Opinion
E067898
08-24-2018
THE PEOPLE, Plaintiff and Respondent, v. TYRONE ANTHONY PARKS III, Defendant and Appellant.
Jeffrey S. Kross, 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, and Michael Pulos and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR015010) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed as modified. Jeffrey S. Kross, 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, and Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
After driving up to a pharmacy that had just closed for the day, defendant and appellant, Tyrone Anthony Parks III, jumped over a rail and tugged at the front door. Following a jury trial, defendant, along with two associates, was convicted of conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1)) of a pharmacy, committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)); possession of a loaded firearm (§ 25850, subd. (a)); and active participation in a criminal street gang (§ 186.22, subd. (a)). Defendant was sentenced to eight years in prison and appealed.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant claims the court erred in admitting testimonial hearsay to prove the gang enhancement and active participation in a gang count, in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and Crawford v. Washington (2004) 541 U.S. 36 (Crawford). He also requests a modification of the abstract of judgment, which the People do not oppose. We affirm as modified.
I.
BACKGROUND
A. Facts of the Crime and Prosecution
On April 2, 2016, the Prescription Station in Victorville closed for the day at 1:00 p.m. Several members of the High Desert Gang Enforcement Team happened to be posted at various locations around the pharmacy, within viewing range, on "traffic" enforcement duty, in unmarked cars. A detective at that location checked the front door and returned to his vehicle. The members of the gang enforcement team then observed a silver Chevrolet Impala pull into the parking lot, at which time defendant exited the passenger side of the vehicle, jumped the guardrail and ran towards the pharmacy door, as the rear passenger looked around. Defendant tugged at the door and then headed back toward the vehicle in which he had arrived, again jumping over the guardrail. Defendant was wearing a yellow hat.
The Impala turned around, but after defendant entered the vehicle, he exited the car again, jumped the guardrail again, and cupped his hands to look into the glass door of the pharmacy. Defendant then returned to the car again and the Impala exited the parking lot. As the vehicle passed another member of the gang enforcement team, that officer observed that the driver and passenger were frantically moving about inside the vehicle. From his higher vantage point in an SUV behind the Impala, the officer was able to see the driver reaching for the console as the passenger was observed reaching through his lap area under the seat. Because the driver was not using his seatbelt, the officer effected a traffic stop. Defendant was the front passenger, while his codefendant, Edward Haynes, was the driver. Gabriel Gonzales was the backseat passenger.
Gabriel Gonzales was not tried with defendant, Haynes, and Joel Arnold.
A search of the vehicle revealed athletic gloves on the center console, and a black case under the passenger seat, containing a Taurus handgun, loaded with .45-caliber rounds. In the trunk of the vehicle was a backpack containing another firearm, loaded with .38-caliber rounds, and other gloves. The backpack also contained a black case with more rounds for both .380 and .45 firearms. The three vehicle occupants were arrested. During a search of defendant incident to his arrest, a pair of gloves found in his rear pants pocket, along with two cell phones, were found and seized, while two more cell phones were seized from Haynes. In May 2016, Detective Kunzman arrested Arnold, who had two cell phones in his possession.
The data from the cell phones was downloaded and turned over to the gang detectives. The cell phone attributed to defendant had text messages from a contact listed as "Down Big," whose phone number corresponded to a cell phone belonging to Arnold. Other text messages were found on both defendant's and Haynes's cell phones.
When interviewed, defendant eventually admitted that he was a member of the Pomona Ghost Town Crips (GTC), but he denied participating in any conspiracy to commit robbery; instead, he explained he had just received a prescription for treatment of a sexually transmitted disease (STD), and that he went to the pharmacy to have it filled.
Following his arrest, defendant was charged by way of an amended information with conspiracy to commit robbery (§§ 182, subd. (a)(1), 211, count 1), with an allegation that the crime was committed for the benefit of or at the direction of a criminal street gang (§ 186.22, subd. (b)(1)(B)). He was also charged with carrying a loaded and stolen firearm, with an allegation that the offense was committed for the benefit of or at the direction of a criminal street gang (§§ 25850, subds. (a), (c)(2), 186.22, subd. (b)(1)(B), count 2), carrying a loaded firearm by an active participant of a street gang (§ 25850, subds. (a), (c)(3), count 3), and active participation in a criminal street gang (§ 186.22, subd. (a), count 4).
