Opinion
D074045
09-19-2018
THE PEOPLE, Plaintiff and Respondent, v. DONALD LEWIS WINN, Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1501224) APPEAL from a judgment of the Superior Court of San Bernardino County, Ronald M. Christianson, Judge. Affirmed as modified. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Donald Lewis Winn of criminal conspiracy (Pen. Code, § 182, subd. (a)(1)) and found true a related criminal street gang enhancement (id., § 186.22, subd. (b)(1)). The object of the conspiracy was to possess phencyclidine (PCP) for sale, in violation of Health and Safety Code section 11378.5. In bifurcated proceedings, the court found that Winn had two prior serious felony convictions. (Pen. Code, § 667, subds. (a), (c).) The court sentenced Winn to a total term of 35 years to life imprisonment, consisting of 25 years to life for the conspiracy conviction (Pen. Code, § 667, subd. (e)(2)(A)(ii)) plus five years for each of Winn's two prior serious felony convictions (id., § 667, subd. (a)(1)).
Further statutory references are to the Penal Code unless otherwise specified.
Winn appeals. He contends (1) the evidence does not support his conviction for criminal conspiracy; (2) the evidence does not support the criminal street gang enhancement; (3) the trial court erred by not instructing the jury sua sponte with the name of the gang at issue in the criminal street gang enhancement; (4) the court erred by admitting gang expert testimony in violation of the hearsay rule and the Confrontation Clause; (5) the court erred by imposing two five-year sentence enhancements under section 667, subdivision (a)(1); and (6) the court erred by imposing a "court operation security fee" of $70.
We conclude that certain gang expert testimony was inadmissible, but any error was harmless. Winn's other contentions are likewise unpersuasive, with the exception of a minor descriptive error regarding fees. We will modify the judgment to correct the error and affirm the judgment as modified.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
On February 26, 2015, Winn called Lamont Arnold, a member of the Du Roc Crips criminal street gang, and asked to buy $20 of PCP. Arnold agreed, and they decided to meet at a liquor store nearby. Winn drove over with Sarah C., who sometimes worked as a prostitute for him. When they arrived at the liquor store, Sarah walked over to Arnold's car, retrieved something, and went back to Winn's car.
Police officers had tapped Arnold's phone as part of a broader investigation into criminal street gangs and narcotics trafficking in San Bernardino County. Based on the conversation between Arnold and Winn, they surveilled the liquor store and watched the transaction. Afterward, police officers followed Winn and Sarah back to the motel where they were staying. A subsequent search of Winn's motel room revealed a usable quantity of PCP in the room's refrigerator freezer. Under questioning by police officers, Winn admitted using PCP but denied selling it to anyone else. The officers did not arrest Winn at the time. They wanted to continue their investigation.
A week later, Winn called Arnold again. Winn told Arnold he had a friend named "CC" who wanted to "try a glass of water," i.e., buy PCP, and Winn had given him Arnold's number. Arnold responded, "Alright. That'll work." After a few minutes, Winn called Arnold with CC, either on the same line or physically with him. Winn said CC "wanna holla," and CC greeted Arnold with "[t]op of the morning Rock Star." Arnold said, "Top of the morning Crip." After some discussion, CC asked in coded language to buy $75 to $100 of PCP. CC said he might be buying that day, but if not that day then later in the week. He said he thought he already had Arnold's number, but it must have been an old number. CC and Arnold started to talk about some arguments CC was having with other people related to the Du Roc Crips gang, but the line cut off. Wiretap records revealed 20 calls between Arnold and Winn over a 30-day period.
Arnold sold PCP to other individuals. He was also involved in various disputes in the Du Roc Crips criminal street gang. One gang member called Arnold from prison to discuss gang politics and, apparently, to discuss killing an individual who was out of prison. Arnold himself wanted to kill another member of the Du Roc Crips. Police officers surveilled a Du Roc Crips gathering in an effort to prevent the murder. Arnold had numerous Du Roc Crips tattoos, including on his face.
One of Arnold's PCP suppliers was Billy Fenter, a member of the Mob Piru gang. On March 11, 2015, police officers tracked Fenter to a convenience store. Officers stopped Fenter and searched him. They found over ten vials of PCP, methamphetamine, and a large amount of cash. The officers went to a residence associated with Fenter and discovered a PCP manufacturing operation with over five gallons of finished and unfinished PCP.
Jonathan Plummer, an officer with the San Bernardino Police Department, was involved in the investigation that led to Winn's prosecution. He testified as a gang expert at trial. He identified the Du Roc Crips criminal street gang and explained that its primary activities "could go from murder, attempted murder, robbery, prostitution, solicitation to commit murder, [and] narcotic sales, ranging from the sales of PCP, . . . sales of crack cocaine and cocaine base, sales of methamphetamine," and "firearm possession." He said its primary purpose was to engage in criminal activities. He identified three prior crimes committed by individuals who were, in his opinion, Du Roc Crips gang members. He testified that Du Roc Crips gang members used terms like "Rock Star" or "Crip" to show their allegiance to the gang.
Plummer opined, based on Winn's calls with Arnold, that Winn was acting in association with the Du Roc Crips gang. He explained, "If an individual is requesting to send someone else that person's way to purchase a product, there's some type of trust there. So [Winn is] telling [Arnold] that, I have someone who wants to purchase something from you. So, right there, as an investigator, that is a key component for me. [¶] The second part is the introduction. Once the person gets on the phone, they obviously greet this individual as 'Rock Star.' As I talked about earlier in my testimony, that is a common term used to describe a Du Roc Crip gang member. And then [Arnold] also follows back by identifying that individual as 'Crip.' " Based on this exchange, Plummer believed that CC was a Du Roc Crips member as well. Plummer testified that Arnold went to Los Angeles County with another Du Roc Crips gang member to transport suspected PCP back to San Bernardino County.
Plummer cautioned that if Winn had merely bought PCP from Arnold, without putting CC in contact with Arnold, he would not be sure that Winn were acting in association with the Du Roc Crips gang. In that situation, Arnold's purchase of PCP would solely have been for his personal use. Similarly, even with the contact between Arnold and CC, Plummer would not connect Winn to Fenter's gang, Mob Piru.
In Plummer's view, narcotics sales benefitted the Du Roc Crips gang because they helped gang members buy consumer goods that enhanced the status of the gang and weapons that supported further criminal activity. For example, Plummer testified that Arnold used money from his narcotics sales to buy firearms because "he had an ongoing issue with an individual who he was trying to murder."
In response to a hypothetical question mirroring the facts of Winn's involvement with Arnold and CC, Plummer testified that Winn acted with the specific intent to promote, further, or assist in criminal conduct by members of a criminal street gang. Winn, as the person who set up his dealer with a new client, assisted that dealer in his criminal enterprise of selling narcotics.
