Opinion
A144898
05-31-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH JOVONTE WALKER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51424209)
A jury convicted defendant Joseph Walker of unlawful possession of a firearm and found gang enhancement allegations under Penal Code section 186.22, subdivision (b)(1) to be true. The trial court struck the sentence for the gang enhancement but did not strike the enhancement. On appeal, Walker challenges the gang enhancement as unsupported by sufficient evidence. He argues the court erred by admitting improper hearsay in violation of the Sixth Amendment's confrontation clause and admitting prejudicial gang-related evidence. Based on the California Supreme Court's recent ruling in United States v. Sanchez (2016) 63 Cal.4th 665, much of the expert testimony derived from the expert's review of police reports or communications with other officers was improper hearsay. Because the remaining admissible evidence was inadequate to prove the scienter element of the gang enhancement beyond a reasonable doubt, we reverse.
Unless noted all further statutory references are to the Penal Code.
BACKGROUND
On September 26, 2014, Richmond Police Department Detectives Michael Ricchiuto and Matthew Anderson were on patrol in central Richmond. They saw Walker, who was born, raised, and lived in the neighborhood. He was wearing a hooded sweatshirt but no hat, and an unidentified woman was near him. The officers approached Walker, whom they knew was on formal probation, and searched him. Tucked in his waistband, they found a loaded, semi-automatic handgun. They confiscated the gun and arrested Walker.
Walker was charged with possession of a firearm by a felon (§ 29800, subd. (a)(1)), with a gang enhancement (§ 186.22, subd. (b)(1)). A jury convicted Walker of the firearm charge and found the gang enhancement true. He was sentenced to 16 months in state prison with credit for time served. The trial court struck the consecutive sentence for the gang enhancement. This appeal of the gang enhancement followed.
At trial, Detective Anderson testified as the prosecution's criminal street gang expert. Since 2011, his primary assignment with the Richmond Police Department's special investigations section gang unit was to investigate the Deep C criminal street gang, a gang with approximately 75 to 100 members that claims as its territory an area of Central Richmond known as the "Iron Triangle." Detective Anderson testified that Deep C members commonly wear Cincinnati Reds baseball hats and have adopted the baseball team's "C" emblem as one of its symbols, standing for "Central."
Detective Anderson also testified Deep C was primarily involved in selling drugs, robberies, illegally possessing guns, and assaults. The possession of loaded and concealed firearms was one of Deep C's primary activities and a crime "members of Deep C engaged in on an ongoing, regular basis." According to Detective Anderson, possessing a gun was important to Deep C's "culture and practices," and members traded and shared guns. Deep C members relied on guns as a "primary tool" for protection within their territory and to promote their "illegal behavior." Such behavior included robberies, terrorizing citizens to discourage cooperation with law enforcement, and using force or the threat of force to control drug sales in their territory. Detective Anderson further commented that Deep C members were expected to act and use their firearms if rival gang members came into Deep C territory. He also acknowledged that gun proliferation was a problem in Richmond and many non-gang members arm themselves out of fear.
Detective Anderson identified as Deep C's rival gangs, the Project Trojans on the north side of the Iron Triangle, the Maine Line Boys directly south of the Iron Triangle, and the Easter Hill Boys southeast of the Iron Triangle. Detective Anderson reported that since 2003, feuds between Deep C and its various rivals had resulted in gun violence with "hundreds of shootings and homicides attributed to this ongoing feud."
Over the course of his four years as part of the Richmond Police Department's gang unit, Detective Anderson estimated approximately 40 contacts with Walker, mostly in the Iron Triangle. On some of them, he spoke directly with Walker about Deep C gang activity, including shootings and other gun-related activities. Based on his review of police reports and his own work in the gang unit, Detective Anderson testified about nine specific instances in which he and other law enforcement officers had contact with Walker:
1. He first encountered Walker in May 2011 when he was personally involved in the arrest of several Deep C gang members for selling marijuana from a residence in the Iron Triangle. Walker had driven to the residence and appeared to purchase drugs outside the house. After he drove away, he was pulled over in his car and arrested. A firearm was found in the residence but not in Walker's car. Walker was convicted of a misdemeanor.