Prior to the close of evidence, the People dismissed count 2. Defendant was convicted of the three remaining charges and enhancements, was sentenced to an aggregate term of eight years in prison, and timely appealed. B. Gang Evidence
Officer Dossey, from the City of Pomona, and Detective Kunzman provided expert opinions as to the GTC gang, qualifying predicate crimes, defendant's gang membership, and the significance of certain terminology in the text messages.
There is testimony that Arnold had "GT" tattooed on him, and that his moniker was "Low Down," but there was no testimony describing the tattoos observed on defendant, or about the clothing they wore. Detective Munoz was questioned about photographs posted on defendant's Facebook page, but there is minimal verbal description in the record to enlighten us as to what was depicted. But because defendant and Arnold admitted gang membership, we do not have to reach the issue of the legal sufficiency of the evidence of gang membership.
1. GTC
GTC is a criminal street gang claiming turf in the City of Pomona, comprising 40 active members and 80 documented members. All Pomona-based gangs wear a "P," which stands for Pomona, and as a branch of the Crips, they wear blue, the color associated with the Crips. In terms of gang-specific clothing, GTC members wear articles of clothing with Casper the ghost, and have gang tattoos of "GT" for Ghost Town. For a nonmember to wear the gang colors or a tattoo would expose him to consequences, possibly even death. GTC members use a common sign which is a lower-case "g" formed with the fingers. Their primary purpose is the commission of criminal activity, including murders, attempted murders, robberies, possessing firearms, selling controlled substances, and aggravated assaults.
To GTC members, the letter "C" and the number "3" are significant because "C," which stands for Crips, is the third letter of the alphabet. Gang members frequently refer to each other as "3," although the Neighborhood Crips west of Interstate 110 in Los Angeles refer to themselves by the number "2," and refer to themselves as Deuces.
2. Predicate Crimes
Officer Dossey was personally familiar with Calvin Robinson, Jr., an admitted member of GTC, who was convicted of carrying a loaded firearm in a public place in 2015. Detective Kunzman was personally familiar with Jamonte Luis (or Lewis), who had admitted to Detective Kunzman that he was with a GTC member who had been adjudicated a delinquent based on a petition alleging burglary in 2014.
Lewis is spelled "Luis" in the reporter's transcript, but both defendant and the People have indicated that the spelling is a mistake, citing exhibit 42, a printout of California Law Enforcement Telecommunications System (CLETS) information. Both parties have also referred to other exhibits (photographs, Facebook pages) that are not described by the witnesses on the record. This required us to request transfer of the relevant exhibits ourselves. The record in this case is difficult enough to follow with multiple witnesses playing musical chairs on the witness stand and is made even more difficult when key facts require reference to information not found in the transcripts. Parties are urged at the earliest stages of an appeal to transfer to us any exhibit mentioned in briefs at the time the briefs are filed.
3. Defendant's Membership
During Detective Quintard's interview with defendant, defendant admitted he was a member of GTC and that his monikers were El Papio, Third, or T-3rd. Arnold also admitted being a member of GTC and his moniker was Low Down. During the trial, the People played a tape of defendant's second interview with police in which defendant makes the admission in oblique, gang terms: "Alright I'll cut the bullshit with you right now, sorry you see, cause you know what I'm saying, I'm from there, you feel me, I'm from there." Being "from there" means a person belongs to that gang.
During the interview, defendant was confronted with his Facebook page, which had references to "Straight Outta Ghosttown," as well as pictures of defendant throwing gang signs and Gonzales pointing a firearm. One post on the Facebook page attributed to El Papio showed a sign stating "Straight Outta Ghosttown," under the letters "Gz [glyph appearing to be a stylized yellow M, or a sideways 3] xv3n cuh #LongLiveLilToon." There was also a photograph of defendant with Arnold and Gonzales, along with other Crips, at a cemetery, in front of the grave of a deceased GTC member, Little Toon.
