Opinion
E063814
03-21-2017
THE PEOPLE, Plaintiff and Respondent, v. EARL WASHINGTON, JR., Defendant and Appellant.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson, Christopher P. Beesley, and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1302144) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed as modified. Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson, Christopher P. Beesley, and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
After a bench trial in which the prosecution presented evidence defendant Earl Washington, Jr., and four fellow gang members robbed a couple inside their apartment, the court found Washington guilty of two counts of home invasion robbery in concert. The court also found true the allegations the robberies were gang related and a principal had used a firearm. The court sentenced Washington to a total term of 80 years to life, comprised of two life terms with a minimum parole period of 15 years—doubled to 30 years for a prior strike conviction—plus 10-year gang and firearms enhancements for each count. The court stayed the enhancements on count 2.
Washington appeals his conviction and associated sentence, contending the court's finding the robberies were gang related must be reversed because: (1) there is insufficient evidence his gang qualifies as a criminal street gang, and (2) his counsel rendered ineffective assistance by failing to object to gang evidence that violated the rules established in the recent decisions People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde). He also argues his gang and firearm enhancements are unauthorized.
We conclude Washington's arguments challenging the court's gang finding lack merit, but agree his enhancements are unauthorized. We therefore affirm his conviction for two counts of gang-related home invasion robbery in concert, but modify his sentence to strike the enhancements, which reduces his total term to 60 years to life.
I
FACTUAL BACKGROUND
A. The Robberies
On the evening of July 14, 2013, Washington and his four associates robbed a couple in their Adelanto apartment. The couple testified at trial against Washington. We draw the facts of the offense from their testimony.
The victim and his girlfriend were about to watch a movie when their door was kicked in and Washington, Lashawn Perrin, Julian Fautner, Zykeem Lane, and an individual who goes by the name of Day-Day entered their apartment. Lane pointed a gun at the victim's forehead while Fautner punched and choked the victim, asking "Where's the weed? Where's the money? . . . Where's ya'all's stuff at?" The men began ransacking the apartment. Washington watched and directed the others where to look. They took the couple's rent money, video game console, and cell phone. At some point, there was a whistle from outside and the men ran out of the apartment. In the shuffle of fleeing, Washington's baseball hat fell off his head. The hat was black and had an "A" on it.
The police recovered the hat from the couple's apartment and had it DNA tested. At trial, the forensic analyst who performed the test concluded Washington was a possible "major donor" of DNA found on the hat. The chances of a randomly chosen African-American male qualifying as a major donor for the DNA on the hat are 1 in 1.5 quintillion.
At the time of the incident, the couple had been living at the Adelanto apartment complex, commonly referred to as the Black Gates, for about six months. The victim said the Black Gates was a hangout of the Playa Ridas gang. The couple recognized Washington and his associates from the apartment complex. They saw Washington at the complex every day, and the victim's girlfriend said Washington was always wearing the black baseball hat. The victim said he basically grew up with Fautner and had known him a long time.
The victim believed Washington and Perrin were Playa Ridas members. He said Washington went by the moniker "Gangsta" and was one of the Playa Ridas' "big homies," which meant Washington would "recruit[] guys" at the Black Gates to his gang. Perrin was one of Washington's young recruits. The victim was not sure if Fautner or Lane were in Playa Ridas but he said they "hung out" with people from the gang.
The victim said Washington "had the impression that I was the man over there with the weed." He said Washington "would try to talk to me and stuff, trying to get to know me." On the day of the robbery, Washington had asked the victim if he knew where to get marijuana and the victim told him "I'll see." About 30 minutes before the robbery, Washington sent his four associates, one at a time, to the victim's door to tell him "Gangsta" wanted to talk to him. Each time, the girlfriend answered the door and said the victim was not home.
B. Gang Evidence
The gang investigator on Washington's case was San Bernardino County Deputy Sheriff Scott Hamilton. Deputy Hamilton served as the gang investigator for the City of Adelanto from 2011 to 2014. He began his gang training in 2007 when he completed a basic course on gangs as part of his "POST certificate." He is SMASH certified and has completed courses on "gang recognition, policies, subcultures, [and] tattoos." He also received training on gang activity and identifying gang members through his membership in the International Latino Gang Investigators Association and the California Gang Investigators Association.