2. Later in 2011, Richmond police arrested Walker after a witness observed him discharging a firearm. Walker denied firing a gun. No firearm was found, and no charges were ever brought against Walker for this incident.
3. In February 2012, Walker was arrested in Deep C territory for possessing marijuana for sale. Detective Anderson added, "[I]ndividuals tend to not sell narcotics in Deep C territory unless they're affiliated or associated with the criminal street gang." When he was arrested, he did not have a firearm. No charges were filed against him.
4. Detective Anderson was personally involved in investigating a shooting that occurred in territory claimed by Deep C's rivals in July 2012. As part of this investigation, Detective Anderson reviewed hospital surveillance footage that depicted Walker bringing a Deep C gang member who had been shot into the hospital.
5. In September 2012, Richmond police again arrested Walker in Deep C territory for possessing marijuana for sale. Detective Anderson called this "indicative of somebody that is associating with Deep C as they're inside of Deep C territory and openly selling narcotics on the street." On this occasion, Walker did not have a firearm.
6. In February 2013, police officers arrested Walker after he failed to yield to law enforcement while driving a stolen car. A known Deep C gang member was in the car and fled. Walker was convicted of unlawfully driving or taking a vehicle.
7. In May 2013, Walker was arrested in Deep C territory for possessing narcotics for sale.
8. In September 2013, Detective Anderson was personally involved in another investigation in which Walker was shot. Detective Anderson described Walker as uncooperative in the investigation, leaving police unable to determine Walker's involvement in the shooting that was flagged by a "ShotSpotter" system in North Richmond gang territory.
9. Finally, in September 2014, Richmond police contacted Walker after he left a Deep C gang member at the hospital who had been shot and eventually died.
Detective Anderson was specifically asked about his role in investigating general criminal activities between Deep C and rival gangs when Walker was arrested in September 2014. That month, Detective Anderson was personally investigating shootings between Deep C and its rivals as part of his gang unit work. He reported a "rash of shootings" between Deep C and Maine Line and noted Maine Line gang members came into Deep C territory and shot up a Deep C hangout "several times in that month." He explained that he worked on investigating "these series of shootings firsthand, speaking with other officers, speaking with people within the neighborhood, as well as conducting surveillance of that particular area." In the month leading up to September 26, 2014—the day of Walker's arrest—Detective Anderson had personal knowledge of five or six shootings and investigations and heard of additional ones through talking to other officers.
Detective Anderson also testified about his review of nine photographs and accompanying comments taken from select posts on Walker's Facebook page from approximately 2010 through 2012. He interpreted comments on the social media posts, which referred to "straps" and "glocks," as gun references but had no knowledge whether the comments were taken from rap lyrics. Two photographs showed Walker holding up a "wolfpack" hand sign Detective Anderson said was associated with the Deep C gang. Detective Anderson also identified several others pictured in the photographs as known Deep C gang members.
Based on the information he presented, it was Detective Anderson's opinion that Walker was an active Deep C member at the time of his September 2014 arrest. In response to a hypothetical question posed by the prosecution, he gave the opinion that a Deep C affiliate in the Iron Triangle with a loaded gun in September 2014 carried the gun "for the benefit of the Deep C criminal street gang" and did so to "promote, further, and benefit the organization of Deep C."
Prior to and during trial, Walker asserted multiple objections to limit or exclude Detective Anderson's testimony on the basis of hearsay, under the rule of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and under Evidence Code section 352. The trial court overruled the objections based on Detective Anderson's expert qualification and noted that he could render an expert opinion even if based on hearsay. The trial court provided a limiting instruction for Detective Anderson's testimony based on police reports or information told to him by other officers and held that such testimony could only be considered to evaluate his expert opinion but not for the truth of the matter asserted.
