Opinion
2d Crim. No. B254016
01-04-2017
THE PEOPLE, Plaintiff and Respondent, v. JOE L. CEREZO, Defendant and Appellant.
John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Scott A. Taryle, Supervising Deputy Attorneys General, Timothy M. Weiner, Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2010032139)
(Ventura County) OPINION FOLLOWING ORDER VACATING PRIOR OPINION
The California Supreme Court granted review and transferred this case with directions to vacate our decision and reconsider the cause in light of its decision in People v. Sanchez (2016) 63 Cal.4th 665. (Cal. Rules of Court, rule 8.528(d).) In our prior opinion (People v. Cerezo (Mar. 18, 2015, B254016) [nonpub. opn.]), we affirmed Joe L. Cerezo's conviction by jury of vehicle theft for the benefit of a street gang and street terrorism. (Veh. Code, § 10851; Pen. Code, § 186.22, subds. (a) & (b)(1).) We concluded Cerezo's Sixth Amendment right to confrontation was not violated when a gang expert relied on out-of-court interviews and information gathered by other law enforcement officers to testify about the circumstances of predicate crimes. (Pen. Code, § 186.22, subds. (a) & (b); Crawford v. Washington (2004) 541 U.S. 36; People v. Gardeley (1996) 14 Cal.4th 605, 619, overruled on other grounds in People v. Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) In Sanchez, the court disapproved Gardeley, and held 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." (Sanchez, at p. 686.) We review the record in light of Sanchez and affirm.
Upon conviction, the trial court suspended imposition of Cerezo's sentence and placed him on formal probation with terms and conditions including a jail term. --------
FACTUAL AND PROCEDURAL BACKGROUND
Cerezo is a member of the Ventura chapter of the Hells Angels motorcycle club, a criminal street gang. William Hoffman was a "prospect," or probationary member, of the Ventura chapter. In August 2010, Hoffman decided to leave the Hells Angels. If a Hells Angels' member or prospect leaves the gang, he is expected to appear at the chapter's clubhouse to subject himself to a beating and to other conditions of departure.
Hoffman told a Hells Angels' member he intended to leave the gang. On August 20, Hoffman was expected at the clubhouse but did not appear. He did not respond to telephone calls and text messages that night from Hells Angels' members.
At 3:00 the next morning, Cerezo and gang members Aaron McIntosh and William Holder knocked on the door of the house where Hoffman was staying. They asked Hoffman to return to the clubhouse with them. Hoffman refused. They demanded Hoffman's motorcycle and vest. Hoffman refused to surrender the motorcycle, and they took it.
Hoffman testified about criminal activities he saw or participated in as a prospect. If a member felt threatened or disrespected, they would call prospects to "back that member up" by beating the person. Hoffman assaulted someone for the Hells Angels when a member instructed him to do so. He saw others do so at least five times in less than a year. He heard members brag about beatings and drug sales they committed for the gang. He saw them take the motorcycles of every member who left. He once saw members "beat . . . up" a person they "kicked out" of the gang, and then "hog-tie[]" him while a tattoo artist blacked-out his Hells Angels' tattoos. Hoffman saw McIntosh stab a man outside the Hells Angels' clubhouse in Fresno. Hoffman witnessed George Christie engage in extortion for the Hells Angels, and he testified against Christie in a federal case. Another member, James Ivans, was prosecuted for extortion. Hoffman knew this because Ivans told him.
The People's gang expert, Deputy Sheriff Steven Jenkins, was also the lead investigator in the case. He opined that the Hells Angels motorcycle club is a criminal street gang and its primary activities include "drug trafficking," "extortion," "buying and selling guns, possession of weapons, battery and assaults, stolen vehicles . . . selling stolen motorcycle parts . . . up to murder."
Jenkins testified that taking a motorcycle from a prospect who leaves the gang benefits the gang because it prevents an appearance of weakness, induces fear and intimidation, and deters others from thinking they can leave the gang on their own terms.
Before trial, Cerezo moved in limine to preclude Jenkins from testifying about predicate offenses to which he was not a witness. Cerezo objected "to any testimony by anyone other than a witness with personal knowledge." The trial court denied the motion.
Jenkins described six predicate criminal offenses by Hells Angels' members. The trial court admitted certified records of conviction for each. The defense did not object to the records. Jenkins testified that the defendants in each of these cases were members of the Hells Angels. Jenkins briefly described the facts of some of the crimes. He said he was familiar with these crimes either from being involved in the case, talking to investigators, or reading police reports. He did not convey out-of-court statements.