DISCUSSION
I
Sufficiency of the Evidence: Conspiracy
Winn first contends the evidence does not support his conviction for criminal conspiracy. Our standard of review is well-settled: "On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " [Citations.]' [Citation.] ' "Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." ' " (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
"Section 182 prohibits a conspiracy by two or more people to 'commit any crime.' (§ 182, subd. (a)(1).) 'A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy.' " (People v. Johnson (2013) 57 Cal.4th 250, 257 (Johnson).)
" 'Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.' [Citations.] Conspiracy separately punishes not the completed crime, or even its attempt. The crime of conspiracy punishes the agreement itself and 'does not require the commission of the substantive offense that is the object of the conspiracy.' " (Johnson, supra, 57 Cal.4th at p. 258.) "Collaboration in a criminal enterprise significantly magnifies the risks to society by increasing the amount of injury that may be inflicted. Public policy therefore requires that criminal conspirators be held liable whether or not their scheme actually is carried out, thus justifying intervention by the state at an earlier stage in the course of that conduct." (People v. Morante (1999) 20 Cal.4th 403, 416, fn. 5 (Morante).)
"Evidence is sufficient to prove a conspiracy to commit a crime 'if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.) "The overt acts charged as part of the conspiracy can be circumstantial evidence of its existence. ' "Such acts may establish the purpose and intent of the conspiracy and relate back to the agreement whose purpose may be otherwise enshrouded in the hush-hush admonitions of the conspirators." ' " (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.)
The target of the conspiracy at issue here was the offense of possession of PCP for sale. (Health & Saf. Code, § 11378.5.) "The elements of the offense of possession of PCP or other restricted drugs for sale are physical or constructive possession with knowledge of the presence and narcotic character of the drugs [citations] for the purpose of sale [citation]. To establish possession, it must be shown that the accused exercised dominion and control over the contraband." (People v. Johnson (1984) 158 Cal.App.3d 850, 853.) To meet the "for purpose of sale" element, a person must possess PCP with the specific intent to sell it. (In re Christopher B. (1990) 219 Cal.App.3d 455, 466 (Christopher B.).)
Here, the jury could reasonably find that Winn intended to agree with Arnold to possess PCP for the purpose of sale and did in fact make such an agreement. Winn knew that Arnold possessed and sold PCP based on his earlier personal PCP purchase, and he specifically asked Arnold whether he could introduce him to another customer. Arnold agreed. Winn then called Arnold with the prospective customer, CC. The jury could infer that Winn's act of introducing CC to Arnold was in furtherance of their agreement to possess PCP for sale—in this case, sale to CC.
Similarly, the jury could find that Winn intended that each element of the target offense be committed. The jury could infer such intent based on Winn's efforts to connect Arnold and CC, with the explicit purpose that Arnold could sell PCP to CC. In order to complete such a sale, Arnold would have to personally commit each element of the target offense. Because the evidence showed that Winn wanted the sale to occur, the jury could infer that Winn intended that each element of the target offense be committed.
Relying on People v. Powers-Monachello (2010) 189 Cal.App.4th 400 (Powers), Winn argues that his conviction must be reversed because the evidence does not support the inference that he intended to possess PCP jointly with other coconspirators for purposes of sale. Winn misapplies Powers. In that case, the defendant was the member of the conspiracy who personally held the controlled substance, cocaine. The relevant issue was whether the defendant intended to possess cocaine individually for use or sale or whether he intended to possess cocaine jointly in furtherance of a conspiracy. Powers explained, "The elements of the conspiracy charge include two required showings of intent: intent to agree and actual agreement to possess cocaine for sale, as well as intent for the coconspirators to possess cocaine for sale (§ 182, subd. (a)). Considered together, these elements refer to the intent to possess cocaine for sale jointly and must be distinguished from the similar but distinct intent to possess cocaine individually." (Id. at p. 411.) In this passage, Powers distinguished a purely individual offense from a conspiracy to commit the same offense, where it was undisputed that the defendant personally possessed cocaine.
Here, the evidence showed that Winn intended and agreed with Arnold that Arnold would possess PCP for sale to CC. Based on this agreement, Winn intended that Arnold's possession would be joint, i.e., in furtherance of the conspiracy and not merely an individual matter. The prosecution was not required to show that Winn intended to actually or constructively possess PCP himself. It merely had to show that Winn intended that the element be committed pursuant to the conspiracy. Just as a conspiracy to commit murder does not require proof that each conspirator intended to personally murder the victim, a conspiracy to possess PCP for sale does not require proof that each conspirator intended to personally possess PCP, whether actually or constructively. (See, e.g., People v. Garton (2018) 4 Cal.5th 485, 515-517 [conspiracy to commit murder].)
Winn likewise misinterprets Morante, supra, 20 Cal.4th at page 417, which explained that the offense of possession for sale may be "based upon either actual or constructive possession of the substance." In this passage, Morante discussed the offense itself, not conspiracy. (Ibid.) It did not imply that every coconspirator must intend to have actual or constructive possession of the controlled substance himself or herself. A conspirator must only intend and agree that the elements of possession for sale be committed by the conspiracy.
Winn emphasizes that the evidence does not show whether CC ever purchased PCP from Arnold, whether Winn personally was involved in the purchase, whether Winn benefitted from the completion of the purchase, or whether Winn knew about the wider scheme involving Fenter and other suppliers. But Winn's conviction does not require evidence of any of these facts. Conspiracy does not require a completed offense (Johnson, supra, 57 Cal.4th at p. 258), and even the target offense here (possession of PCP for sale) does not require a completed transaction (Christopher B., supra, 219 Cal.App.3d at p. 466). Winn may be liable as a coconspirator without any showing that he benefitted from the conspiracy (People v. Johnson (1969) 276 Cal.App.2d 232, 237)—though a jury could reasonably infer that Winn stood to benefit by ingratiating himself with his PCP dealer. And a conspirator may be liable without knowing the full scope or extent of the conspiracy. (Ibid.; accord, People v. Ochoa (2016) 248 Cal.App.4th 15, 30.)
Winn references the buyer-seller rule, which precludes conspiracy liability where the only relationship between the conspirators is that of a buyer and seller of controlled substances. This rule, while prevalent in other jurisdictions, has not yet been adopted in California. (See, e.g., United States v. Moe (9th Cir. 2015) 781 F.3d 1120, 1128; People v. Stroud (2009) 392 Ill.App.3d 776, 801; Zuniga v. Commonwealth (1988) 7 Va.App. 523, 529.) We need not decide whether to apply the buyer-seller rule. Even if the buyer-seller rule applied, the evidence would be sufficient to convict Winn of conspiracy because the evidence showed that his relationship with Arnold went beyond a simple buyer-seller relationship. As we have explained, Winn found another customer for Arnold and set up a PCP purchase unrelated to his own purchase of PCP. "[W]here the evidence has supported the inference that a defendant agreed to participate in the conspiracy beyond simply buying or selling we have upheld the conviction." (United States v. Hawkins (2d Cir. 2008) 547 F.3d 66, 72 [applying the buyer-seller rule].)