San Bernardino Movement Against Street Hoodlums.
Before becoming a gang investigator, Deputy Hamilton worked for a year at the West Valley Detention Center and Victor Valley jail, where he spoke with gang members and became familiar with gang "subcultures, taxes on inmates, [and] . . . tattoos." He also worked on patrol before becoming a gang investigator. During this field experience he continued to familiarize himself with High Desert gangs through "field contacts, parole visits, probation checks, arrests, and confidential informants." As gang investigator, he "conducted numerous investigations ranging from burglaries to drug sales on up to attempt[ed] murder to murder" and worked with the San Bernardino County District Attorney gang units and other gang investigators in the High Desert.
Deputy Hamilton was familiar with the gang Playa Ridas from his previous investigations, speaking with other deputies and gang experts, and from field contacts (ranging from arrests to interviews to casual talk) with 30 of their approximately 60 members. He described Playa Ridas as a "black rag-type gang" and one of two predominant gangs in Adelanto (the other being a Hispanic gang called East Side Brown Pride). Members of Playa Ridas wear black or grey. They often go by the name "Riders" and wear Raiders gear. Although Playa Ridas does not claim Crips or Bloods, many of its members have family in those gangs.
Playa Ridas claims as its territory an area of Adelanto bounded by Highway 395 (to the east), Koala Road (to the west), La Habra Avenue (to the North) and Air Expressway (to the south). Commonly used names and symbols are PRG, Young Black Playa Ridas Gang, A (for Adelanto), West Side (because they occupy territory on the west side of Highway 395), 760 (for the area code), and HD (for High Desert). The majority of Playa Ridas members live in the Black Gates apartment complex and another nearby complex commonly called the White Gates.
Deputy Hamilton testified Playa Ridas' "primary purpose" is "to induce fear and intimidation within the community while committing crimes" including grand theft, drug possession and sales, attempted murder, and murder. As examples of the types of crimes Playa Ridas members commit, he testified that Eric Rudison—who had admitted being a Playa Ridas member to him—had been convicted of making criminal threats (§ 422) in 2012. Travon Payne, whom he believed was in Playa Ridas due to Payne's attendance at Washington's trial and Payne's contacts with other officers, had been convicted of assault with a deadly weapon (§ 245, subd. (a)) and active gang participation (§ 186.22, subd. (a)) in 2012. Deputy Hamilton also believed a man named George Exum was in Playa Ridas due to his personal contact with Exum and Exum's "self-admissions." Deputy Hamilton was present for Exum's most recent arrest.
Unlabeled statutory citations refer to the Penal Code.
The prosecution submitted into evidence Exum's abstract of judgment showing he had been convicted of felony marijuana possession for sale (Health & Saf. Code, § 11359) in 2010. The prosecution also submitted abstracts of judgment for Rudison and Payne, corroborating Deputy Hamilton's testimony they had been convicted of enumerated offenses in 2012.
Deputy Hamilton opined Washington was an active member of Playa Ridas and committed the robberies for the benefit of the gang. He based this opinion on an interview he had with Washington in March 2013, on the couple's description of the circumstances of the robbery, and on his general knowledge of how Playa Ridas operates. He first met Washington when he was investigating a crime in 2013. Washington was at Playa Ridas member Tony Beckmon's probation address when he arrived to interview Beckmon. He decided to interview Washington because he noticed Washington had a number of Playa Ridas related tattoos. During the interview, Washington said he was in Playa Ridas and his moniker was Gangsta. He said he had recently been released from prison "for an approximately eleven-year stint for assault on an Apple Valley man" and was not active in the gang at the time. The prosecution showed the court photographs of Washington's tattoos and Deputy Hamilton explained their gang significance. Washington has tattoos that say Gangsta, PRG, HD, A, West Side, Playa Ridas, Playa Ridas Gang, as well as one with the word Ridas in a Raiders symbol.
Deputy Hamilton said he had also reviewed the classification sheet from when Washington was booked into jail for the present offenses in November 2013. The sheet indicated Washington had admitted he was a member of Playa Ridas. Deputy Hamilton also noted Beckmon and Payne were attending Washington's trial. Beckmon and Payne are Washington's cousins, but Deputy Hamilton interpreted their presence to indicate more than support for a family member. He believed the men were there to show "respect and support for their fellow member in PRG."