Walker did not testify. The defense called no witnesses and presented no evidence.
DISCUSSION
A. General Principles
Walker challenges the sufficiency of the evidence supporting the jury's gang enhancement under section 186.22, subdivision (b)(1). That section 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, in addition and consecutive to the punishment prescribed for the felony . . . of which he . . . has been convicted, be punished as follows . . . ." (§ 186.22, subd. (b)(1).)
Before we address Walker's substantial evidence challenge, we will address Walker's specific evidentiary challenges to determine what evidence the jury could properly consider in reaching its decision.
B. Sixth Amendment Right to Confrontation
Walker claims the trial court violated his Sixth Amendment right to confrontation by allowing Detective Anderson to rely on testimonial hearsay gleaned from police reports and conversations with other officers Walker was unable to confront at trial.
The Sixth Amendment's confrontation clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., Amend. VI.) "The confrontation clause protects a criminal defendant's right to confront and cross-examine the witnesses against him." (People v. Hill (2011) 191 Cal.App.4th 1104, 1134.) We review de novo the application of the confrontation clause. (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 964.)
After Walker's appeal was fully briefed, the California Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which addressed the use of hearsay by expert witnesses and which both parties recognize is pertinent to this Sixth Amendment issue. At this court's request, the parties submitted supplemental briefing addressing Sanchez.
In Sanchez, police officers arrested the defendant, Marcos Sanchez, after he fled from them and had discarded a loaded gun and a baggie containing heroin. (Sanchez, supra, 63 Cal.4th at p. 671.) He faced charges of possession of a firearm by a felon, unlawful drug possession while armed, and active participation in the "Delhi" street gang, with a general gang enhancement. (Id. at p. 671 & fn.1.)
The prosecution's gang expert in Sanchez had worked as a gang officer for 17 years and had investigated over 500 gang cases. (Sanchez, supra, 63 Cal.4th at p. 671.) While he had never met Sanchez and had never been present during any police contacts with him, the expert had reviewed Sanchez's "STEP notice" provided to suspected gang members warning of criminal exposure for participating in gang crimes as well as his "field identification" (FI) card chronicling his gang history. (Id. at pp. 672-673.) The gang expert also described four reports of contacts police had with Sanchez and related statements contained in police documents. (Ibid.) He testified about the Delhi gang culture, its activities and territory, and offenses committed by other Delhi gang members. (Id. at p. 672.) Based on all this information, the expert opined that Sanchez was a member of the Delhi gang and had possessed the gun and drugs to benefit the gang. (Id. at p. 673.)
The jury convicted Sanchez of the crimes as charged. (Sanchez, supra, 63 Cal.4th at p. 673.) The Court of Appeal reversed his conviction for active gang participation but otherwise affirmed. (Ibid.)
The Supreme Court reversed the gang enhancement because the expert testimony that Sanchez was in a gang was based upon erroneously admitted evidence. (Sanchez, supra, 63 Cal.4th at p. 671.) The Court "adopt[ed] the following rule: When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. 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." (Id. at p. 686.) The court identified testimonial hearsay statements to be those made "primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.)
The Court further explained: "Gang experts . . . can rely on background information accepted in their field of expertise under the traditional latitude given by the Evidence Code. They can rely on information within their personal knowledge, and they can give an opinion based on a hypothetical including case-specific facts that are properly proven. They may also rely on nontestimonial hearsay properly admitted under a statutory hearsay exception. What they cannot do is present, as facts, the content of testimonial hearsay statements. . . . [O]nly when a prosecution expert relies upon, and relates as true, a testimonial statement would the fact asserted as true have to be independently proven to satisfy the Sixth Amendment." (Sanchez, supra, 63 Cal.4th at p. 685.)
