Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA085778., George Genesta, Judge.
Lawrence R. Young & Associates and Lawrence R. Young for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Mario Gonzalez (Gonzalez) was convicted of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), and first degree burglary (§ 459). The jury found true that Gonzalez committed the offenses for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C) and that he had personally used a firearm within the meaning of sections 12022.53, subdivision (b) and 12022.5, subdivisions (a)-(d). The trial court sentenced appellant to state prison for a term of life plus two 10-year enhancements. On appeal, Gonzalez contends that: (1) there was insufficient evidence to support the verdict; (2) the gang enhancement evidence was based on hearsay and should have been stricken under the Sixth Amendment of the United States Constitution and the principles established in Crawford v. Washington (2004) 541 U.S. 36 (Crawford); and (3) the sentence was unduly harsh under the state and federal Constitutions.
All further statutory references are to the Penal Code unless otherwise indicated.
We find no error and affirm.
FACTS
Gonzalez was arrested and charged with multiple crimes based on allegations that, inter alia, he attempted to shoot Paul Apodaca (Paul). The case proceeded to trial.
The evidence established that Gonzalez was a member of a criminal street gang named Bassett or Bassett Grande. We refer to this criminal street gang as “Bassett.”
Testimony regarding the postcrime interviews
Los Angeles County Deputy Sheriff Damian Marquez testified that he interviewed Paul. According to Paul, while working in his garage he was approached by Gonzalez and an argument ensued. They each said they felt disrespected by the other and Gonzalez pulled a gun, pointed it at Paul and pulled the trigger. Instead of a shot, Paul heard a clicking sound. Upon seeing Gonzalez pull the hammer back to try shooting again, Paul wrestled with Gonzalez and gained control of the gun. Paul threw the gun in some bushes in the front of his house and ran inside.
Deputy Marquez interviewed Paul’s fiancée, Athena Simpson (Simpson). She was inside Paul’s house and heard a commotion. She looked outside and saw Gonzalez and a man known as Hops run to a black, four-door Chevrolet Blazer, jump in and drive away. Paul’s nephew, Michael Apodaca (Michael) also spoke to Deputy Marquez. So did Michael’s girlfriend, Jessica Inostros (Inostros). Both Michael and Inostros said that they were inside the house when they heard a commotion. They looked outside and saw Paul and Gonzalez struggling over a gun, then they saw Gonzalez and Hops run to a dark SUV, jump in and drive away. Later, Deputy Marquez drove Simpson in a patrol car to a nearby residence where a SUV was parked. She identified it as the Blazer involved in the incident.
Deputy Marquez testified that the witnesses referred to the second man as “Hoops.” But Los Angeles Deputy Sheriff Gerald Groenow testified that he personally knows the second man, and that the second man’s name is Adam Tecero (Tecero) and his nickname is “Hops.” We refer to Tecero’s nickname as Hops.
Deputy Groenow showed a photographic line-up to Paul, Simpson, Michael and Inostros a little more than an hour after the incident. Paul said he recognized the assailant from around the neighborhood and high school. His name was Gonzalez, also known as Crime. He tried to shoot Paul, Paul wrestled for possession of the gun and ran outside the garage. Gonzalez jumped on his back, Paul fell to the ground and then someone pulled Gonzalez off of Paul. Gonzalez looked for the gun in the bushes until two men called and he ran to the SUV. When asked why Gonzalez thought he was being disrespected, Paul said it might be because Paul stares or looks at “them” when they walk by. Paul identified and circled Gonzalez in the photographic line-up. So did Simpson, Michael and Inostros. Michael said he was positive about his identification, that he knew Gonzalez from high school. Simpson said that she recognized Gonzalez and Tecero and that Tecero had “B.G.” tattooed on the back of his head. Inostros said she recognized Gonzalez as Crime.