The prosecution submitted the classification sheet into evidence during the testimony of the officer who conducted Washington's jail intake interview.
To explain why he believed the present offenses were gang related, Deputy Hamilton described how senior members of a gang often form smaller groups or "crews" within the gang by recruiting younger members. The senior members are usually referred to as the "big homie," "OG," or "original Gangsta." When Deputy Hamilton interviewed Fautner after the robberies, Fautner—who was about 18 years old—admitted he was a member of Playa Ridas. Deputy Hamilton believed Fautner was an active Playa Ridas member because of this admission and because he made the sign "PRG" with his hands in a photograph the prosecution submitted to the court. Based on the couple's description of the crime and the events leading up to it, Deputy Hamilton believed Washington was the senior member of a Playa Ridas crew and had orchestrated the robbery in retaliation for the perceived disrespect in the victim's refusal to speak with him earlier in the day when he sent his associates up to the victim's door.
C. Verdict and Sentencing
The trial court found Washington guilty of two counts of first degree robbery (§ 211) and found true the in-concert allegation (§ 213, subd. (a)(1)(A)). The court also found true the allegations the robberies were gang related, a principal was armed with a gun, and Washington had suffered a prior strike conviction for assault with a firearm (§ 245, subd. (a)(2)). The court sentenced Washington to a total term of "80 years to life." For each count, the court imposed an aggravated term of 15 years to life as required under section 186.22, subdivision (b)(4) as punishment for committing a home invasion robbery for the benefit of a gang. The court doubled both terms due to Washington's prior strike conviction, resulting in two terms of 30 years to life. The court then imposed two enhancements on each count—a 10-year gang enhancement under section 186.22, subdivision (b)(1) and a 10-year firearm enhancement under section 12022.53, subdivisions (b) and (e)—but stayed the enhancements on count 2.
II
DISCUSSION
Washington's appeal challenges the evidence supporting the court's finding the robberies were gang related and the propriety of the enhancements. We first address the gang evidence then turn to Washington's meritorious claims regarding the enhancements.
A. Sufficiency of the Evidence Supporting the Gang Allegations
California's gang statute, the Street Terrorism Enforcement and Prevention Act (STEP Act; § 186.20 et seq.) imposes greater punishment for crimes committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (d).) The STEP Act defines a "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [subdivision (e)], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) Thus, there are three elements to the gang definition: (1) the group must consist of three or more people whose association is ongoing and who have a common name or sign; (2) one of its primary activities must be committing one or more enumerated crimes; and (3) its members either separately or as a group must have engaged in a pattern of criminal gang activity. (§ 186.22, subd. (f); People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) Only the second element—primary activities—is at issue here.
Washington contends Deputy Hamilton's opinion about Playa Ridas' primary purpose was too vague and conclusory to qualify as sufficient evidence that one of its "primary activities" was committing statutorily enumerated criminal offenses. We disagree.
"'Our role in considering an insufficiency of the evidence claim is quite limited.'" (In re Alexander L. (2007) 149 Cal.App.4th 605, 610 (Alexander L.).) We review the record in the light most favorable to the judgment, drawing all inferences in favor of the verdict. We do not reassess the credibility of witnesses. Before a verdict may be set aside for insufficient evidence, a party must demonstrate "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (Ibid.)
In People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith), our high court explained the second element of the gang definition as follows: "The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members. . . . 'Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. Section 186.22 . . . requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s]. . . . Similarly, environmental activists or any other group engaged in civil disobedience could not be considered a criminal street gang under the statutory definition unless one of the primary activities of the group was the commission of one of the [25] enumerated crimes found within the statute.'" (Id. at pp. 323-324.)
The Sengpadychith court was concerned with the difference between a criminal enterprise, on the one hand, and an organization with a legal purpose whose members happen to commit enumerated crimes, on the other. In order to prove a group fell under the former category, it described two ways the prosecution could present sufficient primary activities evidence. The prosecution could present evidence of criminal behavior by members so consistent and repeated as to allow the fact finder to conclude the group's chief purpose is criminal. (Sengpadychith, supra, 26 Cal.4th at p. 324.) Alternatively, it could produce a gang expert to describe what he or she believes is the group's chief purpose. (Ibid.) Additionally, the court held the fact finder could consider evidence of both past crimes and "the present or charged offense" when determining whether one of the group's primary activities is committing enumerated crimes. (Id. at p. 323.)