Under the facts in Sanchez, the Supreme Court concluded the gang expert's testimony relating case-specific information obtained from police reports was improper testimonial hearsay because it concerned "case-specific facts . . . gathered during an official investigation of a completed crime." (Sanchez, supra, 63 Cal.4th at p. 694.) The expert testified about the portion of STEP notices retained by the police, which were signed by an officer under penalty of perjury and included the "defendant's biographical information, whom he was with, and what statements he made." (Id. at p. 696.) The court concluded this information was sufficiently formal to constitute testimonial hearsay. (Id. at pp. 696-697.) The court also raised the possibility that the FI card information could be testimonial hearsay if the card was produced in the course of an ongoing criminal investigation. (Id. at p. 697.)
Under Sanchez, much of Detective Anderson's challenged testimony was testimonial hearsay. Detective Anderson had no personal involvement in six of the nine police contacts with Walker he described. Rather, for these specific contacts, Detective Anderson related facts he reviewed in police reports or took from communications with other officers derived in their past investigations of criminal activity. Any evidence from these sources was testimonial hearsay prohibited by Sanchez. Because Detective Anderson was not personally involved in those particular incidents, they were otherwise unauthenticated. Since there was no showing that the officers or other individuals involved in those reports were unavailable or were subject to prior cross-examination, this evidence violated the rule articulated in Crawford and was inadmissible.
These are the contacts numbered 2, 3, 5, 6, 7, and 9 set forth in the Background section of our opinion.
The People attempt to distinguish Sanchez on the facts, arguing that "the types of inadmissible hearsay that the California Supreme Court focused on in Sanchez are largely absent from this case." The People point out that Detective Anderson never discussed any STEP notice or an FI card and only "some police reports." This may be technically correct, but provides no basis to distinguish Sanchez. Detective Anderson had no personal knowledge of 6 of the 9 specific police contacts he discussed and relied upon in formulating his opinions. This testimonial hearsay falls squarely within the purview of Sanchez, and was not admissible to prove Walker's involvement in Deep C gang activities.
However, not all of Detective Anderson's testimony must be disregarded as violative of the Sixth Amendment. Only that portion of his testimony relating case-specific facts from police reports or communications with other officers must be struck. There is no reason to disregard Detective Anderson's testimony regarding incidents he was personally involved in investigating. Nor does our conclusion affect the other categories of evidence Detective Anderson presented, which we understand to be outside the scope of Walker's Sixth Amendment challenge (i.e., Detective Anderson's testimony on Deep C gang background information and activities) or are challenged on other grounds (i.e., social media posts and conviction records of other Deep C gang members).
These are the contacts numbered 1, 4, and 8 set forth in the Background section of our opinion.
Any challenge to Detective Anderson's testimony regarding Deep C background information, identifiers, primary activities, or territory would fail. This testimony falls squarely under the category of "background testimony" describing a gang's "conduct and its territory" and therefore does not violate Sanchez's prohibition on relaying testimonial hearsay. (Sanchez, supra, 63 Cal.4th at p. 698.) Sanchez was clear that it did "not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field." (Id. at p. 685.) Such background information "has never been subject to exclusion as hearsay, even though offered for its truth." (Ibid.)
With respect to the social media posts and conviction records of other Deep C gang members, Walker appears to suggest for the first time in his supplemental briefing that these, too, fall under the purview of Sanchez. His arguments against this evidence, which were not raised in Walker's opening brief, are waived. (See Moore v. Shaw (2004) 116 Cal.App.4th 182, 200, fn. 10 ["Ordinarily, an appellant's failure to raise an issue in its opening brief waives the issue on appeal."]). Even if not forfeited, we do not consider social media posts to be the type of case-specific memorialization of facts relating to past criminal activity classified as testimonial hearsay in Sanchez. Nor does Sanchez affect certified conviction records which are not considered testimonial hearsay and are admissible as official records. (See People v. Taulton (2005) 129 Cal.App.4th 1218, 1225; People v. Delgado (2008) 43 Cal.4th 1059, 1070.)