In exhibit 37, five out of the six individuals wore blue baseball caps with various insignia. Five of the six flashed three fingers, while one individual also gave the upside "g" sign for GTC. One individual stood passively, wearing a T-shirt bearing the cartoon image of a ghost, along with the words, "LowDown!" Arnold was identified as the individual wearing the ghost T-shirt, while defendant was identified on the bottom right of the picture, flashing three fingers. Exhibit 10 is a partial picture of two individuals, but they were not identified.
Detective Kunzman's opinion was that defendant was a member of GTC because of his tattoos, his admissions to Detective Quintard, and his prior police contacts in the company of Gonzales, a self-admitted member of GTC.
4. Text Messages
On March 30, 2016, "Down Big" sent a message to defendant asking, "Yall got blowers?" Blowers refer to firearms. Later that day, Down Big sent another message stating, "At least one." A responding message sent from defendant's phone inquired, "Who this?" On March 31, 2016, Down Big replied, "Low Down," the moniker used by Arnold. The next message from defendant's phone stated, "What's the deal 3 mybad." The next message, also from defendant's phone, indicated "Can't talk now. What's up?" Down Big responded, "Yall gucci 3?" To which defendant responded, "We good 3." Next, Down Big texted, "Got yo ride." Defendant responded, "Call me real quick 3."
The data from the cell phones was downloaded using Universal Time Coordinate, or Greenwich Mean Time.
"Gucci" means good. "3" or "T-3rd" are references to defendant's moniker, "Third."
The next communication from Down Big stated only "Norf." This was interpreted to mean "North," referring to the north side of Pomona in GTC lingo, where the "th" is commonly replaced with an "f" because of the Piru, a sect of their rivals, the Bloods. Shortly thereafter is the name "Baby Ball New," with a phone number. Then defendant's phone texted back, "correct." Down Big responds with, "Call him now."
This made sense to somebody.
On April 2, 2016, a text message was sent from defendant's phone to someone identified in his contacts as "Snook," saying, "A 3 it's a go for 3omorrow he said we gonna hit it around 11 or 12." A short time later, another message from defendant's phone stated they were "going all the way up," that they would have fun, and "Get this money in the a.m." A separate text message from defendant's device said, "And its a surprise party China dnt even know cuh Aha but we going all the way up being who ever let's have fun adn [sic] get this money in the a.m." The last text message sent at 11:09 p.m. from defendant's phone was sent to Haynes, stating "Hell yeah I'm with Blast," referring to Gonzalez's moniker.
At 9:41 on April 2, 2016, defendant's phone sent a text to Arnold's phone indicating that there was "no 3rd guy just us and one burner." "We looking like a MF," "Tho and ima call cuh . . . now." "Cuh" is a general term of endearment used by Crips. One other text message in the series, not attributed to any defendant, said, "U want me to pic u up so you can turn up with me??"
In Detective Kunzman's opinion, the incident occurring on April 2, 2016, was in association with the criminal street gang GTC based on the involvement of two documented, self-admitted members of the gang who were inside the vehicle. When he vaulted over the railing, defendant was wearing a yellow hat, later identified as a Pittsburgh Pirates hat, meaning he was proud to be from Pomona. C. Stipulations
The parties stipulated that Dr. Ho, a medical doctor, treated defendant on April 2, 2016, that exhibits 31 through 34, including a prescription for treatment of an STD, are correct copies of defendant's medical records, although Dr. Ho did not refer defendant to any particular pharmacy.
It was further stipulated that if Detective Quintard were recalled, he would testify that during his interview of defendant, the latter stated that he went to the pharmacy on April 2, 2016, to obtain antibiotics for his STD. There was a third stipulation about the fact that the Chevrolet Impala in which defendant, Haynes, and Gonzales had driven to the pharmacy had been rented on April 2, 2016, to a third party in Barstow.
II.