As an example of sufficient evidence using expert opinion, the court cited to People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), where "a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies . . . [and t]he gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on 'his personal investigations of hundreds of crimes committed by gang members,' together with information from colleagues in his own police department and other law enforcement agencies." (Sengpadychith, supra, 26 Cal.4th at p. 324.) We take the Sengpadychith court's approval of the expert testimony in Gardeley to mean when the prosecution opts to prove the primary activities prong under the second method, through expert opinion, the opinion must have an adequate factual foundation.
In People v. Duran (2002) 97 Cal.App.4th 1448, 1465 (Duran), a case decided shortly after Sengpadychith, the expert testified the main activity of the gang Florencia 13 was "putting fear into the community" by committing robberies, assaults with deadly weapons, and narcotics sales. (Duran, at p. 1455.) In addition to this opinion testimony, the prosecution presented evidence the defendant had been involved in an uncharged robbery and that a person whom the expert believed was a Florencia 13 member had previously pled guilty to felony possession of cocaine for sale. (Id. at pp. 1454, 1456.) The appellate court concluded the expert's opinion had an adequate factual basis because it was supported by "his personal experience in the field gathering gang intelligence, contacting gang members, and investigating gang-related crimes." (Id. at p. 1465.) In holding the evidence was sufficient to satisfy the primary activities prong the court noted the prosecution provided corroboration for the expert's opinion in the form of evidence of two crimes committed by Florencia 13 members. (Ibid.)
Here, the prosecution presented stronger primary activities evidence than the evidence in Gardeley and Duran. Deputy Hamilton testified Playa Ridas' "primary purpose" was invoking fear within the community by committing various enumerated crimes—specifically, grand theft, drug sales, attempted murder, and murder. (See § 186.22, subds. (e), (f) [setting forth enumerated crimes].) Like the experts in Duran and Gardeley, he based his opinion on his previous criminal investigations, his contact with numerous members of Playa Ridas, and his discussions with other deputies and gang experts. In addition, the prosecution presented evidence that Rudison, Payne, and Exum, all of whom Deputy Hamilton believed to be gang members (either because they admitted their membership directly to him or to other officers or because they were present at Washington's trial), had committed enumerated offenses in the relatively recent past (2012). This evidence of three enumerated crimes committed by three gang members not involved in the present offense is stronger than the corroborating evidence in Duran, where the prosecution presented evidence of two enumerated crimes, one of which was committed by the defendant. (Duran, supra, 97 Cal.App.4th at pp. 1454, 1456.) Put differently, in this case the prosecution presented evidence of the criminal activity of more of the group's members than the prosecution did in Duran. The more group members who commit enumerated crimes, the more the evidence supports an inference that the group's chief purpose is committing enumerated crimes. (Sengpadychith, supra, 26 Cal.4th at p. 324.)
Washington argues Deputy Hamilton's opinion is insufficient because it lacked details of Rudison, Payne, and Exum's offenses and did not state when the other enumerated offenses of grand theft, drug sales, attempted murder, and murder had been committed. However, this type of detail is not required factual support for a gang expert's primary activities opinion. (See Gardeley, supra, 14 Cal.4th at p. 612 [no evidence of timing of commission of enumerated offenses]; Duran, supra, 97 Cal.App.4th at p. 1465 [same].)
We also reject Washington's contention the prosecution's evidence suffers from the same evidentiary failings the appellate courts identified in Alexander L. and People v. Perez (2004) 118 Cal.App.4th 151 (Perez). In Alexander L., the only evidence of the gang's primary activities was the expert's statement: "'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotics violations.'" (Alexander L., supra, 149 Cal.App.4th at p. 611.) The court found the expert's testimony insufficient because it was not supported by an adequate factual basis and did not help the fact finder determine whether the gang was a criminal enterprise or a group whose members just happened to commit crimes. (Id. at pp. 611-612.) Without testimony describing the factual basis for the expert's opinion, it was "impossible to tell" whether his claimed knowledge of the gang's activities was based on highly reliable sources, such as court records of convictions or his own investigations and conversations with gang members, or on "entirely unreliable hearsay." (Id. at p. 612, fn. omitted.)
