Opinion
G053262
12-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JOEL AGUILAR, Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF1575) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Joel Aguilar of premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a) [count 1]; all further statutory citations are to the Penal Code unless noted), conspiracy to commit murder (§ 182, subd. (a)(1) [count 2]), active participation in a criminal street gang (§ 186.22, subd. (a) [count 3]), and possession of a firearm by a prohibited person (§ 29800, subd. (a)(1) [count 4]). The jury also found Aguilar committed attempted murder and conspiracy for the benefit of, at the direction of, or in association with a criminal gang (§ 186.22, subd. (b)(1)), and intentionally and personally discharged a firearm proximately causing great bodily injury (§ 12022.53, subd. (d)). The trial court found Aguilar suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (d), (e)(2)(A), 1170.12, subd. (b)), and two prior serious or violent felony convictions (§§ 667, subd. (a), 667.5, subd, (b)).
Aguilar contends the trial court erred by admitting testimonial hearsay recounted by the prosecution's gang expert in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). He also argues the expert improperly testified Aguilar acted with actual knowledge his fellow gang members had engaged in criminal gang activity (People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), and that the court erred by admitting Aguilar's tape-recorded jailhouse telephone conversations over hearsay, relevance, and Evidence Code section 352 objections. As we explain, we find no basis for reversal in these contentions, and therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On July 22, 2014, around 11:30 p.m., Maria V. parked her car on West Myrtle Street in Santa Ana to pick up one of her children from a babysitter, her boyfriend's cousin. After another vehicle passed by going in the opposite direction, she heard a "couple [gun]shots." Maria, her 10-year-old son, and the cousin, who was a nurse, approached the male victim and found he had been wounded, but survived the shooting. At trial, Maria claimed she did not recognize the victim. At the preliminary hearing, she stated she had seen him around the Myrtle Street area but had never spoken with him.
Maria also testified at the preliminary hearing that she grew up with the defendant, Aguilar, who was her brothers' friend. The Townsend Street gang claimed their neighborhood as its territory, and she and her four brothers belonged to the gang (hereafter "Townsend Street gang" or just "Townsend"). Her nickname was "Cookie," and she implied Aguilar also belonged to the gang, testifying his moniker or nickname was "Bam Bam." Maria stopped hanging out with the gang several years before the shooting. She admitted her children's father had belonged to another gang for several years, West Myrtle, a Townsend rival.
Maria called 911 to report the shooting about 40 minutes after it occurred, requesting anonymity. She told the 911 operator she saw the shooting. The assailants rode in a four-door blue Ford Explorer driven by "Little Casper," a Townsend gang member later identified as Alberto Santana. Bam Bam, who Maria referred to as "Julio" Aguilar at one point in the 911 call, rode in the back seat and "did the shooting." She physically described the men, noting Aguilar had Townsend tattoos "everywhere" including his neck and hands, and she provided an address for Santana. She told the operator she had seen the men in a group at 805 South Townsend after the shooting.
Aguilar did not have Townsend tattoos on his hands. Also, the tattoos on his neck referred to "Southwest," not Townsend. Maria also apparently misdescribed Santana as tall. --------
Detective Charles Elms and his partner interviewed Maria two days after the shooting, and the prosecution played a recording of the interview for the jury. In the interview, Maria reluctantly admitted making the 911 call, after remarking "why would [she] want to snitch" on her brothers' and "baby daddy's" neighborhoods. She told the officers she could not "say any more" because she was at "risk of a lot of things," noting her family and "everybody . . . already knows I was there." She worried her name would appear in the "paperwork," citing other witnesses who had been killed.
Nonetheless, she identified photos of Little Casper and Bam Bam, and later admitted in court that Bam Bam was Aguilar. She further described in the interview some details about the shooting, including that Aguilar used a revolver and she heard six shots. She told the officers she called 911 because she was angry the shooting occurred in her children's presence, and the perpetrators had "no respect for families and kids." After the shooting, she went "straight over" to the 805 Townsend Street address, where a group had assembled, and yelled at Aguilar. Aguilar was not apologetic, claiming only that he did not know she was there. A "youngster" told her to "get the fuck out of [there]."
At trial, Maria claimed people she could not identify provided her with the information about the shooting, and she denied visiting Townsend Street to confront anyone. She claimed she made up the information about the shooting because she and Aguilar "had some issues" in the past and she despised him because he had disrespected her children by calling them each a "little fucking Turtle," a pejorative nickname Townsend used for West Myrtle. Santana also previously had disrespected her. She testified she was under the influence of marijuana and alcohol the night of the shooting. She explained her account at trial was truthful, and that she decided to tell the truth because her brother once had been convicted for something he did not do based on false testimony.