Evidence suggesting that Paul, Simpson, Michael and Inostros were afraid of retaliation if they testified
According to Deputy Groenow, he perceived Simpson, Michael and Inostros to be frightened when they were interviewed. When Michael and Simpson were served with subpoenas, they expressed their reluctance to testify because they “had received some phone calls telling them not to go to court. They were scared.” Deputy Groenow further testified that Paul declined to report problems during the pendency of the case because he was afraid of retaliation.
Deputy Groenow asked if Michael and Simpson could identify the people they received calls from. They did not want any more reports written because they thought it would compound the problem. Michael said he did not want to go to court on any more cases. Simpson was scared and said she wanted to leave the Apodaco home and take Paul with her. Michael, Simpson and Inostros said that they did not want to testify because they were afraid Bassett “was going to come by and shoot them up.” Simpson left a message on Deputy Groenow’s phone saying that people had come by to take pictures of the Apodaca home. Deputy Groenow personally witnessed Gonzalez’s girlfriend and another woman who might be his cousin taking pictures.
At the preliminary hearing, Simpson told Deputy Groenow that she did not want to testify because she was afraid “they” would shoot her up. Paul said something similar when he appeared for trial. When she appeared for trial, Simpson told Deputy Groenow she did not want to be present and that she was afraid. Inostros was also afraid. Michael told Deputy Groenow that he did not want to testify.
Leslie Finklea (Finklea), the prosecution’s witness coordinator, testified that Michael said he was scared to testify “because of the fact that he really didn’t know about this guy.” Inostros testified that she feared for “everybody’s” safety because Paul and Simpson had been receiving telephone calls telling them not to testify. Paul was asked if he complained to the detective that he did not want to testify. He stated: “My family feels threatened. I don’t feel threatened. I don’t feel that. My family feels that.” He was referring to his mother, father and Michael.
Los Angeles County Deputy Sheriff Mark Macias testified that on the day of trial, Simpson “said she was afraid they were going to kill her.”
The recanting testimony of Paul, Simpson, Michael and Inostros
When Paul took the witness stand, he confirmed the facts of the alleged crimes but testified that he could not identify his attacker because he could not see the attacker’s face. The person was wearing a hooded sweater and there was only one light bulb in the garage. According to Paul, he could only recall that the person was “dark.” Later in his testimony, Paul described the attacker as “the defendant—the person that pointed the gun at me, ” but then Paul explained that when he said “defendant, ” he did not mean Gonzalez. Rather, according to Paul, he simply meant the assailant. Paul said “I might have made a misjudgment on the person. [¶]... [¶] Because I didn’t see him too well. [¶]... [¶] That’s why I’m a little confused now, myself.” Next, Paul was asked about a photographic six-pack he was asked to review after he was attacked. The picture of Gonzalez was circled. Paul stated, “I circled that photo, but I think I was mistaken because I don’t know the person personally. My nephew went to school and knows them all—”
At the preliminary hearing, Paul identified Gonzalez as the assailant. While testifying at trial, Paul admitted making the identification but stated: “But I think I was confused that day about the whole thing.” He claimed that he “thought automatically when [he] walked in the courtroom [he] had to [identify the defendant].” Paul was confronted with a written statement in which he stated that Gonzalez pointed a gun at him. In response, Paul explained: “That’s the name of the person, but after we discussed it, me and my family, they don’t even know who it was. So at the time we blamed [Gonzalez], but now we’re not blaming [Gonzalez] no more. Because after me and my family discussed it, we know it was not them.”
In her version of the incident, Simpson testified that she was in Paul’s house and heard Inostros yell, “There’s a gun. Get down.” Simpson ran toward the front of the house and saw Paul in the planter just outside the front door. Somebody was on top of him. Michael was outside, too, and he pulled the assailant off. Simpson only saw the back of the assailant’s head. She never got a look at his face and could not identify him. Simpson recalled being shown a photographic line-up, and she recalled circling Gonzalez’s photo. However, she testified that she circled his photo only because Michael showed her a picture of Gonzalez in the Bassett High School yearbook and told her that he was the person who attacked Paul.