Winn argues that he might not have intended that Arnold sell PCP to CC and that his only role was to reconnect them after CC no longer had Arnold's current number. These inferences run counter to the jury's view of the evidence and are therefore precluded by our standard of review. Our role is not to independently assess the evidence; it is simply to determine whether the jury could reasonably find Winn guilty beyond a reasonable doubt. "That the evidence might lead to a different verdict does not warrant a conclusion that the evidence supporting the verdict is insubstantial." (People v. Holt (1997) 15 Cal.4th 619, 669.) Winn has not shown that the evidence does not support his conspiracy conviction.
II
Sufficiency of the Evidence: Gang Enhancement
Winn next contends the evidence does not support the jury's finding on the criminal street gang enhancement. We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. (People v. Wilson (2008) 44 Cal.4th 758, 806; accord, People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
The gang enhancement applies to "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) "There are two prongs to the gang enhancement under section 186.22, subdivision (b)(1), both of which must be established by the evidence. [Citation.] The first prong requires proof that the underlying felony was 'gang related,' that is, the defendant committed the charged offense 'for the benefit of, at the direction of, or in association with any criminal street gang.' [Citations.] The second prong 'requires that a defendant commit the gang-related felony "with the specific intent to promote, further, or assist in any criminal conduct by gang members." ' " (People v. Franklin (2016) 248 Cal.App.4th 938, 948 (Franklin).) A defendant need not be a member of a gang in order for the gang enhancement to apply. (Albillar, supra, 51 Cal.4th at pp. 67-68.)
Winn challenges only the sufficiency of the evidence supporting the first prong of the gang enhancement. Under the first prong, the evidence must show that the instant offense was committed for the benefit of, at the direction of, or in association with any criminal street gang. Any one of these elements—benefit, direction, or association—is sufficient to satisfy this prong. (People v. Weddington (2016) 246 Cal.App.4th 468, 484 (Weddington).) Here, for reasons we will explain, the evidence supports at least the association element.
Based on the evidence, the jury could reasonably find that Winn conspired with Arnold, a Du Roc Crips gang member, to possess PCP for sale to CC, another Du Roc Crips gang member. The jury could infer that Winn knew Arnold and CC were Du Roc Crips gang members based on their phone conversation (including where they referred to each other as "Rock Star" and "Crip") and, for Arnold, based on his Du Roc Crips facial tattoo and Winn's apparent close relationship with him. "Committing a crime in concert with known gang members can be substantial evidence that the crime was committed in 'association' with a gang." (People v. Garcia (2016) 244 Cal.App.4th 1349, 1367 (Garcia); see Albillar, supra, 51 Cal.4th at p. 62; Weddington, supra, 246 Cal.App.4th at p. 484.)
In addition, the evidence showed that Arnold and CC referenced their gang membership when they initially spoke, thereby invoking their mutual allegiance as members of the gang. They did not simply speak as individuals, but as members of the same gang as well. The connection to the Du Roc Crips gang was further supported by evidence that another member of the Du Roc Crips accompanied Arnold on a trip to Los Angeles to pick up PCP for sale. Based on the evidence, Plummer testified that the offense was committed in association with the Du Roc Crips gang. On this record, Winn's conspiracy with Arnold was sufficiently related to the Du Roc Crips gang to support the jury's finding that the conspiracy was committed in association with that gang under the first prong of the gang enhancement.
Resisting this conclusion, Winn relies on Franklin, supra, 248 Cal.App.4th 938. In that case, the defendant threatened his girlfriend, burglarized her home, and falsely imprisoned her. (Id. at pp. 942-944.) The defendant was a member of the Jim Town criminal street gang. (Id. at pp. 944-945.) During the ordeal, the defendant drove the victim to a Pico Viejo gang hideout, outside of Jim Town gang territory, and enlisted the help of two White Fence gang members. (Id. at pp. 943-944.) Later, the defendant took the victim to the home of a Pico Viejo gang member, whom the defendant warned not to let the victim go. (Id. at p. 944.) A gang expert opined that the defendant committed the crimes in association with the Jim Town gang. (Id. at p. 946.) The jury found true a criminal street gang enhancement. (Id. at p. 942.)
Franklin held that the evidence was insufficient to support either prong of the gang enhancement. (Franklin, supra, 248 Cal.App.4th at p. 952.) It explained, "The record . . . contains no showing that [defendant] committed his crimes in association with other members of the Jim Town gang." (Id. at p. 950.) Moreover, "there was no evidence whatsoever to demonstrate any associational or organizational connection among the White Fence, Pico Viejo, Pico Nuevo, or Jim Town gangs." (Id. at pp. 950-951.) While the gang expert speculated that they might all be linked to the Mexican Mafia gang, there was no evidence to support that assertion. (Id. at p. 951.) Franklin concluded, "The prosecution simply failed to demonstrate any basis for treating these disparate gangs as a single organization, and thus failed to prove the gang allegation on the theory that appellant committed these crimes in association with the Jim Town gang." (Ibid., fn. omitted.)
Franklin bears little resemblance to the circumstances here. The crimes in Franklin stemmed from a personal dispute unrelated to the Jim Town gang, and their commission did not involve any Jim Town gang members, other than the defendant, or any Jim Town gang instrumentalities. Here, by contrast, the object of the conspiracy was the possession of PCP for sale by one Du Roc Crips gang member (Arnold) to another Du Roc Crips gang member (CC), with at least one other Du Roc Crips gang member involved in the broader drug distribution operation. When Winn set up the call between Arnold and CC, they greeted each other by referencing the Du Roc Crips gang and later discussed gang politics. Unlike Franklin, the connection between the offense and a criminal street gang is apparent.
Although another gang, Mob Piru, was mentioned in connection with the broader scheme, it is clear from the record that the prosecution's theory was that Winn's offense was related to the Du Roc Crips gang only. Unlike Franklin, the prosecution did not try to show the connection to the Du Roc Crips through a connection to another gang or a larger umbrella group. (Cf. Franklin, supra, 248 Cal.App.4th at p. 950; see People v. Prunty (2015) 62 Cal.4th 59, 82, 84-85 (Prunty).) Instead, the prosecution's evidence focused exclusively on the activities and crimes of the Du Roc Crips. (See Garcia, supra, 244 Cal.App.4th at pp. 1368-1369.) The references to Mob Piru at trial were limited and insignificant. No reasonable juror would have been confused regarding the prosecution's theory.