DISCUSSION
A. Admission of the Expert Evidence of the Predicate Gang Offenses Did Not Violate Sanchez or Crawford
Defendant argues that the admission of the evidence relating to the predicate crimes element of the gang enhancement (§ 186.22, subd. (b)), as well as the count pertaining to active participation in a criminal street gang (§ 186.22, subd. (a)), violated his Sixth Amendment right to confrontation, according to the holdings of Crawford, supra, 541 U.S. 36 and Sanchez, supra, 63 Cal.4th 665. Specifically, defendant argues that evidence that Robinson, Jr., and Lewis admitted gang membership, proffered to show the gang-related nature of the predicate crimes, constituted case-specific testimonial hearsay offered to prove that their convictions were gang related, in order to establish the predicate crimes element. We disagree.
1. Evidence of the Predicate Crimes
As part of the proof of the gang enhancement to the conspiracy count, as well as the active participation count, the prosecutor initially attempted to prove the element of "pattern of criminal gang activity" by introducing Officer Dossey's testimony that GTC member James Moore had committed one of the predicate offenses. However, Officer Dossey's information about Moore's prior case and his membership in GTC was based on information from other officers involved in Moore's case, to which all defendants interposed a hearsay objection on Crawford and Sanchez grounds. The court ruled that the People had to present predicate crimes evidence from witnesses having personal knowledge of the facts. It excluded Officer Dossey's testimony about Moore on Sanchez grounds, upon sustaining the defense objection to the officer's opinion that Moore was a member of GTC.
The People therefore introduced certified rap sheets as evidence of the convictions of Robinson, Jr., who had admitted being a member of GTC to both Officer Dossey and Detective Quintard, on different occasions. Robinson, Jr. had been convicted of carrying a loaded firearm in public in 2015. The prosecutor re-called Detective Kunzman, who was familiar with Calvin Robinson, Sr., and believed him to be a member of GTC, having been convicted in 2013 of a predicate offense; Detective Kunzman was also personally familiar with Calvin Robinson, Jr., who had a 2015 conviction for violating section 25850, subdivision (a), and believed Robinson, Jr. to be a gang member. Robinson, Jr., had admitted his membership in GTC to Officer Dossey during a pedestrian check in GTC territory, and indicated his moniker was "Baby Black Ass" or "Baby Casper." Robinson, Jr., also admitted being a member of GTC to Detective Quintard on an occasion when the detective contacted him at Robinson's residence.
The convictions were not described in the testimony; we have had to transfer the exhibits to determine the nature of the prior convictions. The conviction in question did not involve a gang allegation. Additionally, there is no evidence that Robinson, Sr. had actually admitted being a member of GTC to anyone. Thus, we disregard information about Robinson, Sr.
The court overruled defense hearsay objections because the statements fell within an exception to the hearsay rule for statements against interest. Detective Kunzman also testified that Jamonte Lewis had personally admitted membership in GTC to him. Lewis had been adjudicated a delinquent in 2014 for a burglary.
2. Analysis and Discussion
The Sixth Amendment provides that an accused has the right to be confronted with the witnesses against him. (U.S. Const., 6th Amend.; Sanchez, supra, 63 Cal.4th at p. 679.) In the seminal case of Crawford, supra, 541 U.S. 36, the high court held that the Sixth Amendment generally bars admission at trial of a testimonial out-of-court statement offered for its truth against a criminal defendant, unless the maker of the statement is unavailable to testify and the defendant had a prior opportunity for cross-examination. (Crawford, supra, at p. 68; Davis v. Washington (2006) 547 U.S. 813, 821; see also, Sanchez, supra, at p. 680.)
In Crawford, the United States Supreme Court held that the admission of testimonial hearsay violates the confrontation clause unless the declarant is unavailable for trial and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at pp. 53-54, 59; Sanchez, supra, 63 Cal.4th at p. 670.) Under prior case law involving expert testimony, hearsay issues were avoided by treating statements related by experts as nonhearsay, because they only go to the basis of the expert's opinion and should not be considered for their truth. (Sanchez, supra, at pp. 680-681.) However, when any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay and are being admitted for their truth. (Id. at p. 686; People v. Blessett (2018) 22 Cal.App.5th 903, 925.)
In the context of gang expert evidence, some testimony may be based on the expert's own knowledge and investigation, and thus be admissible as personal knowledge, some may be generally accepted background information admissible under the latitude afforded experts, but some might relate case-specific hearsay and thus be inadmissible. (Sanchez, supra, 63 Cal.4th at p. 683.) But where the expert testifies to case-specific out-of-court statements to explain the bases for his or her opinion, the statements, being offered for their truth, are hearsay, which, like any other hearsay evidence, must fall within an applicable hearsay exception. (Id. at p. 684.)