Michael testified that he saw Paul wrestling with the assailant in the planter outside the house and pulled the assailant off. The assailant “[k]ind of had a familiar face.” Before the police arrived, Michael looked through the Bassett High School yearbook to find the assailant but was unable to “pinpoint it to anybody in there.” Michael said he identified Gonzalez in a photographic line-up because he looked familiar from high school. Though Gonzalez’s photo was circled and Michael’s initials appeared underneath, Michael said he did not know how the circle got around the photo and the initials did not look like his handwriting. He admitted that he identified Gonzalez and wrote the following: “When I saw [Gonzalez] with the gun in his hand fighting with my uncle, they started wrestling in the bushes. The gun fell in the bushes.” Upon being asked what he intended by writing the statement, Michael testified that he was confused about whether the assailant was Gonzalez.
Inostros testified that she was at the house when the attack occurred and saw someone fighting with Paul, but she claimed that she did not recognize the attacker. She saw three men running away toward a vehicle but did not know who they were. As her testimony progressed, she admitted telling a detective that the assailant looked familiar and she thought it was Gonzalez. But subsequently, she said that she did not tell a detective that the assailant was Gonzalez, otherwise known as Crime. When asked about her identification of Gonzalez in the photographic line-up, she said she circled his photo but was not sure if he was the assailant. She also said that circling his photo was just a “coincidence” and she did it only because someone yelled out “Crime.”
The expert testimony of Deputy Groenow
To establish his qualification as an expert, Deputy Groenow testified about his training and experience. For the first five years as a deputy sheriff, he worked in jails and interviewed inmates, examined tattoos and identified gang members. Later, while on patrol, he investigated hundred of shootings, murders, assaults and acts of vandalism and spoke to gang members. For the last nine years, he worked in Operation Safe Streets, the Los Angeles County Sheriff Department’s gang unit. Currently, he was assigned to the Safe Streets Bureau at the Industry Station. While there, he spoke to gang members, their families, victims, informants and gang investigators and made hundreds of arrests. Bassett, which is primarily Hispanic, is on the western edge of Deputy Groenow’s territory as a gang investigator. He testified that he is familiar with Bassett and has been in contact with people who claim to be Bassett gang members. Approximately 200 members of Bassett have been documented. As a gang investigator, he drives through areas where Bassett is located. He sees symbols such as “B.G., ” “Bassett Grande, ” “B, ” “Bassett” and owls in graffiti and tattoos.
There were about six gang investigators at Industry Station. Deputy Groenow shared information with them as well as with other agencies that had to deal with the same gangs.
Deputy Groenow was familiar with Gonzalez and knew he was a Bassett gang member with the moniker Crime. During the two times Deputy Groenow spoke to Gonzalez, he admitted that he was a Bassett gang member, and Deputy Groenow saw that Gonzalez had an owl tattooed on his arm, which represents Bassett because they call themselves “nightowls.” Deputy Groenow consulted the booking slip and determined that Gonzalez has a “B” tattooed on his ankle. It stands for Bassett. During their first conversation, Gonzalez was with about 10 Bassett gang members. He said he knew them. The 10 people Gonzalez was with all admitted that they were Bassett gang members. During their second conversation, Gonzalez was with three admitted Bassett gang members.
Based on personal interaction with Gonzalez and information shared by gang investigators, Deputy Groenow opined that Gonzalez is a Bassett gang member. In addition, Deputy Groenow testified that he spoke with Tecero in the past, he identified himself as a member of the Bassett gang, and he has several tattoos, including “Bassett” on his chest and “B.G.” on the back of his head for Bassett Grande.