Winn's reliance on People v. Ochoa (2009) 179 Cal.App.4th 650 and People v. Ramon (2009) 175 Cal.App.4th 843 is similarly unavailing. Ochoa involved a carjacking by a lone gang member, without any other evidence connecting the offense to the defendant's gang. (Ochoa, at pp. 662-665.) The court therefore held that the evidence was insufficient to support the first prong of the gang enhancement. (Id. at p. 665.) Ramon involved a gang member who was arrested with a fellow gang member in a stolen car with an unregistered firearm. (Ramon, at p. 846.) It primarily held that the evidence was insufficient to support the second prong of the gang enhancement. (Id. at p. 853.) It did not consider whether the evidence would support the "in association with" element of the first prong. As Ochoa itself later commented, "Ultimately, the fact in Ramon that the defendant had a fellow gang member in the stolen vehicle with him would support a finding that he acted in association with the gang." (Ochoa, at p. 661, fn. 7.) We likewise conclude the evidence here supported the jury's first-prong gang enhancement finding based on the "in association with" element.
Lastly, although Winn does not challenge the sufficiency of the evidence supporting the second prong of the gang enhancement, we note the jury could reasonably find that Winn acted with the specific intent to promote, further, or assist in criminal conduct by a gang member, i.e., Arnold, as required by that prong. (See Albillar, supra, 51 Cal.4th at p. 68 ["[I]f 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."].)
In a related argument, Winn contends the trial court erred by denying his motion for a new trial. (§ 1181.) In the motion, Winn argued that the evidence was insufficient to support his conspiracy conviction and the jury's gang enhancement finding. We reject Winn's argument for the same reasons as stated in this part and the previous part. Given this conclusion, we need not discuss whether the admission of evidence supporting the gang enhancement was prejudicial to the conspiracy conviction, on the theory that the gang enhancement should not have been submitted to the jury because it was not supported by the evidence.
III
Instructional Error
Winn contends the trial court erred by not identifying the Du Roc Crips gang in its jury instructions on the criminal street gang enhancement. The court instructed the jury with a slightly modified version of CALCRIM No. 1401. The instruction references "a criminal street gang" generically. For example, it states in part, "you must then decide whether . . . the People have proved the additional allegation that the defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang." The instruction describes the elements of the criminal street gang enhancement and defines a "criminal street gang" for purposes of the enhancement. The court tailored the instruction to reference the specific predicate crimes committed by Du Roc Crips gang members introduced into evidence.
The court's instruction reads, in full, as follows: "If you find the defendant guilty of the crime charged in Count 1, you must then decide whether for that crime the People have proved the additional allegation that the defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang. You must decide whether the People have proved this allegation for each crime and return a separate finding for that crime. [¶] To prove this allegation, the People must prove that: [¶] 1. The defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang, and; [¶] 2. The defendant intended to assist, further or promote criminal conduct by gang members. [¶] A criminal street gang is any ongoing organization, association or group of three or more persons, whether formal or informal: [¶] 1. That has a common name or common identifying sign[s] or symbol[s]; [¶] 2. That has as one or more of its primary activities the commission of Penal Code Section 211, robbery; Health and Safety Code Section 11378, possession of a controlled substance for sale; [and] Penal Code Section 29800(a), unlawful possession of a firearm; [¶] AND [¶] 3. Whose members, whether acting alone or together, engaged in or have engaged in a pattern of criminal gang activity. [¶] In order to qualify as a primary activity, the crime must be one of the group's chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group. [¶] A pattern of criminal gang activity as used here means: [¶] 1. Any combination of two or more of the following crimes or two or more occurrences of Health and Safety Code Section 11378.5, possession of a controlled substance for sale; Penal Code Section 664/207, attempted kidnapping, or; Penal Code Section 12021, felon in possession of a firearm. [¶] AND. [¶] 2. At least one of those crimes was committed after September 26th, 1988; [¶] 3. The most recent crime occurred within three years of one of the earlier crimes, and; [¶] 4. The crimes were committed on separate occasions or were personally committed by two or more persons. [¶] The crimes, if any, that establish a pattern of criminal gang activity, need not be gang-related. [¶] The People need not prove that the defendant is an active or current member of the alleged criminal street gang. [¶] If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group's primary activities was commission of that crime and whether a pattern of criminal gang activity has been proved. [¶] You may not find that there was a pattern of criminal gang activity unless all of you agree that two or more crimes that satisfy these requirements were committed . . . . [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved."
Winn did not object to the instruction at trial. We therefore conclude he has forfeited his contention that the instruction should have been clarified to specify that the Du Roc Crips gang was the criminal street gang at issue in this case. (See People v. Maury (2003) 30 Cal.4th 342, 426 (Maury) [" 'Defendant's contention essentially is that the instructions given needed amplification or explanation; but since he did not request such amplification or explanation, error cannot now be predicated upon the trial court's failure to give them on its own motion.' "].)
Even if we were to consider Winn's contention on its merits, and assume the court erred by not specifically identifying the Du Roc Crips, we would conclude Winn has not shown prejudice. Winn and the Attorney General agree that we apply the Watson standard of prejudice: " '[W]hether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.' " (People v. Dickey (2005) 35 Cal.4th 884, 905; see People v. Breverman (1998) 19 Cal.4th 142, 165; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Here, the jury instructions correctly described the required elements to identify a criminal street gang and show that the charged offense was committed for the benefit of, at the direction of, or in association with that gang. At trial, the only evidence supporting the elements of the criminal street gang enhancement involved the Du Roc Crips; no similar evidence was introduced for any other group. Plummer testified that the elements of the gang enhancement were satisfied by the Du Roc Crips; he did not indicate that any other group would satisfy those elements. The prosecutor argued in closing argument that the gang enhancement was based on the Du Roc Crips, not any other group. Indeed, given the specific predicate crimes specified by the instruction, no other group mentioned at trial could have satisfied the gang enhancement elements at this trial. Under these circumstances, it is not reasonably probable that identifying the Du Roc Crips in the court's jury instructions would have resulted in a more favorable outcome for Winn.
Winn claims that, under the court's instructions, the jury could have relied on Fenter's connection to Mob Piru to find that the offense here was gang-related. But under the instructions, in order to rely on Mob Piru to impose the gang enhancement, the evidence would have to show that Mob Piru satisfied the elements of a criminal street gang. As noted above, no such evidence was introduced. And, even if it had been, there is no evidence that Winn knew of Fenter or his gang connection, which would be required for Winn to specifically intend to promote criminal activity by Fenter. Even Plummer, on cross examination, disclaimed relying on any connection between Winn and Mob Piru in formulating his opinions. Under these circumstances, Winn has not shown prejudice.