In Perez, the jury convicted the defendant of gang-related attempted murder for shooting an Asian teenager. (Perez, supra, 118 Cal.App.4th at p. 153.) The gang expert testified that members of the defendant's gang had attempted to kill another Asian youth six years earlier. (Id. at p. 157.) The prosecution also presented evidence of shootings of Asian youths less than a week before the present shooting, but it was unclear whether members of the defendant's gang were responsible. (Id. at p. 160.) The court concluded this evidence was insufficient because, at best, it showed only that members of the defendant's gang had committed isolated attempted murders. (Ibid.)
Unlike the experts in Alexander L. and Perez, Deputy Hamilton did not testify as to isolated crimes; he explicitly opined that Playa Ridas' main purpose was committing enumerated crimes. And unlike the expert in Alexander L., Deputy Hamilton supported his opinion with an adequate factual basis—namely, personal contact with 30 members, numerous gang trainings, being lead investigator on numerous gang cases, and discussions with other officers regarding their gang investigations.
We therefore conclude the prosecution's evidence was sufficient to satisfy the primary activities element.
B. Ineffective Assistance of Counsel
Washington argues his trial counsel rendered ineffective assistance in two ways. First, by failing to object to Deputy Hamilton's testimony on the ground it was based on testimonial hearsay in violation of Washington's confrontation rights as construed in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Second, by failing to object to the evidence Washington admitted gang membership during his jail intake interview on the ground he was not given a Miranda warning before the interview. Washington contends the recent decisions of Sanchez and Elizalde render the complained of evidence inadmissible and counsel should have preserved objections to the evidence because both cases were pending before the California Supreme Court at the time of trial. We take each contention in turn.
Miranda v. Arizona (1996) 384 U.S. 436.
1. Deputy Hamilton's primary activities opinion
While this appeal was pending, our Supreme Court decided Sanchez, a case concerning the role of hearsay in expert gang testimony. We granted Washington's request to submit a supplemental brief. In that brief, he argues Deputy Hamilton's opinion regarding Playa Ridas' primary activities violates Sanchez (as that decision implements Crawford) because the opinion was based on testimonial hearsay regarding "case-specific facts." As we explain below, the argument fails for the simple reason Deputy Hamilton's primary activities opinion does not pertain to case-specific facts.
In Sanchez, the defendant was charged with active gang participation and felony drug possession for the benefit of a gang. (Sanchez, supra, 63 Cal.4th at p. 671.) In opining the defendant was a member of the "Delhi" gang, the prosecution's gang expert relied on numerous prior police reports and STEP notices describing encounters with the defendant and others. (Id. at p. 672.) On appeal, the defendant argued the contents of the prior police reports and STEP notices constituted testimonial hearsay in violation of Crawford; the People argued the evidence was not admitted for its truth, but only to support the expert's opinion. (Sanchez, at p. 674.)
Officers issue STEP notices to individuals associating with known gang members. "The purpose of the notice is to both provide and gather information." (Sanchez, supra, 63 Cal.4th at p. 672.) In addition to informing the recipient of increased penalties for gang-related crimes, "[t]he issuing officer records the date and time the notice is given, along with other identifying information like descriptions and tattoos, and the identification of the recipient's associates." (Ibid.) --------
The Sanchez court reaffirmed the common-law distinction between expert testimony on general background and expert testimony on "case-specific facts" and "adopt[ed] the following rule: When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay" and are inadmissible "unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at pp. 676, 685-686.)
The court's holding is a response to the widespread use of limiting instructions regarding expert reliance on hearsay. These instructions tell the jury "'that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth.'" (Sanchez, supra, 63 Cal.4th at p. 679, quoting People v. Montiel (1993) 5 Cal.4th 877, 919.) The court explained that the "flaw in the not-for-the-truth limitation when applied to case-specific facts" is that "[w]hen an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth." (Sanchez, at p. 682, italics added.) "In such a case, 'the validity of [the expert's] opinion ultimately turn[s] on the truth.'" (Id. at. pp. 682-683.) The court held the expert's statements relating the contents of the police reports and STEP notices to the jury constituted testimonial hearsay because the statements in those documents were made to investigating police officers and concerned "case-specific facts." (Sanchez, at pp. 694-697; see also id. at pp. 685-686 [testimonial hearsay statements are "'out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial'"].)