According to Deputy Groenow, the Bassett gang operates in the vicinity of the Apodaca home and, based on his experience, its primary activities are murder, attempted murder, assault, robbery, vandalism, sale of narcotics, and auto theft. Deputy Groenow produced four abstracts of judgment and testified that they established that Bassett gang members had been convicted of committing these types of crimes. (1) In the first case, Carlos Quezada (Quezada) was convicted of murder, attempted murder and shooting at an occupied motor vehicle. (2) The second case involved Richard Leonard Jaramillo (Jaramillo). He was convicted on two counts of attempted murder. (3) In the third case, Jorge Rodriguez (Rodriguez) was convicted of two counts of robbery. (4) Finally, Michael Anthony Guzman (Guzman) was convicted for being a felon in possession of a handgun. Deputy Groenow testified that each of these men is a Bassett gang member and has a moniker. Also, Deputy Groenow testified that he knew of Jaramillo and that he had handled the cases against Rodriguez and Guzman.
The abstracts of judgment were admitted into evidence.
The prosecutor gave Deputy Groenow a hypothetical based on facts similar to the case and asked if the crimes were committed for the benefit of a criminal street gang. He opined that the assailant was acting for the benefit of and in association with a criminal street gang. Deputy Groenow’s opinion was based on the presence of other gang members at the scene and the fact that gangs work on fear and intimidation. The more fear and intimidation they can cause, the easier it is for the gang to function and the stronger its reputation will be. Deputy Groenow noted that if someone disrespects Bassett, the gang members have to respond or the gang will lose respect.
Deputy Groenow testified that it is common for witnesses in gang cases to recant or deny previous photo identifications out of fear.
The verdict; the sentence
The jury convicted Gonzalez and found that he committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and personally used a firearm during each of the charged offenses (§§ 12022.53, subd. (b) and 12022.5, subds. (a)-(d)). On count 1 for attempted murder, Gonzalez was sentenced to life with the possibility of parole and received a 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C) and an additional 10-year enhancement pursuant to section 12022.53, subdivision (b). Sentence was imposed and then stayed as to count 2 for assault with a firearm and count 3 for first degree burglary. As to counts 2 and 3, the section 12022.5, subdivisions (a)-(d) enhancements were stricken.
This timely appeal followed.
DISCUSSION
I. Standard of review
Challenges to the sufficiency of evidence are reviewed under the substantial evidence standard (People v. Bolin (1998) 18 Cal.4th 297, 331) and evidentiary rulings will not be disturbed unless the trial court abused its discretion (People v. Page (1991) 2 Cal.App.4th 161, 187). A constitutional issue such as an Eighth Amendment challenge is reviewed de novo. (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433.)
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin, supra, 18 Cal.4th at p. 331; People v. Johnson (1980) 26 Cal.3d 557, 576 (Johnson) [to determine whether a jury permissibly found a defendant guilty beyond a reasonable doubt, an appellate court must view the evidence in a light most favorable to the verdict and “‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence’”].) “‘“Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends....”’” (People v. Smith (2005) 37 Cal.4th 733, 739.) Thus, we resolve all conflicts in the evidence and questions of credibility in favor of the verdict. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal based on insufficient evidence is unwarranted unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331.)
If the trial court erred, we must review the record to determine whether error was harmless or prejudicial. Error under the federal Constitution must be reversed unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury’s verdict. (Chapman v. California (1967) 386 U.S. 18, 24.) But if no federal constitutional right is implicated, error will be reversed only if it is reasonably probable that the appealing party would have obtained a more favorable result if the trial court had applied the law correctly. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II. The convictions were supported by sufficient evidence
Gonzalez argues that the out-of-court identifications were insufficient to support the judgment. Our review of the record, however, discloses that the evidence adduced by the prosecution was sufficient to support the convictions. Under the current state of the law, out-of-court identifications need not be corroborated by other evidence. Rather, the “substantial evidence test set forth in [Johnson] should be used to determine whether an out-of-court identification is sufficient to support a criminal conviction.” (People v. Cuevas (1995) 12 Cal.4th 252, 271–274 (Cuevas).)
In postincident interviews, Paul identified Gonzalez as the person who attempted to shoot him and said that they wrestled over the gun. Simpson, Michael and Inostros all corroborated that Paul wrestled with Gonzalez, and Michael said he was positive the assailant was Gonzalez. All four witnesses circled Gonzalez’s photo in a photographic line-up. The witnesses were interviewed separately, they expressed no doubt about Gonzalez’s identity, and their statements were consistent.