Winn relies on Prunty, supra, 62 Cal.4th 59, but that opinion has no application here. Prunty did not involve instructional error. Instead, the Supreme Court considered whether the evidence was sufficient to prove the existence of a criminal street gang. (Id. at p. 81.) The Supreme Court held that the evidence did not prove the existence of a criminal street gang because the evidence related to various groups that were not shown to constitute a single criminal street gang. It explained, "[T]he prosecution failed to prove the existence of a single 'criminal street gang' . . . that fit the prosecution's theory of why the gang enhancement applied in this case. The critical shortcoming in the prosecution's evidence was the lack of an associational or organizational connection between the two alleged Norteño subsets that committed the requisite predicate offenses, and the larger Norteño gang that [the defendant] allegedly assaulted [the victim] to benefit." (Ibid.)
Here, as we have explained, the evidence supported the jury's gang enhancement finding based on the Du Roc Crips. Unlike Prunty, the prosecution here did not rely on any other gangs or groups to establish the gang enhancement. Indeed, given the lack of evidence regarding any other gang, the jury's verdict must have been based on the Du Roc Crips. No reasonable juror could have based his or her verdict on Mob Piru. Under these circumstances, it made no difference whether the jury instruction specified the Du Roc Crips or not. (See Maury, supra, 30 Cal.4th at p. 426.)
IV
Gang Expert Testimony
Winn argues the trial court erred by admitting certain testimony from Jonathan Plummer, the prosecution's gang expert, under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Sanchez held, among other things, that a gang expert may not "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.) The Attorney General concedes that certain testimony was inadmissible under Sanchez, but he argues that any error was harmless. We conclude that certain gang expert testimony was inadmissible hearsay. But, under the applicable standard of review, any error was harmless.
The Attorney General also argues, as an initial matter, that Winn has forfeited any claim of error based on Sanchez because he did not consistently object to Plummer's testimony in the trial court. While Sanchez had not been decided at the time of Winn's trial, the Attorney General claims that competent defense counsel should have anticipated Sanchez's holding based on the trend of prior decisions of our Supreme Court and the United States Supreme Court. The Courts of Appeal have reached differing conclusions on this issue. (See People v. Veamatahau (2018) 24 Cal.App.5th 68, 72, fn. 7 [collecting cases].) It is currently before our Supreme Court. (See People v. Perez (2018) 22 Cal.App.5th 201, review granted July 18, 2018, S248730.) Pending further guidance from the Supreme Court, we find the opinions declining to find forfeiture persuasive. (See People v. Flint (2018) 22 Cal.App.5th 983, 996-998; Veamatahau, at p. 72; Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1283; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508; People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7, review granted Mar. 22, 2017, S239442 (Meraz); see also In re Ruedas (2018) 23 Cal.App.5th 777, 795-797.) We therefore conclude that Winn did not forfeit his argument by failing to object.
A. Summary of Expert Testimony
As indicated in the factual summary above, Plummer's testimony was wide-ranging. He testified regarding the background and primary activities of the Du Roc Crips criminal street gang, the gang membership of various relevant individuals, the commission of predicate offenses by Du Roc Crips gang members, and the relationship between the charged offense and the Du Roc Crips gang. We will describe the challenged portions of Plummer's testimony in some detail below.
Plummer testified that he was part of the investigation into gang activity and narcotics trafficking in San Bernardino County that led to Winn's arrest. He testified about the origin of the Du Roc Crips criminal street gang, its affiliations and rivals, its colors, and its members' distinctive tattoos. He explained that he learned about the Du Roc Crips through "arresting several members, authoring search warrants on the criminal street gang, participating in several gang investigations that have [led] me into San Bernardino County, also into the city of Monrovia, [where] the gang was formed, and also Duarte. . . . I have debriefed and spoke[n] to several members from this criminal street gang."
Plummer testified that the Du Roc Crips' primary activities "could go from murder, attempted murder, robbery, prostitution, solicitation to commit murder, [and] narcotic sales, ranging from the sales of PCP, . . . sales of crack cocaine and cocaine base, sales of methamphetamine," and "firearm possession." He identified the statutes defining each of these offenses. He opined that the Du Roc Crips' primary purpose was to engage in criminal activity. Plummer based his opinion on his own investigations, his involvement in task forces with other police departments, his own observations of the gang's violence, and his review of several police reports relating to the gang's criminal patterns.
Plummer opined that Arnold was an active Du Roc Crips gang member. He based his opinion on intelligence gathered throughout the investigation and his conversations with Arnold, where he admitted being a gang member. He also based his opinion on Arnold's visible tattoos, which referenced the Du Roc Crips. Pictures of Arnold's tattoos were shown to the jury and admitted into evidence.
Plummer opined that three other individuals, Sidney Treadway, Antonio Davis, and Jonathan Smith, were active members of the Du Roc Crips gang. For Treadway, Plummer based his opinion on reviewing criminal reports from other law enforcement agencies and speaking to criminal investigators with knowledge of activities leading to Treadway's arrest for a "criminal fence," i.e., dealing in stolen goods. Plummer testified he was familiar with Davis based on reviewing criminal complaints, i.e., reports against him and his illegal activity, and speaking to an investigator. He testified he was familiar with Smith by reviewing police reports related to his criminal activity. He was also familiar with Smith because he called Arnold while he was incarcerated "to discuss gang politics" and to discuss "kill[ing] another individual who was outside in the public."
Plummer said he was aware that Treadway, Davis, and Smith had committed various offenses. He testified that Treadway violated Health and Safety Code section 11378.5, possession of PCP for sale, in April 2013. He was aware of that violation based on reviewing documents for Treadway's arrest and speaking to an investigator about that case. Plummer testified that Davis committed attempted kidnapping, in violation of Penal Code sections 207 and 664, in April 2012. And he testified that Smith violated Penal Code section 12021, subdivision (a)(1), possession of a firearm by a felon, in July 2011. He was aware of Smith's conviction by speaking to the police officer involved in the case and by reviewing police reports. The prosecution introduced certified records of conviction for the offenses committed by Treadway, Davis, and Smith later in the trial.
In his testimony, Plummer erroneously identified the offense as a violation of "Penal Code Section 11378.5."
Plummer testified about his involvement in the investigation into Arnold's criminal activities, which eventually led to Winn's arrest and prosecution. As relevant here, Plummer described a surveillance operation directed at a Du Roc Crips gathering. The operation was launched based on information that Arnold "was possibly going there with a firearm and that he was possibly going to shoot another member of the Du Roc Crips."
Based on his training and his involvement in the investigation into the Du Roc Crips, Plummer opined that the distribution of PCP in this case was for the benefit of, at the direction of, and in association with a criminal street gang. Among other things, Plummer testified that the "direction" element was satisfied based on Arnold's involvement in narcotics sales and "ordering hits to kill other individuals who he suspected killed [sic] him, or other individuals for individuals who were incarcerated[.]" Plummer said Arnold "made deals to kill people when that person got out" of prison. Plummer testified that Winn's purchase of PCP from Arnold benefitted the Du Roc Crips because Arnold was able to use the proceeds of his narcotics sales operation to, among other things, purchase firearms "based on the fact that he had an ongoing issue with an individual who he was trying to murder."
