond a reasonable doubt that defendant committed the robberies “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 any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) Although we have found that the evidence, not including the inadmissible testimony about planning, was basically sufficient to support the gang enhancements, that evidence was far less compelling and overwhelming than the evidence that defendant committed the robberies. More importantly, the inadmissible evidence strengthened the prosecution’s case and made it easier to find the enhancements true.
The admissible evidence supporting the enhancements was that the three robbers were gang members, they robbed Lara and Martinez together in a park associated with Norteños, and Officer McKinley opined that a hypothetical robbery incident such as this one would have been committed for the benefit of a gang and with the intent to assist the criminal activity of gang members. Defendant, on the other hand, denied planning the robberies and participating for the benefit of any gang.
We note that although Officer McKinley testified that he had arrested gang members in Natividad Creek Park, and there was gang graffiti there, he did not testify about any gang-related robberies in the park. There was no evidence that Lara and Martinez were wearing clothing or had tattoos that might have identified them as possible rival Sureños. There was no evidence that defendant, Solis, or Resto intentionally identified themselves to Lara and Martinez as gang members or Norteños. And although Resto had gang tattoos, carried a red bandana in his back pocket, and wore a necklace with Norteño words and symbols, there was no evidence that they were visible to Lara and Martinez. There was no evidence that defendant, Solis, or Resto talked about their gang, their gang’s turf, or Sureños. And there was no evidence that they bragged to other gang members about their crimes or shared the spoils of their crimes with gang member or talked about doing so.
In our view, evidence that defendant and his accomplices planned to commit a robbery, the aura of credibility that evidence enjoyed coming from Officer Clark, and the limitations on cross-examining him unfairly undermined the credibility of defendant’s denials. Moreover, evidence that three gang members planned the robbery in advance invested their subsequent conduct with an organizational and premeditated sophistication that would make it seem to be highly consistent with, and just another example of, the pattern of criminal activity that Officer McKinley explained Norteños engage in. Under the circumstances, we cannot say that the erroneous admission of evidence was harmless beyond a reasonable doubt in connection with the jury’s enhancement findings. Accordingly, those enhancements cannot stand.
Because we conclude there was sufficient evidence to support the gang enhancements, retrial is not barred. (See People v. Seel (2004) 34 Cal.4th 535, 545-550; [where, as here, the jury’s finding on a fact-based gang enhancement allegations, increases the punishment for an offense above statutory maximum and where such enhancements are reversed due to insufficient evidence, double jeopardy bars retrial]; U.S. Const., 5th Amend.; Cal. Const., Art. I, § 15.)
V. Disposition
The judgment is reversed and the matter remanded for further proceedings, including resentencing.
WE CONCUR: PREMO, J.ELIA, J.
Deputy Hampson was qualified to testify as an expert, and defendant does not challenge that determination. It is settled that an expert may relate the information upon which an opinion is based even if that information is itself inadmissible. (People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley); Evid. Code, § 802; e.g., People v. Williams (2009) 170 Cal.App.4th 587, 626; People v. Valdez (1997) 58 Cal.App.4th 494, 503.) Thus, it was proper for Deputy Hampson to relate the contents of the jail questionnaires. We note that the court instructed the jury that certain evidence was admitted for a limited purpose and stated that “[d]uring Deputy Hampson’s testimony, People’s Exhibit Number 36 was admitted into evidence.”
Given our disposition, we need not address defendant’s claim that the information he provided to the police and recorded on the jail classification questionnaires was obtained in violation of his Miranda rights because he did not waive those rights before providing it.
However, even if Officer McKinley’s opinion on those issues exceeded the permissible scope of expert testimony, we would not come to a different conclusion concerning the sufficiency of the evidence to support the gang enhancements.