Prior to trial, the witnesses expressed reluctance to testify. Michael and Inostros received threatening calls telling them not to testify, and Paul declined to report problems during the pendency of the case because he feared retaliation. Even though Paul said he did not feel threatened, he said that his family did. In addition, Detective Groenow testified that in gang cases it is common for witnesses to recant their previous statements and photo identifications out of fear of retaliation. Finklea testified that Michael was afraid to testify, and Deputy Macias testified that on the day of trial he heard Simpson say she thought “they” were going to kill her.
Given the evidence, the identification of Gonzalez was solid and credible because none of the witnesses expressed any doubt during their postincident statements and identifications and because Gonzalez was known to them. Based on fear of retaliation, the witnesses had motive to recant at trial, and the testimony of the witnesses at trial with respect to identification was inconsistent and equivocal. In our view, the jury permissibly credited the postincident interviews and identifications and rejected the recanting testimony when finding Gonzalez guilty beyond a reasonable doubt.
According to Gonzalez, his conviction must be reversed because there was no physical evidence tying him to the crime, and because there was no independent evidence he was at the scene. For example, he points out that there was no DNA or fingerprint evidence demonstrating that he was in the SUV that was used as a getaway car. But Cuevas establishes that out-of-court identifications need not be corroborated.
III. The gang enhancement was supported by admissible and substantial evidence.
Gonzalez argues that the gang enhancement evidence was inadmissible and should have been stricken based on the Sixth Amendment and Crawford. We disagree. Those objections were not raised below and are forfeited. (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1220.) Regardless, we reach the merits and find Gonzalez’s argument unavailing. In the alternative, Gonzalez contends that the gang enhancement was not supported by substantial evidence. Once again, his argument fails.
A. The statutory scheme; the role of experts.
The law provides that “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, shall, upon conviction of that felony, ” shall receive an additional punishment. (§ 186.22, subd. (b)(1).)
A criminal street gang “means 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 paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of 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).) A “‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the [enumerated] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).) Unlawful homicide, robbery, shooting at an occupied motor vehicle and being a felon in possession of a firearm are enumerated crimes. (§ 186.22, subds. (e)(2), (3), (5) & (31).)
A gang expert may offer testimony that a gang (1) is an ongoing organization, association, or group of three or more persons, (2) that shares a common name or common identifying symbol, and (3) that has as one of its primary activities the commission of one or more of the criminal acts enumerated in section 186.22, subdivision (e). (People v. Gardeley (1996) 14 Cal.4th 605, 620 (Gardeley).) Expert testimony may be founded on material that is not admitted into evidence and on evidence that is ordinarily inadmissible, such as hearsay, as long as the material is reliable and of a type reasonably relied upon by experts in the particular field in forming opinions. [Citation.] Thus, a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies. [Citations.] Likewise, an individual’s membership in a criminal street gang is a proper subject for expert testimony.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1463–1464; People v. Valdez (1997) 58 Cal.App.4th 494, 506 (Valdez).) Expert testimony is admissible even if it encompasses the ultimate issue in the case. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.)
Gonzalez argues that an expert “is required to base his opinions from his own knowledge of the facts of the predicate crimes and not base them on records. He must base his opinions on testimonial hearsay or statements made during police interrogation.” Gonzalez did not provide a case citation, and his statement is contrary to the law.
B. The Sixth Amendment and law interpreting it.
The Sixth Amendment provides that, “‘[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’” (Crawford, supra, 541 U.S. at p. 42.) In Crawford, the Supreme Court held that “out-of-court statements that are testimonial in nature are inadmissible unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant.” (People v. Thomas (2005) 130 Cal.App.4th 1202, 1208 (Thomas).) But the only limit on the admissibility of nontestimonial hearsay is the law of the forum state. (Id. at p. 1209.)