B. Legal Standards Governing Admission of Expert Testimony
Winn argues that various aspects of Plummer's testimony were inadmissible hearsay. The basic rules governing the admissibility of expert testimony are provided by statute. An expert, like Plummer, may testify in the form of an opinion that is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" and "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code, § 801.) In addition to the opinion itself, "[a] witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion." (Id., § 802.)
"Accordingly, in support of his opinion, an expert is entitled to explain to the jury the 'matter' upon which he relied, even if that matter would ordinarily be inadmissible. When that matter is hearsay, there is a question as to how much substantive detail may be given by the expert and how the jury may consider the evidence in evaluating the expert's opinion." (Sanchez, supra, 63 Cal.4th at p. 679.) While prior caselaw granted experts wide latitude to relate such hearsay to the jury, on the theory that the hearsay was not offered for its truth, Sanchez rejected this reasoning. (Ibid.) It held, "When 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. In such a case, 'the validity of [the expert's] opinion ultimately turn[s] on the truth' [citation] of the hearsay statement. If the hearsay that the expert relies on and treats as true is not true, an important basis for the opinion is lacking." (Id. at pp. 682-683.)
Sanchez's rejection of the prior rule required reevaluation of the scope of an expert's testimony about the matters on which he relied in forming his opinions. "Once we recognize that the jury must consider expert basis testimony for its truth in order to evaluate the expert's opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth. If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." (Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted.)
Sanchez explained that this new limitation applies only when an expert relates "case-specific facts about which the expert has no independent knowledge." (Sanchez, supra, 63 Cal.4th at p. 676.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Ibid.)
By contrast, an expert may still relate his general knowledge about his field to the jury, even if such knowledge is technically hearsay. "In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc. . . . An expert's testimony as to information generally accepted in the expert's area, or supported by his own experience, may usually be admitted to provide specialized context the jury will need to resolve an issue." (Sanchez, supra, 63 Cal.4th at p. 675.) "Knowledge in a specialized area is what differentiates the expert from a lay witness, and makes his testimony uniquely valuable to the jury in explaining matters 'beyond the common experience of an ordinary juror.' [Citations.] As such, an expert's testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds." (Id. at p. 676.)
Sanchez provides an apt example of the distinction between case-specific information and general knowledge: "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.)
Importantly, although experts may not relate case-specific hearsay to the jury, "[a]ny expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Sanchez, supra, 63 Cal.4th at p. 685.) "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." (Id. at p. 686.) Of course, the matter relied upon must be "of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates." (Evid. Code, § 801, subd. (b).)
Drawing on this analysis, our Supreme Court adopted 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." (Sanchez, supra, 63 Cal.4th at p. 686.) And, as hearsay, their admission against a criminal defendant may implicate the Confrontation Clause if the statements are testimonial. "If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, at p. 686.)
C. There Was No Sanchez Error in Admitting Portions of the Expert's Testimony
At the outset, we can dispose of certain arguments advanced by Winn because they are directly foreclosed by Sanchez. Winn claims that Plummer could not offer certain opinions, including the gang membership of Arnold, Treadway, Davis, and Smith, because they were based on hearsay. But, as explained above, an expert may rely on hearsay in forming his opinions. (Sanchez, supra, 63 Cal.4th at p. 685.) The hearsay rule is only implicated when the expert relates case-specific out-of-court statements to the jury. (Ibid.) Winn also challenges certain testimony that related case-specific statements that were independently proven by competent evidence, including the facts of Treadway, Davis, and Smith's prior convictions. Because these statements were independently proven by competent evidence (i.e., their conviction records), Plummer could properly discuss them. (Id. at p. 686.)
Winn appears to claim that Plummer's testimony that Arnold, Treadway, Davis, and Smith were gang members was improper case-specific hearsay. But the gang membership that Plummer testified about in this case was an opinion, based on evidence such as tattoos, associations, and self-identification. (See Sanchez, supra, 63 Cal.4th at p. 677; People v. Ochoa (2017) 7 Cal.App.5th 575, 589 (Ochoa); People v. Duran (2002) 97 Cal.App.4th 1448, 1463-1464; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) While testimony that an individual is a gang member may be based on hearsay, as noted above, it is not itself hearsay because it does not convey an out-of-court statement. (See Evid. Code, § 1200, subd. (a).) Instead, it is a statement of the witness's own conclusion.
Of course, the specific content of the expert's testimony matters a great deal. Testimony that an individual "is a gang member" is different from testimony that an individual "admitted he was a gang member." The former testimony is likely a statement of opinion, whereas the latter testimony relates case-specific hearsay. This line is not always clear. Sometimes a gang expert may testify to case-specific facts without referencing specific out-of-court statements. But where those case-specific facts are based on out-of-court statements, and the expert asserts those facts are true, he generally is reciting hearsay. (Sanchez, supra, 63 Cal.4th at p. 685.)
Winn also argues that Plummer related case-specific hearsay when he told the jury that the Du Roc Crips gang's primary activities "could go from murder, attempted murder, robbery, prostitution, solicitation to commit murder, [and] narcotic sales, ranging from the sales of PCP, . . . sales of crack cocaine and cocaine base, sales of methamphetamine," and "firearm possession." We disagree. Such testimony is not case- specific. Instead, it is general background information about the history and activities of the Du Roc Crips. (See Meraz, supra, 6 Cal.App.5th at p. 1175, review granted [holding that expert testimony about a gang's "operations, primary activities, and pattern of criminal activities" was admissible background testimony].) Similarly, Plummer's generic testimony about the sources of his information (e.g., police reports, conversations with investigators and gang members, criminal complaints, and arrest documents) was sufficiently general and categorical to fall within the expert's traditional latitude to tell the jury in general terms about hearsay sources on which he relied. (Sanchez, supra, 63 Cal.4th at p. 685.)
D. Any Error That Occurred Was Harmless
Winn challenges a number of other specific statements, which the Attorney General concedes are inadmissible case-specific hearsay: (1) Arnold's statement that he was a Du Roc Crips gang member; (2) Smith's call to Arnold while he was incarcerated "to discuss gang politics" and to discuss "kill[ing] another individual who was outside in the public"; (3) information that Arnold "was possibly going [to a gang gathering] with a firearm and that he was possibly going to shoot another member of the Du Roc Crips"; (4) information that Arnold "order[ed] hits to kill other individuals who he suspected killed [sic] him, or other individuals for individuals who were incarcerated" and "made deals to kill people when that person got out" of prison; and (5) information that Arnold "had an ongoing issue with an individual who he was trying to murder." We agree that Plummer's testimony on these points was case-specific hearsay, and it was error under Sanchez to admit this testimony. (See Sanchez, supra, 63 Cal.4th at p. 676 ["Case- specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried."]; Ochoa, supra, 7 Cal.App.5th at p. 589 [admissions of gang membership are case-specific hearsay].)