C. Gang-Related Evidence
Walker also takes aim at "cumulative gang evidence" the prosecution proffered. This evidence includes the "expert testimony regarding multiple uncharged offenses committed by other suspected gang members and even by [Walker] himself" as well as the social media posts. Walker contends this evidence is "extensive, cumulative, unreliable and prejudic[ial] gang evidence" that "served to vilify [Walker] in front of the jury." We review this challenge for an abuse of discretion. (People v. Benavides (2005) 35 Cal.4th 69, 90.)
Gang-related evidence must be carefully scrutinized before it is admitted because of its potentially inflammatory impact on juries. "Gang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense." (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) Nor should gang-related evidence be admitted if its probative value is minimal or if it is only tangentially related to the charged offenses. (People v. Cardenas (1982) 31 Cal.3d 897, 904; People v. Ruiz (1998) 62 Cal.App.4th 234, 290 (Ruiz).)
However, gang-related evidence is admissible when logically relevant to some material issue in the case, not just as character evidence. (Ruiz, supra, 62 Cal.App.4th at p. 240.) When a gang enhancement is alleged, a prosecutor "must prove facts beyond the underlying offense. [Citation.] 'Accordingly, when the prosecution charges the criminal street gang enhancement, it will often present evidence that would be inadmissible in a trial limited to the charged offense.' " (People v. Gutierrez (2009) 45 Cal.4th 789, 820.) Even Walker recognizes "some gang evidence was admissible to prove the gang charges and enhancement and a possible motive for all the offenses."
Indeed, the charged gang enhancement required proof that Walker carried the firearm to benefit a "criminal street gang" and that Walker specifically intended to assist, further, or promote criminal conduct by gang members. (§ 186.22, subd. (b)(1).) This required the prosecution to prove Deep C was a "criminal street gang," a term defined as an "organization, association, or group of three or more persons . . . having [certain criminal acts] as one of its primary activities . . . , having a common name or common identifying symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) Establishing a "pattern of criminal gang activity" required the prosecution to prove further that the Deep C gang had committed two or more of the offenses enumerated in section 186.22, subdivision (e), such as assault, robbery, and selling narcotics. Because of these burdens to prove the enhancement, the prosecution inevitably and necessarily sought to introduce evidence that Deep C members were involved in "criminal gang activity."
Accordingly, we conclude the trial court did not abuse its discretion in admitting the gang-related testimony Walker challenges. The evidence related directly to the prosecutor's burden to show Deep C to be a criminal street gang engaged in a pattern of criminal gang activity. Such evidence related to firearm possession was especially probative given the charge against Walker.
Specifically, the multiple uncharged offenses attributable to other Deep C members were not cumulative, unreliable, or prejudicial. First, it is not entirely clear what these multiple uncharged offenses are since Walker does not specify the particular statements he considers improper or cumulative. Failing to present arguments with references to the record can result in forfeiture of any contention that could have been raised on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) In our review of the record, Detective Anderson discussed an alleged home invasion robbery by Robbie Ross and Deshawn Haywood and an arrest of Bobby Smith without referring to specific charges, but he also referred to actual criminal convictions for Deep C gang members such as Sammy Bernstein (firearm assault), Deandre Richard, Devonte Featherstone (firearm assault), and Devonte Bernstein (firearm assault). This evidence was both relevant to and probative of the gang enhancement. (See People v. Williams (2009) 170 Cal.App.4th 587, 612.)
To the extent Walker challenges any uncharged offenses attributed to him for which Detective Anderson had no first-hand knowledge, we addressed such evidence in Section B. above and concluded it was improperly admitted under the confrontation clause.
Nor were the social media posts unreliable due to the lack of authentication, as Walker contends. "Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (Evid. Code, § 1400.) Here, the prosecution established that Walker's name, birthdate, and likeness were associated with the information on the social media account. This was enough to authenticate the posts, especially because Walker never proffered any evidence to refute their authenticity. " 'As long as the evidence would support a finding of authenticity, the writing is admissible.' " (People v. Sarpas (2014) 225 Cal.App.4th 1539, 1571.)