But Sanchez's holding does not mean an expert can never rely on hearsay. The court's decision did "not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field." (Sanchez, supra, 63 Cal.4th at p. 685.) The court stated: "Indeed, an expert's background knowledge and experience is what distinguishes him from a lay witness, and, as noted, testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth. Thus, our decision does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise. Our conclusion restores the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Ibid., italics added.) The court defined "case-specific facts" as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.)
Clarifying the distinction between case-specific and background facts, the court noted the defendant had not raised a "confrontation claim against [the expert's] background testimony about general gang behavior or descriptions of the Delhi gang's conduct and its territory." (Sanchez, supra, 63 Cal.4th at p. 698.) Such a claim would have failed because "[that] testimony was based on well-recognized sources in [the expert's] area of expertise. It was relevant and admissible evidence as to the Delhi gang's history and general operations." (Ibid., italics added.)
Here, Deputy Hamilton's opinion about Playa Ridas' primary purpose did not contain any testimony regarding case-specific facts, e.g., facts relating to Washington's gang membership or to whether he committed the robberies for the benefit of Playa Ridas. Rather, Deputy Hamilton's testimony falls squarely under the category of "background testimony" describing a gang's "conduct and its territory" and therefore does not violate Sanchez's prohibition on relaying testimonial hearsay concerning the "participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at pp. 676, 698.) As Sanchez made clear, background testimony is "[not] subject to exclusion as hearsay, even though offered for its truth." (Id. at p. 685.)
In any event, putting aside the distinction between background and case-specific facts, Deputy Hamilton's opinion about Playa Ridas' primary purpose did not contain any testimonial hearsay. He testified he had talked to other investigators and confidential informants, read materials, attended gang trainings, and talked with gang members during field contacts and arrests, but at no point did he testify as to the details of conversations with third persons or the contents of documents he had reviewed. "Introduction of opinion testimony does not violate the Confrontation Clause when the experts rely on their independent judgment—even when this independent judgment is based on inadmissible evidence . . ., [b]ut if the expert is simply 'parrot[ing] "out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of expert opinion,'" the testimony would be inadmissible." (United States v. Kamahele (10th Cir. 2014) 748 F.3d 984, 1000; see also United States v. Johnson (4th Cir. 2009) 587 F.3d 625, 635 ["there will typically be no Crawford problem" where "the expert is, in essence, giving an independent judgment," "applying his training and experience to the sources before him and reaching an independent judgment," and not "merely acting as a transmitter for testimonial hearsay"]; Sanchez, supra, 63 Cal. 4th at pp. 685-686 ["Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so . . . There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception"].)
That Deputy Hamilton used general information to inform his opinion does not mean his primary purpose in obtaining the information was to use it against Washington in a later criminal prosecution. Rather, the information was generally useful to law enforcement as "part of [its] general community policing responsibilities quite separate from any use in some unspecified criminal prosecution." (People v. Valadez (2013) 220 Cal.App.4th 16, 36 ["[N]othing in the consensual encounters with gang members or officers suggests they might have reasonably understood [the] primary purpose [of these witnesses] was to use their statements in a later prosecution"].)
Washington also asserts Deputy Hamilton's testimony that Rudison, Payne, Exum, Fautner, Lane, and Perrin were Playa Ridas members violated Sanchez's prohibition against case-specific testimonial hearsay. We disagree. As an initial matter, because Rudison, Payne, and Exum were not involved in the present offense, the testimony regarding these men does not contain any case-specific facts and therefore does not violate Sanchez.
As to Fautner, Lane, and Perrin, who were co-perpetrators of the present offense, the only testimony arguably containing hearsay was Deputy Hamilton's statement that during an interview Fautner had admitted his gang membership to him. Assuming without deciding that this testimony is inadmissible under Sanchez without a showing Fautner was unavailable (see Evid. Code, § 1230 [declarations against interest are admissible if the declarant is unavailable]), Washington has not explained how the testimony prejudiced him. The fact Fautner was an active gang member tends to show the robberies were committed for the benefit of Playa Ridas. However, the record contains overwhelming evidence proving this element of the gang allegation and therefore any error would be harmless beyond a reasonable doubt. (Sanchez, supra, 63 Cal.4th at p. 698.)