Experts have traditionally been precluded from relating 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.) An expert is not permitted to supply case-specific facts about which he has no personal knowledge. (Ibid.)
In the present case, we agree that the evidence of Robinson, Jr.'s and Lewis's admissions of gang membership would constitute hearsay; however, the questions are whether they constitute testimonial hearsay, whether they fall within an exception to the hearsay rule, whether the witnesses were unavailable, and whether they qualify as case-specific facts. The trial court found the statements admitting gang membership fell within the exception to the hearsay rule for statements against their interests. Defendant argues that in the trial court, the People failed to prove the witnesses were unavailable, but this particular objection was not articulated in the trial court, so ordinarily we would not need to address that issue. (Evid. Code, § 353; People v. Williams (2008) 43 Cal.4th 584, 620.) In any event, as we will demonstrate, because the "pattern of criminal gang activity" falls within the class of background evidence on which an expert may rely in forming an opinion notwithstanding its hearsay nature, any objection would have been properly overruled.
Preliminarily, the certified CLETS records of the prior convictions were properly admitted as official records, pursuant to Evidence Code section 1280. (People v. Martinez (2000) 22 Cal.4th 106, 126.) As for the testimony of the gang experts regarding the gang members' admissions, we must determine whether the predicate crimes evidence constituted "case-specific facts." On this point, defendant argues that because the pattern of criminal street gang activity is an essential element of the crime for which defendant was on trial, that the information is case specific. We disagree.
Case-specific facts mean those facts relating to the "particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) Experts are permitted to rely on hearsay concerning background information, and may rely on nontestimonial hearsay properly admitted under a statutory hearsay exception. (Id. at p. 685.)
Background testimony about general gang behavior, the gang's history, its primary activities and its pattern of criminal activities are unrelated to the defendants or the current crimes. (See People v. Meraz (2016) 6 Cal.App.5th 1162, 1175, review granted Mar. 22, 2017, S239442, opn. ordered to remain precedential per Cal. Rules of Court, rule 8.1115(e)(3).) Thus, an expert may provide testimony about the pattern of criminal activities as background information about the gang, because it is unrelated to defendant or the current offense, even if it was based on hearsay sources like gang members or gang officers. (People v. Meraz, supra, at p. 1175.)
The statements were not case-specific facts relating to the particular events and participants alleged to have been involved in the case being tried. (Sanchez, supra, 63 Cal.4th at p. 676.) In our view, the predicate crimes evidence, offered to prove the pattern of criminal gang activity, was not case specific and not testimonial. Instead, it falls within the "general background information" acquired by the expert. While based on hearsay, the components of the pattern evidence fall within an exception to the hearsay rule. The gang experts could properly rely on the information in forming their opinions, and their opinions based on the information did not violate defendant's confrontation rights because the information did not constitute testimonial hearsay.
The admission of the predicate crimes evidence did not violate defendant's confrontation rights. B. Errors in the Abstract of Judgment
Defendant points out that the amended abstract of judgment mistakenly describes the charge in count 1 as a violation of section "186(A)(1)." The People do not oppose the modification.
The abstract of judgment constitutes the commitment and is the order sending defendant to prison, and the process and authority for carrying the judgment and sentence into effect; no other warrant or authority is necessary to justify or require its execution. (§ 1213; People v. Mitchell (2001) 26 Cal.4th 181, 185, citing In re Black (1967) 66 Cal.2d 881, 890.) It goes without saying that accuracy is essential in a document that prescribes the execution of sentence and is provided to criminal investigation and identification. (§ 1213, subd. (a).)
This court has the authority to correct clerical errors at any time. (People v. Mitchell, supra, 26 Cal.4th at pp. 186-187.) The clerk is directed to amend the abstract of judgment as follows: Reflect that the count of conviction in count 1 as a violation of section 182, subdivision (a)(1).
III.
DISPOSITION
The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. CODRINGTON
J.