The social media posts Walker considers to be "inflammatory," which include photos of him with would-be Deep C gang members and comments which Detective Anderson interpreted to refer to guns, are not unduly prejudicial either. "[T]he fact probative evidence reflects negatively on a defendant is not grounds for its exclusion." (People v. Valdez (2011) 201 Cal.App.4th 1429, 1437 ["gang braggadocio" from defendant's MySpace page found relevant and probative].) Walker's argument, with its partial focus on whether or not Detective Anderson knew Walker's Facebook comments were parroting rap lyrics, is an effort to undermine Detective Anderson's credibility. However, the jurors were not bound to accept any of Detective Anderson's opinions as true or correct. The jurors could disregard any of his opinions they found unbelievable, unreasonable, or unsupported by the evidence, and they were so instructed. (See People v. Ewing (2016) 244 Cal.App.4th 359, 383.) " 'We do not reassess the credibility of witnesses.' " (In re Alexander L. (2007) 149 Cal.App.4th 605, 610.)
Finally, acknowledging its "obligation to assure that undue prejudice does not outweigh substantially the probative value of the testimony," the trial court proceeded carefully through the various types of evidence proffered by the prosecution and provided limiting instructions as needed. The trial court repeatedly instructed the jury about the limited purpose of gang evidence and made clear to the jury that certain testimony was offered only for the gang enhancement and not for other purposes. It told the jurors not to extrapolate from the gang evidence that Walker was a bad person or had a propensity to commit crime. In these circumstances, the gang-related evidence admitted by the trial court was neither cumulative, unreliable nor unduly prejudicial, and the trial court did not err in admitting it.
D. Substantial Evidence
Walker's principal challenge is that there was insufficient evidence to support the jury's true finding of the gang enhancement. We will address this argument in light of the evidence we have determined was properly admitted.
On a substantial evidence challenge, "[w]e review claims of insufficient evidence by examining the entire record in the light most favorable to the judgment below. " (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) " '[T]he relevant question [under the substantial evidence standard of review] is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 576.) "[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) " 'A reasonable inference, however, "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' " (People v. Rios (2013) 218 Cal.App.4th 1038, 1067.) "Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate ' "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citations.]' " (In re Alexander L., supra, 149 Cal.App.4th at p. 610.)
"There are two 'prongs' to the [gang] enhancement. [Citation.] First, the prosecution is required to prove that the underlying [crime was] 'committed for the benefit of, at the direction of, or in association with any criminal street gang.' [Citation.] Second, there must be evidence that the [crime was] committed 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.' " (People v. Rios, supra, 222 Cal.App.4th at p. 561.)
Even assuming there was substantial evidence that Walker carried the firearm "for the benefit" of the Deep C Gang, we cannot conclude there was sufficient evidence for a jury to conclude beyond a reasonable doubt that Walker carried the gun "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).)
Without evidence that Walker was with any Deep C gang member or communicating with any Deep C gang member at the time of his September 2014 arrest, it is unlikely the prosecution could establish Walker's firearm possession was done "at the direction of [] or in association with" the Deep C gang. (See § 186.22, subd. (b)(1).)
In Frank S., supra, 141 Cal.App.4th 1192, the defendant was found with a knife when the police stopped him for a bicycle infraction. (Id. at p. 1194.) The defendant stated he had been attacked two days earlier and admitted to the officers he had the knife to protect himself from other gang members, who saw him as friendly to a rival gang. (Ibid.) During intake at the juvenile detention facility, the defendant said he had friends in gangs and listed himself as an affiliate of a gang. (Id. at p. 1195.) A gang expert testified gangs benefit when their members carry weapons because it provides them with a means of self-defense. (Id. at pp. 1195-1196.) The court ruled that was not enough to support a finding the defendant harbored the requisite intent to promote, further or assist a gang. (Id. at p. 1196.) The court emphasized, "The prosecution did not present any evidence that the [defendant] was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense." (Id. at p. 1199.) The only other evidence was the defendant's statement to the police, that he had been attacked two days prior and needed the knife for protection, was inadequate evidence of the defendant's intent for the knife. (Id. at p. 1195.) The court reversed the defendant's gang enhancement and emphasized that "crimes may not be found to be gang-related based solely upon a perpetrator's criminal history and gang affiliations." (Ibid.)