First, there is ample evidence Playa Ridas members committed the crime. Washington has numerous Playa Ridas tattoos and admitted his membership to Deputy Hamilton months before the robbery. The victim testified he recognized Washington as a big homie in Playa Ridas and recognized Perrin as a junior associate. Additionally, the prosecution showed the court a photograph in which Fautner was flashing what Deputy Hamilton described as a Playa Ridas sign.
Second, there is ample evidence the members committed the crime for the benefit of Playa Ridas. The robbery took place at the Black Gates apartment complex, one of the primary Playa Ridas hangouts. During the robbery, Washington wore a black hat with an "A" on it, which Deputy Hamilton opined is a Playa Ridas symbol. The victim testified Washington had asked him for marijuana before the robbery, and both he and his girlfriend described how Washington sent his associates, one-by-one, to their door to tell the victim to speak with Washington. Deputy Hamilton opined that the victim's refusal to do so was the impetus for the robberies. Under gang culture norms, he had shown Washington disrespect and Washington robbed him to send a message about what happens to those who ignore Playa Ridas.
In sum, we conclude Washington's claims of Sanchez violations lack merit and, as a result, trial counsel was not ineffective for failing to object to Deputy Hamilton's testimony.
2. Jail intake admission
At trial, the prosecution admitted a classification form indicating Washington had admitted he was a Playa Ridas member during a jail intake interview. Washington argues his counsel should have objected to this evidence because he was not given a Miranda warning prior to the intake interview.
Washington is correct he was entitled to a Miranda warning during his intake interview. In its recent Elizalde decision, the California Supreme Court held that asking incoming inmates "routine questions about gang affiliation" during intake interviews constitutes custodial interrogation and that admissions of gang membership under those circumstances are not admissible unless the interviewer provided a Miranda warning. (Elizalde, supra, 61 Cal.4th at pp. 527, 533-541.) However, Washington cannot establish a claim for ineffective assistance because his counsel's failure to object to the evidence was not prejudicial. (People v. Kipp (1998) 18 Cal.4th 349, 366 [to successfully claim ineffective assistance, a defendant must demonstrate "counsel's deficient performance . . . 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result'"].) As we just discussed in the previous section, there is overwhelming evidence of Washington's membership in Playa Ridas independent of his admission in the classification form.
C. The Enhancements Are Unauthorized
Like People v. Jones (2009) 47 Cal.4th 566 (Jones) and its companion decision People v. Brookfield (2009) 47 Cal.4th 583 (Brookfield), "[t]his case involves the interplay between two highly complex statutes: section 186.22, which targets participants in criminal street gangs, and section 12022.53, . . . which 'prescribes substantial sentence enhancements for using a firearm in the commission of certain listed felonies.'" (Jones, at p. 570; Brookfield, at p. 588.) Washington argues his gang enhancements are unauthorized because the gang statute's alternate penalty of life imprisonment applies to his offense, to the exclusion of the enhancement. He argues his firearm enhancements are unauthorized because they cannot be imposed in addition to life imprisonment under the gang statute unless he personally used the firearm. The People concede the gang enhancements are unauthorized but argue the firearm enhancements are proper. Jones and Brookfield are squarely on point and make clear all of the enhancements are unauthorized.
1. Section 186.22 and the gang enhancements
Under the STEP Act, "[m]ost felonies committed to benefit a criminal street gang are subject to an additional prison term of two, three, or four years, at the trial court's discretion." (Jones, supra, 47 Cal.4th at p. 571, quoting § 186.22, subd. (b)(1)(A).) "If the underlying crime is a serious felony, the additional term is five years ([§ 186.22,] subd. (b)(1)(B)); if the underlying felony is a violent felony, the additional term is 10 years (id., subd. (b)(1)(C))." (Jones, at p. 571.) However, if the felony is "'a home invasion robbery . . . the sentence is 'an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶] (A) The term determined . . . pursuant to [the determinate sentencing law] for the underlying conviction . . . [or] [¶] (B) [i]mprisonment in the state prison for 15 years.'" (Jones, at p. 571, quoting § 186.22, subd. (b)(4).) Whereas the penalties in subdivision (b)(1) of section 186.22 are enhancements, courts refer to the life term in subdivision (b)(4) as an "alternate penalty." (See, e.g., People v. Briceno (2004) 34 Cal.4th 451, 459.)