In order to assess whether this error was prejudicial, we must first determine the appropriate standard for prejudice. The standard depends on whether the erroneously-admitted hearsay was testimonial in nature under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny. The erroneous admission of testimonial hearsay is an error of federal constitutional dimension. (Sanchez, supra, 63 Cal.4th at p. 698.) Such an error requires reversal unless the Attorney General shows that the error was harmless beyond a reasonable doubt. (People v. Capistrano (2014) 59 Cal.4th 830, 873; see Chapman v. California (1967) 386 U.S. 18, 24.) The erroneous admission of nontestimonial hearsay is an error of state law only. (Sanchez, at p. 698.) Such an error is harmless unless it is reasonably probable that Winn would have obtained a more favorable result at trial absent the error. (Watson, supra, 46 Cal.2d at p. 836.)
"Although the court in Crawford 'did not offer an exhaustive definition of "testimonial" statements,' the court has since clarified that 'a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial' [citation]—that is to say, unless the statements are given in the course of an interrogation or other conversation whose ' "primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution." ' [Citations.] Under this test, '[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.' [Citation.] The court . . . , however, 'decline[d] to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment.' [Citation.] A court also considers the formality ' "of the situation and the interrogation" ' in determining the primary purpose of a challenged statement. [Citation.] 'In the end, the question is whether, in light of all the circumstances, viewed objectively, the "primary purpose" of the conversation was to "creat[e] an out-of-court substitute for trial testimony." ' " (People v. Rangel (2016) 62 Cal.4th 1192, 1214-1215 (Rangel); accord, Sanchez, supra, 63 Cal.4th at p. 689.)
As noted above, Winn did not object to the testimony we now conclude was erroneously admitted. The record is therefore somewhat sparse regarding the nature and origin of the case-specific hearsay statements Plummer related to the jury. Because error must be affirmatively shown, we cannot conclude on direct appeal that certain hearsay statements were testimonial without a basis in the record for such a determination. (Ochoa, supra, 7 Cal.App.5th at p. 585 ["[A]s no such contemporaneous objections were lodged, we cannot simply assume the [erroneously-admitted statements] were testimonial hearsay."]; accord, People v. Vega-Robles (2017) 9 Cal.App.5th 382, 414.) With these principles in mind, we will examine the hearsay statements at issue here.
Plummer testified that Arnold's admission that he was a Du Roc Crips gang member came during his conversations with Arnold. The circumstances of these conversations are unclear. It is possible Arnold's statements to Plummer were nontestimonial, if they were made "in the course of informal interactions, and not gathered for the primary purpose of use in a later criminal prosecution." (People v. Iraheta (2017) 14 Cal.App.5th 1228, 1249.) But, if the statements were made "in the course of an ongoing investigation, they were testimonial." (Id. at p. 1251.) Given the context of this case, we find it more likely that Arnold's statements to Plummer were in the course of an ongoing investigation. We need not definitely resolve the issue, however, because even if the statements were testimonial, any error in admitting them was harmless beyond a reasonable doubt. Arnold's statements were merely duplicative of other powerful evidence of his gang membership, including the photographs of his gang tattoos and his own statements to CC invoking their common gang membership.
Smith's call to Arnold while he was incarcerated "to discuss gang politics" and to discuss "kill[ing] another individual who was outside in the public" was not testimonial on the current record. It was a conversation between friends, with no degree of formality or solemnity, the primary purpose of which was not to preserve evidence for criminal prosecution. (See Rangel, supra, 62 Cal.4th at p. 1217 ["[T]he statements . . . were not made to law enforcement officers, nor were they otherwise made under circumstances suggesting a primary purpose of creating evidence for defendant's prosecution."]; accord, Crawford, supra, 541 U.S. at p. 51 ["An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."].)
Similarly, the current record does not support the determination that the hearsay statements about Arnold's efforts to kill other individuals, whether for himself or for others, were testimonial. Although Plummer testified in detail about these efforts (e.g., that Arnold "was possibly going [to a gang gathering] with a firearm and that he was possibly going to shoot another member of the Du Roc Crips"; that Arnold "order[ed] hits to kill other individuals who he suspected killed [sic] him, or other individuals for individuals who were incarcerated" and "made deals to kill people when that person got out" of prison; and that Arnold "had an ongoing issue with an individual who he was trying to murder"), the record does not reflect the nature of the underlying hearsay that Plummer was relating to the jury. It is possible that Plummer was relating the contents of police reports or other testimonial sources. But it is also possible—even likely—that Plummer was relating the contents of conversations between Arnold and other gang members or other nontestimonial sources. Therefore, on this record, we cannot conclude that Plummer's testimony about Arnold's efforts to kill other individuals related testimonial hearsay to the jury.
Winn claims "the record is sufficiently clear that Plummer obtained the information about the suspected murder plot . . . from other officers, who, in turn had obtained the information during an investigation of gang criminal activity." He provides no citation to the record to support this claim. Our review of the record does not reveal any such clarity.
We therefore apply the Watson standard of prejudice to the erroneous admission of Plummer's testimony about Smith's call to Arnold and Arnold's efforts to kill other individuals. After a detailed review of the record, we conclude it is not reasonably probable that Winn would have received a more favorable result at trial if this testimony had not been admitted. Excluding the testimony would not have affected the evidence supporting the elements of the offense or the gang enhancement, as shown by our discussion of this evidence above. At most, it provided some additional support for Plummer's opinion that Arnold's PCP sales benefitted the Du Roc Crips gang. Given the strong evidence supporting the "association" element of the gang enhancement discussed above, however, the exclusion of this testimony on the alternative "benefit" element would not have led the jury to a different finding.
Winn argues that the testimony about Arnold's efforts to kill other individuals was inflammatory and would have led the jury to convict Winn based on its disapproval of Arnold's activities. We disagree. The fact that the Du Roc Crips committed murders was already before the jury based on other, properly-admitted testimony about the gang's primary activities. Moreover, this specific evidence was limited. It concerned Arnold's efforts, not Winn's, and there was nothing connecting Winn to those efforts. There was no evidence that Winn was a member of the Du Roc Crips gang, for example, and no evidence that Winn was aware of Arnold's murderous intentions. The trial court cautioned the jury in its instructions not to let bias, sympathy, or prejudice influence its decision, including bias for or against witnesses and the defendant. The prosecutor, in her closing arguments, did not reference Arnold's efforts to kill at all. Given the minor role this testimony played at trial, there is no reasonable probability the jury was improperly swayed. Under these circumstances, Winn has not shown he was prejudiced.