So, too, here. The prosecution did not present substantial evidence for a jury to conclude beyond a reasonable doubt that when Walker was arrested with the concealed firearm, he had the specific intent to promote or assist in criminal conduct by Deep C gang members. Walker did not flash gang signals around the time of his arrest, nor was he wearing a Cincinnati Reds cap or any other Deep C identifier. There was no evidence he was with known Deep C members when he was arrested or that Deep C members were nearby; rather, he was with an unidentified female. There was no evidence he obtained his gun from a gang member to use for gang-related activities. The prosecution did not present any evidence that Walker was en route to the Deep C hangout that had been the target of the Maine Line gang, or that he had any destination. Nor did the prosecution present evidence of what Walker planned to do with the firearm, or that he planned to use it in a gang-related offense. Detective Anderson's suggestion that Walker had a gun because of an escalating feud between Deep C and Maine Line around the time of his arrest in September 2014 veers on speculation, especially given Detective Anderson's testimony that "there's been hundreds of shootings and homicides" attributed to Deep C's "ongoing feud" with rivals since 2003.
The evidence that was available to support a finding that Walker had the requisite intent was insufficient. Walker was in Deep C territory at the time of his arrest, but that is where he lived. The three instances from May 2011, July 2012, and September 2013 involving Walker that Detective Anderson personally investigated had no established connection to Walker's possession of a firearm in September 2014. Further, in none of these specific situations was there evidence Walker possessed a firearm. Further, the approximately 40 non-specific contacts Detective Anderson had with Walker, the Deep C gang background information, the offenses committed by other suspected Deep C gang members, and the social media posts were inadequate to establish beyond a reasonable doubt that Walker carried a firearm with the specific intent to further Deep C's criminal conduct. The record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding of specific intent. "Not every crime committed by gang members is related to a gang." (People v. Albillar (2010) 51 Cal.4th 47, 60.) Detective Anderson himself acknowledged that Richmond residents may carry guns for protection, regardless of any gang affiliation.
The People's efforts to distinguish Frank S. are not persuasive. The People argue that the factual support for Walker's enhancement was "more extensive and better articulated here" than in Frank S. because Walker was arrested in Deep C territory and he "did not contest" he was a Deep C gang member. Not so. As noted, the fact that Walker was arrested in Deep C territory is overstated, given he was in the neighborhood where he grew up and lived. Further, Walker's decision to not testify to contest his membership in the Deep C gang has no bearing on our analysis. (People v. Haldeen (1968) 267 Cal.App.2d 478, 482-483 ["In California it is established the fact a defendant in a criminal case does not testify will not support an inference of guilt or the existence of any fact essential to the charge against him; is not proof of consciousness of guilt; is not an admission that the charge against him is true; has no evidentiary value; and is not relevant to any issue in the case."].) Even if Walker admitted to being a Deep C member, such "membership alone [would] not prove a specific intent to use the [firearm] to promote, further, or assist in criminal conduct by gang members." (Frank S., supra, 141 Cal.App.4th at p. 1199.) The People also contend Frank S. is distinguishable because the gang expert in that case provided the jury with his opinion on the ultimate issue, while Detective Anderson presented his opinion here through a proper hypothetical. Even if true, this is not a meaningful difference given the dearth of evidence of the defendant's intent beyond such expert testimony ultimately defeated the gang enhancement in Frank S., which is also the case here. (Ibid.)