In addition to the six crimes for which the trial court admitted records of conviction, Jenkins described four bad acts by Hells Angels' members: McIntosh earned his "filthy few" Hells Angels' patch by stabbing a man in Fresno; Thomas Heath planted an improvised explosive device in a rival's motorcycle in the 1970's, killing two people, and was later convicted; and on two occasions members were caught in possession of "ball-peen" hammers.
Jenkins testified that his professional training and experience made him aware of Hells Angels' activities. His experience included personally investigating 15 Hells Angels' crimes; executing search warrants at the Ventura chapter's clubhouse and members' homes, where he found weapons and "instrumentalities of crime"; interviewing members of gangs to determine safe placement in the jail; and "close to six" formal interviews and debriefings with current and former members of the Ventura chapter, which included debriefing interviews of McIntosh and Hoffman. In three or four of these formal interviews, Jenkins was the "lead person asking questions." Jenkins said these were "long interview[s]" that take "five to six hours."
Jenkins did not specifically convey the substance of the formal interviews. He answered "Yes" when asked if the interviews helped him to form his opinion that the Hells Angels gang relies on fear and intimidation. He said that McIntosh lied during his interview.
DISCUSSION
Cerezo contends Deputy Jenkins's testimony about predicate crimes and bad acts violated the hearsay rule and Cerezo's Sixth Amendment right to confrontation because it was based on Jenkins's interviews of current and former Hells Angels' members, his conversations with other officers, and document review. We reject his contention because Jenkins relied on hearsay to convey background information in his field of expertise and any case-specific facts he related were independently proven by competent evidence.
A gang expert may rely on hearsay to convey general background information in his or her field of expertise, but 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. (People v. Sanchez, supra, 63 Cal.4th 665, 686.) Sanchez "disapprove[d] . . . prior decisions concluding that an expert's basis testimony is not offered for its truth, or that a limiting instruction, coupled with a trial court's evaluation of the potential prejudicial impact of the evidence under Evidence Code section 352, sufficiently addresses hearsay and confrontation concerns." (Id. at p. 686, fn. 13.)
Jenkins opined that the Ventura chapter of the Hells Angels is a criminal street gang. The criminal street gang component of a gang enhancement requires proof of (1) an ongoing association of three or more people with a common name, sign, or symbol; (2) one of whose "primary activities" is commission of one or more enumerated offenses; and (3) a pattern of criminal gang activity consisting of two or more enumerated offenses by its members within a specified time frame. (§ 186.22, subd. (f); People v. Gardeley, supra, 14 Cal.4th 605, 621.) Jenkins relied in part on hearsay to support his opinion, but each of these components was independently proven by competent evidence.
Jenkins testified about the signs and symbols of the gang based primarily on his personal observations interacting with members. His testimony about ball-peen hammers as a gang symbol relied in part on hearsay, but it is the type of general background information specifically approved in Sanchez. (People v. Sanchez, supra, 63 Cal.4th 665, 677 ["That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify"].) Jenkins related hearsay about two members possessing ball-peen hammers. But Hoffman's testimony independently proved that prospects and members use ball-peen hammers as weapons and as gang symbols.
Jenkins opined that a primary activity of the gang is committing enumerated offenses and that members engage in a pattern of criminal activity. These offenses were independently proven by records of conviction and Hoffman's testimony. The People introduced records of conviction showing Hells Angels' member Heath was convicted of felony grand theft offenses, and other members were convicted of possessing a controlled substance with a firearm, possessing a deadly weapon, possessing a firearm, being a felon in possession of a firearm, assault by means likely to result in great bodily injury and vehicle theft.
Jenkins related hearsay about gang member McIntosh stabbing a man in Fresno, but the fact and circumstances of that stabbing were independently proven by Hoffman's testimony. Hoffman said he witnessed the crime and he helped McIntosh escape and dispose of the knife afterward. And Hoffman's testimony about the violent crimes he observed or participated in was further independent competent proof of the gang's criminal activities.
Jenkins testified about Heath blowing up a motorcycle and killing two people, an incident for which there was no independent competent proof. But even assuming his information came from a testimonial source like a police interrogation, introduction of that remote incident was harmless beyond a reasonable doubt (Sanchez, supra, 63 Cal.4th 665, 698), because the admissible and competent evidence that the Ventura chapter of the Hells Angels is a criminal street gang was overwhelming.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
PERREN, J.
Charles W. Campbell, Jr., Judge
Superior Court County of Ventura
John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Scott A. Taryle, Supervising Deputy Attorneys General, Timothy M. Weiner, Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.