Winn relies on People v. Albarran (2007) 149 Cal.App.4th 214 and People v. Perez (1981) 114 Cal.App.3d 470, but those cases are distinguishable. In both cases, the defendants were members of the gang that was the subject of the erroneously-admitted gang testimony. (Albarran, at pp. 220, 227; Perez, at p. 476) And the testimony played a much more prominent role at trial, including in closing arguments in Albarran. (Albarran, at p. 222; Perez, at pp. 475-476.) --------
V
Prior Serious Felony Sentencing Enhancements
Winn contends the court erred by imposing two five-year sentencing enhancements under section 667, subdivision (a) for his two prior serious felony convictions. The statute provides, in relevant part, that "any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately." (§ 667, subd. (a)(1).) Winn's conviction for criminal conspiracy is not itself a serious felony conviction, but the jury's gang enhancement finding under section 186.22, subdivision (b) would normally mean that Winn's conviction is a serious felony conviction under section 1192.7, subdivision (c)(28). (People v. Briceno (2004) 34 Cal.4th 451, 462 (Briceno) ["By referring to section 186.22 generally, section 1192.7(c)(28) demonstrates the voters' intent also to encompass subdivision (b) of section 186.22, which defines gang-enhanced felonies."]; accord, People v. Torres (2011) 198 Cal.App.4th 1131, 1150, fn. 13.)
Winn argues that Briceno prohibits the trial court from using the jury's gang enhancement finding to characterize his current conviction as a serious felony in this proceeding under section 667, subdivision (a). As noted, Briceno considered the general question of whether a felony conviction with a gang enhancement was a serious felony under section 1192.7, subdivision (c)(28). (Briceno, supra, 34 Cal.4th at p. 456.) The Supreme Court concluded that it was. (Id. at p. 464.) As part of its analysis, the Supreme Court discussed the sentencing decisions faced by a trial court when a defendant is convicted of a felony with a gang enhancement. (Ibid.) It explained, "The Court of Appeal was apparently concerned that if section 1192.7(c)(28) made all gang-related felonies serious felonies, a defendant convicted of a gang-related felony would never be punished under section 186.22(b)(1)(A), the sentence enhancement that applies where the defendant is convicted of a felony that is gang related, but would always be subject to the sentence enhancement for a serious felony that is gang related under section 186.22(b)(1)(B), rendering section 186.22(b)(1)(A) surplusage." (Ibid.) The Supreme Court explained that the sentence enhancements under section 186.22, subdivision (b), which expressly distinguish between the underlying felony conviction and the gang enhancement, do not incorporate the broad definition of "serious felony" in section 1192.7, subdivision (c)(28). It stated, "Thus, section 186.22(b)(1)(A), (B), and (C) speaks to an event that occurs in the current proceeding. Section 1192.7, subdivision (c), on the other hand, comes into play only if the defendant reoffends, at which time any prior felony that is gang related is deemed a serious felony. Thus, any felony that is gang related is not treated as a serious felony in the current proceeding, giving effect to section 186.22(b)(1)(A)." (Briceno, at p. 465.) The Supreme Court went on to note that its interpretation "avoids the impermissible bootstrapping that would occur if any felony that is gang related is also deemed serious in the current proceeding. Specifically, while it is proper to define any felony committed for the benefit of a criminal street gang as a serious felony under section 1192.7(c)(28), it is improper to use the same gang-related conduct again to obtain an additional five-year sentence under section 186.22(b)(1)(B)." (Ibid.)
Winn claims that Briceno should be interpreted as categorically prohibiting treating a current conviction for a gang-related felony as a serious felony in the current proceeding, thus preventing the trial court from imposing the five-year sentencing enhancement under section 667, subdivision (a), which requires a current serious felony conviction. Similar claims have been addressed and rejected in at least two published opinions. (People v. Martinez (2005) 132 Cal.App.4th 531, 535; People v. Bautista (2005) 125 Cal.App.4th 646, 656-657 (Bautista).) Bautista and Martinez were cited with approval by our Supreme Court in People v. Jones (2009) 47 Cal.4th 566, 573. We likewise agree with Bautista and Martinez and reject Winn's argument for similar reasons.
Bautista recognized that the Supreme Court's language in Briceno was somewhat ambiguous. (Bautista, supra, 125 Cal.App.4th at p. 656.) It found persuasive, however, the Attorney General's suggestion that Briceno was primarily directed to ensuring that a sentencing court did not use the gang enhancement for two separate purposes, e.g., to impose a serious felony gang enhancement under section 186.22, subdivision (b)(1)(B) and a serious felony enhancement under section 667, subdivision (a). (Bautista, at p. 656.) It reaffirmed the holding of Briceno that, in general, a jury's gang enhancement finding means that the felony at issue was a serious felony for other purposes. (Id. at p. 657.)
In addition to Bautista's rationale, we note that the discussion at issue in Briceno is centered solely on the interpretation of section 186.22, subdivision (b). (Briceno, supra, 34 Cal.4th at pp. 464-465.) As noted, because that subdivision makes a distinction between gang-related felony convictions and gang-related serious felony convictions in the current proceeding, it made no sense in that context to define all gang-related felony convictions as serious felony convictions. The Supreme Court did not state, much less imply, that this interpretation should extend to statutes like section 667, subdivision (a), which do not make such a distinction. The trial court therefore did not err by finding that Winn's current gang-related felony conviction was a serious felony conviction for purposes of section 667, subdivision (a) and by imposing two five-year sentence enhancements for Winn's two prior serious felonies.
VI
"Court Operation Security Fee"
At sentencing, the trial court imposed a "court operation security fee" of $70. It appears the court was relying on the probation report, which recommended imposition of "a total CSC fee of $70.00 consisting of a $40.00 Court Security Fee pursuant to Penal Code section 1465.8 and a $30.00 Criminal Conviction Fee pursuant to Government Code section 70373 for the Court Facilities Assessment." The court's abstract of judgment does not reflect imposition of any of these fees.
In his opening brief, Winn argued that the $70 fee should be reduced to $40 (to reflect only the court security fee or court operations assessment) and the abstract of judgment amended accordingly. On reply, Winn argues that the matter should be remanded so that the trial court can determine whether and how to amend the abstract of judgment.
Both of these fees are mandatory, and they may be added for the first time on appeal. (People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2.) We therefore need not return the matter to the trial court to determine whether or how to impose these fees. We will modify the judgment to reflect the imposition of these fees and direct the trial court to amend the abstract of judgment to reflect the modification.
DISPOSITION
The judgment is modified to clarify that the $70 fee imposed by the trial court reflects two separate fees: a $40 assessment under Penal Code section 1465.8 and a $30 assessment under Government Code section 70373. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
GUERRERO, J. WE CONCUR: NARES, Acting P. J. IRION, J.