The STEP Act's enhancements and alternate penalties are mutually exclusive; if life imprisonment applies to an offense, the enhancements do not. (Jones, supra, 47 Cal.4th at pp. 570-571; People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1008, fn. 2 ["the 10-year enhancement does not apply to the indeterminate life terms specified in section 186.22, subdivision (b)(4)"].) Here, because Washington committed home invasion robbery, the court correctly imposed the alternate penalty of life imprisonment. However, the court should not have also imposed enhancements under 186.22, subdivision (b)(1)(C). We therefore strike the two 10-year gang enhancements from Washington's sentence. (People v. Scott (1994) 9 Cal.4th 331, 354 [appellate court may correct unauthorized sentence].)
2. Section 12022.53 and the firearm enhancements
"Section 12022.53 imposes increasingly severe sentence enhancements for those who use firearms in the commission of certain felonies listed in subdivision (a) of that section." (Jones, supra, 47 Cal.4th at p. 571.) The list of felonies includes robbery. (§ 12022.53, subd. (a)(4).)
Section 12022.53 authorizes enhancements when a defendant personally uses a firearm or when a principal in the crime uses a firearm. However, if the enhancement is based on a principal's use, the prosecution must also plead and prove the crime was committed to benefit a gang under section 186.22, subdivision (b). (§ 12022.53, subd. (e).)
"Subdivision (e) of section 12022.53 explains how a trial court is to sentence a defendant in a case in which the provisions of sections 186.22 and 12022.53 both apply." (Brookfield, supra, 47 Cal.4th at p. 590.) That provision states, "there is no imposition of an 'enhancement for participation in a criminal street gang . . . in addition to an enhancement imposed pursuant to' section 12022.53" when the basis for the firearm enhancement is a principal's use. (Ibid., quoting § 12022.53, subd. (e)(2).) Put differently, section 12022.53, subdivision (e) allows a court to impose both firearm and gang enhancements only when the defendant personally used the firearm. (Brookfield, at p. 590.)
Washington correctly points out that because the court imposed life terms under the gang statute and because the undisputed evidence was that Lane, not he, used a gun during the robbery, his firearm enhancement is improper. The People argue the enhancement is proper because the caveat in section 12022.53, subdivision (e) applies only where a court has imposed a gang enhancement. They argue the caveat does not apply where a court imposes an alternate penalty like the one found in section 186.22, subdivision (b)(4).
This is the same argument the California Supreme Court rejected in Brookfield. The People had argued the word "enhancement" in section 12022.53, subdivision (e)(2) should be interpreted narrowly to apply only to the enhancements in the gang statute and not the alternate penalties. (Brookfield, supra, 47 Cal.4th at pp. 591-592.) The court disagreed and held "the word 'enhancement' in section 12022.53(e)(2) refers to both the sentence enhancements in section 186.22 and the penalty provisions in that statute." (Id. at p. 595, italics added.) Based on this interpretation of section 12022.53, subdivision (e)(2), the court concluded "[t]he trial court erred in sentencing defendant to both the life term under section 186.22(b)(4) and the 10-year sentence enhancement under subdivisions (b) and (e)(1) of section 12022.53" and therefore upheld the appellate court's decision to strike the 10-year firearm enhancement. (Brookfield, at p. 597.) Under Brookfield, Washington cannot be subject to life terms under the gang statute as well as section 12022.53 firearm enhancements when he did not personally use the firearm. We therefore also strike the firearm enhancements.
III
DISPOSITION
We modify Washington's sentence by striking the two gang enhancements under section 186.22 and the two firearm enhancements under section 12022.53. In all other respects, we affirm the judgment. The trial court is directed to modify the minute order and abstract of judgment to reflect Washington's new sentence and to deliver a certified copy of the modified minute order and abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: MILLER
Acting P. J. CODRINGTON
J.