A statement is testimonial if “it was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue.” (People v. Taulton (2005) 129 Cal.App.4th 1218, 1224 (Taulton).) For example prior testimony at a preliminary hearing and police interrogations are testimonial. In contrast, business records are nontestimonial. So, too, are records or copies of records of any state penitentiary, reformatory, county jail, city jail or federal penitentiary. (Id. at pp.1224–1225.)
C. Existence of a criminal street gang.
1. Organization.
The first issue in determining whether there was a criminal street gang is whether Bassett is an organization with three or more members. Deputy Groenow did not offer an opinion on this matter. Nonetheless, his testimony established that Gonzalez and 13 other people admitted to being Bassett gang members and that about 200 Bassett gang members had been documented by the Los Angeles County Sheriff’s Department. Deputy Groenow offered nontestimonial hearsay that was permitted by the Sixth Amendment.
By his attack on the totality of the gang enhancement evidence, Gonzalez impliedly argues that Deputy Groenow relied on testimonial hearsay. The admissions by Gonzalez and the 13 other Bassett members, however, were obtained during field interviews. The field interviews were not obtained for use in a criminal trial or determining whether to file a criminal charge. We easily conclude that Crawford is not implicated.
2. Primary activities.
Deputy Groenow opined that the primary activities of the Bassett gang included murder, attempted murder and robbery. These crimes are enumerated in section 186.22, subdivision (e) and the People therefore satisfied their burden of proof with respect to this element. Because Deputy Groenow offered an opinion permitted by Gardeley and was subject to cross-examination, Gonzalez was not denied his right to confront a witness. Nonetheless, Gonzalez complains that Deputy Groenow’s opinion was based on testimonial hearsay and therefore his opinion should have been precluded under Crawford. We disagree. The foundation for Deputy Groenow’s opinion was not “‘independent proof’ of any fact” (Gardeley, supra, 14 Cal.4th at p. 619) and is not objectionable as though it were such proof. In addition, the record discloses that in forming his opinion, Deputy Groenow relied upon his personal knowledge of investigations and nontestimonial hearsay from colleagues.
We note that Deputy Groenow’s opinion was bolstered by the four abstracts of judgment involving, among other things, murder, attempted murder and robbery. They were nontestimonial in nature because they were not prepared for a criminal trial or determining whether to file criminal charges. Rather, they merely documented the results of criminal proceedings and are analogous to business records. Moreover, the abstracts of judgment were admissible under Evidence Code section 1280, the hearsay exception for official documents. (People v. Delgado (2008) 43 Cal.4th 1059, 1070 [an abstract of judgment falls within Evidence Code section 1280 because it is a contemporaneous, statutorily sanctioned, officially prepared clerical record cloaked with the presumption of regularity and reliability].)
Evidence Code section 1280 provides: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”
3. Pattern of criminal gang activity.
To prove a pattern of criminal gang activity, the prosecution offered abstracts of judgment establishing that Quezada, Jarmillo, Rodriguez and Guzman had been convicted of murder, robbery, shooting at an occupied vehicle and being a felon in possession of a firearm. As we have already indicated, the abstracts of judgment were admissible, nontestimonial hearsay. Deputy Groenow opined that these men are Bassett gang members, which was permissible under Valdez. Also, he testified that he knew of Jarmillo, and that he personally handled the cases against Rodriguez and Guzman. The evidence presented below therefore established that Bassett gang members committed at least two enumerated offenses under section 186.22, subdivision (e). Moreover, Gonzalez’s attempted murder of Paul constitutes at least one of the predicate acts. (Gardeley, supra, 14 Cal.4th at p. 624 [“The prosecution proved the second requisite predicate offense through evidence in this case”].)
Gonzalez does not suggest that the timing of the offenses related to these convictions is material.
In his briefs, Gonzalez suggests that the predicate crimes by Quezada, Jarmillo, Rodriguez and Guzman had to be committed for the benefit of a criminal street gang. That argument was rejected by Gardeley, supra, 14 Cal.4th at page 621 and we need not consider it anew.