People v. Garcia (2007) 153 Cal.App.4th 1499 (Garcia), the case the People primarily rely upon, does not compel a different result. In Garcia, the defendant was stopped for a traffic violation and officers found an unregistered, loaded handgun in the fuse box on the driver's side of his truck. (Id. at pp. 1502-1503.) There was evidence that, not only was the defendant an active gang member who had knowledge of the inner workings of the gang, but he had been in the gang for many years and had committed enough street crimes to have gained respect within the gang. (Id. at p. 1504.) The evidence also suggested the defendant obtained his handgun from his fellow gang members. (Id. at pp. 1505-1506.) An expert testified that guns were "huge" within the gang, that if a gang member possessed a gun, all of the other gang members would know about it, and that the gang's status would benefit from a gang member's reputation for carrying a firearm. (Id. at p. 1506.) The expert explained guns were used to intimidate members of their own gang, as well as other gangs and described " 'possession of the gun [as] power within the gang itself.' " (Ibid.) The expert believed that, based on these facts and others, including the defendant's gang-related criminal history, the defendant's possession of an unregistered and loaded handgun in his truck was for the benefit of his gang. (Id. at pp. 1504-1506.) But Garcia's analysis and conclusion deal with the first prong of the gang enhancement the prosecution had to prove—whether the underlying crime was committed for the benefit of the gang. (See Rios, supra, 222 Cal.App.4th at pp. 560-561.) To the extent it bears on the specific intent requirement, its facts are distinguishable. The defendant in Garcia obtained his firearm from other gang members, which indicated he intended to use the weapon for his gang. There is no such evidence here.
E. Harmless Error
Finally, because we have determined that testimonial hearsay from case-specific police reports and communications with other officers was erroneously admitted, we address whether the trial court's decision to admit such hearsay was prejudicial. (Chapman v. California (1967) 386 U.S. 18, 24-25 (Chapman).)
Because the "gang-related evidence" was properly admitted, we do not address the harmless error argument raised by Walker with respect to this evidence.
Walker contends that Detective Anderson's extensive reliance on inadmissible testimonial hearsay in violation of the confrontation clause means that like the Supreme Court in Sanchez, we cannot conclude that admission of Detective Anderson's testimony was harmless beyond a reasonable doubt. In contrast, the People contend even if any testimony in this case involved inadmissible testimonial hearsay under Sanchez, its admission was harmless in light of the other evidence of Walker's gang involvement.
Under Chapman, "the judgment must be reversed unless the prosecution can show beyond a reasonable doubt that the result would have been the same notwithstanding the error. (Chapman, supra, 386 U.S. at p. 24.) "[T]he appropriate inquiry is 'not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.' " (People v. Quartermain (1997) 16 Cal.4th 600, 621.) "To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Thus, to say that [the error] did not contribute to the verdict is to make a judgment about the significance of the [error] to reasonable jurors, when measured against the other evidence considered by those jurors independently of the [error]." (Yates v. Evatt (1991) 500 U.S. 391, 403-404.)
Here, Detective Anderson's case-specific hearsay testimony encompassed multiple arrests for a variety of crimes, including firearm possession, possessing narcotics for sale, and unlawfully driving or taking a vehicle, which Detective Anderson sought to connect to Deep C activities. It also included inadmissible testimony that in September 2014, the same month he was arrested, Walker had left a wounded Deep C gang member at the hospital, which the prosecution relied on to establish Walker's motivation for carrying a loaded firearm. Excluding such case-specific testimony, the remaining material evidence largely amounted to Deep C background information and Walker's gang affiliations insufficient to establish intent. Under these circumstances, we cannot conclude the admission of Detective Anderson's testimony relating case-specific statements concerning Walker's gang affiliations was harmless beyond a reasonable doubt.
DISPOSITION
The true finding on the gang enhancement under section 186.22, subdivision (b)(1), is reversed and the gang enhancement stricken. The clerk of the superior court is directed to amend the abstract of judgment to strike gang enhancement and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Pollak, J.