Gonzalez complains that in forming an opinion as to whether the predicate crimes were committed for the benefit of Bassett, Deputy Groenow relied on gossip and innuendo. The point is moot under Gardeley. In any event, we note that there is no evidence that he based any of his opinions on anything other than trustworthy information.
D. The underlying purpose of Gonzalez’s crimes.
The final issue under section 186.22, subdivision (b)(1) is whether Gonzalez committed the charged crimes 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).) Deputy Groenow was given a hypothetical similar to the facts in the case against Gonzalez and opined that crimes were committed for the benefit of a criminal street gang. Because Deputy Groenow was in court and subject to cross-examination, the Sixth Amendment and the principles of Crawford were not violated in any respect.
E. Sufficiency of the evidence.
Gonzalez argues: “There simply is no substantial evidence that in committing the crimes, [he] was united in action or joined in interest, purpose or objective with Bassett but for the testimony of” Deputy Groenow. Tacitly, Gonzalez suggests that Deputy Groenow’s expert opinion does not qualify as substantial evidence. The problem for Gonzalez is that the opinion was admissible and plausible and we have no authority to reject the opinion and usurp the trier of fact’s role.
IV. The sentence.
Gonzalez waived his constitutional challenges to the sentence by failing to object below. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) Regardless, his objections lack merit, as we discuss.
A. The law.
The Eighth Amendment prohibits excessive punishment. To pass scrutiny, punishment must not involve the unnecessary and wanton infliction of pain, and it must not be grossly out of proportion to the severity of the crime. (Gregg v. Georgia (1976) 428 U.S. 153, 173.) The California Constitution prohibits punishment that “is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) The judiciary should not interfere with a statutory penalty “unless [the] statute prescribes a penalty ‘out of all proportion to the offense.’” (Id. at p. 424.)
Under our state Constitution, we “consider the nature both of the offense and of the offender. [Citation.] The nature of the offense is viewed both in the abstract and in the totality of circumstances surrounding its actual commission; the nature of the offender focuses on the particular person before the court, the inquiry being whether the punishment is grossly disproportionate to the defendant’s individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind. [Citations.]” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
B. The sentence was not unduly harsh.
Gonzalez argues that his sentence was disproportional to the crime because no one was injured, and because the sentence shocks the conscience and offends fundamental notions of human dignity. Our analysis, however, leads us to conclude the sentence was lawful.
Gonzalez was not sentenced to death, so the sentence does not involve the infliction of pain proscribed by the Eighth Amendment. And “the length of [the] sentence of imprisonment is largely a matter of legislative prerogative, and cannot violate the Eighth Amendment in any but the rarest cases.” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1193.) Moreover, Gonzalez’s sentence is not inconsistent with Harmelin v. Michigan (1991) 501 U.S. 957 (Harmelin), a case in which the United States Supreme Court upheld a sentence of life in prison without the possibility of parole after the defendant was convicted of possessing more than 672 grams of cocaine. (Id. at p. 996.) In Harmelin, no one was injured but a criminal enterprise was involved. Here, a criminal enterprise—a criminal gang engaged in a pattern of criminal gang activity—was involved and, in addition, there was a victim of Gonzalez’s assault. We conclude that this is not one of those rare cases where the length of the sentence is subject to nullification by the courts under the federal Constitution.
Turning to our analysis under the state Constitution, there is no hiding from the fact that Gonzalez committed the attempted murder, assault with a firearm and burglary to benefit Bassett, a violent criminal street gang. He was an admitted Bassett gang member, and the primary activities of the Bassett gang include murder and attempted murder. If the gun had been properly loaded when he pulled the trigger, Paul would have been killed. The sentence is not grossly disproportionate to Gonzalez’s individual culpability as a member of a violent criminal street gang. In other words, it does not shock the conscience or offend fundamental notions of human dignity to imprison Gonzalez to life plus 20 years given the crimes and his nature.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.