Corporal Galen Diaz responded to the shooting. Diaz found the victim, Antonio M., sitting in a chair in an apartment courtyard. He had sustained two gunshot wounds, one on his upper chest, and another on his upper left arm. Diaz knew Antonio as a West Myrtle gang member, and recognized West Myrtle gang tattoos on his body. Antonio was conscious and calling out angrily for paramedics. He generally refused to provide information about the shooting or to cooperate with the officers. Officers found a bullet core or slug in the street. Diaz also identified West Myrtle gang graffiti nearby on a dumpster and on the ground. Diaz spoke on the phone with Maria shortly after the shooting, and she said she was present when the shooting occurred, identifying Bam Bam as the shooter. Diaz knew from prior field contacts that Aguilar's moniker was Bam Bam.
Gang detectives accompanied by a SWAT (Special Weapons and Tactics) team arrested Aguilar and executed a search warrant at his residence at 805 South Townsend on August 6, 2014. They impounded a dark green 2002 Ford Explorer at an adjacent residence.
Aguilar made several phone calls after he was booked at the Santa Ana jail. The prosecutor played partial recordings of three calls for the jury. In one call, Aguilar told "Jackie" that "Macho" knew where his "other baby is at," and that there were "two inside there in the same spot." Jackie responded that "he didn't find it, he only brought this one." Aguilar told Jackie to tell "Gabriel" he needed to talk to him, and "tell him that that what was left over, tell him to take care of it and that he knows . . . what to do," repeating "he knows what to do." Aguilar stated "they don't got no proof they don't got nothing." He also noted "they raided" "Chapper's pad" and his "at the same time," and that "somebody snitching right there." During the same call, he also spoke to "Gilbert," and told him "all that shit that was left over, fool, get rid of it, fool, and you know what to do." Aguilar spoke of a "red container" buried on the corner at the entrance. He again noted "somebody [was] snitching right there in the hood," and "people supposedly . . . saying shit," but they did not have proof. Aguilar later suggested that "Ivan" had "the other one."
In a second call, while telling Jackie, "I'm fucked," Aguilar asked if remembered "Cookie." Jackie responded, "Aw, fucking bitch," but Aguilar noted "she's the only one, fool." Jackie, however, reported "that's not true, there's another also." Aguilar concluded by stating, "So, aw, fool, you need to respect that, be honest, fool, and tell them to get a hold of her, fool."
In a third call, when Jackie advised that calls and texts to "her," the person Aguilar had directed her to contact, had gone unanswered, Aguilar directed Jackie to "go look for her." He told Jackie not to "say anything, just go look for her and kick it with her," and when he asked Jackie cryptically, "[A]nd you know what that means, right," Jackie responded, "Fuck, man, are you serious?" She exhaled, "Oh my God" when Aguilar affirmed, "Word, fool." Aguilar suggested, "Just go chill with her fool and blaze it, you know." He stated, "For reals, fool. If not I'm I'm get fucked up." He noted, "She's the only one, babe. She was the only one, babe."
Detective Elms testified as a gang expert concerning Santa Ana Hispanic criminal street gangs. He detailed his training and experience, and generally described gang practices and motivations. Familiar with the Townsend criminal street gang, he described its history, symbols, membership, the "turf" or territory the gang claimed, its primary criminal activities, and he confirmed Townsend's rivalry with the West Myrtle Street gang. Elms explained that the shooting occurred in the heart of territory West Myrtle claimed, while Aguilar lived nearby, less than a mile away in the center of Townsend turf.
Elms noted he personally conducted many patrols in Townsend and West Myrtle Street gang territory, and testified his familiarity with these gangs stemmed from his personal contact with gang members while in the field, interviews with residents who live in the neighborhoods, and from speaking to other gang investigators. Elms drafted the search warrant that resulted in Aguilar's arrest and encountered Aguilar at the police station after his arrest, where Elms personally observed Aguilar's gang tattoos.
Elms explained the meaning of terms and tattoos unique to gang culture. For example, references to "baby" in gang parlance can mean a firearm. Elms explained that tattoos demonstrate allegiance to a gang, especially those displayed on areas of the body not covered by clothing. Elms explained that nonmembers typically do not obtain gang tattoos because doing so can be met with severe punishment; indeed, in his training and many years of experience, Elms only had heard of one nonmember doing so, and the gang retaliated by cutting out the tattoos.
Elms described how Aguilar's tattoos marked him as a Townsend member in photographs displayed to the jury. Aguilar had the word, "Southwest," a nickname for the Townsend gang, tattooed on his neck. "Townsend" was tattooed on his chest. Aguilar also had on his legs tattoos of the letters "C" (Calle meaning Street) and "T" (Townsend), as well as Southwest. Similarly, Santana, the driver of the vehicle involved in the shooting, had "S" and "W" (signifying Southwest) tattooed on his shins.
Elms was not familiar with anyone in the Townsend gang named "Julio" Aguilar. Elms searched the department's internal records and did not find anybody with that name associated with Townsend. Elms knew Aguilar had a brother named Juan, but he was in prison at the time of the shooting. Elms acknowledged testifying at the preliminary hearing that he previously believed "Julio" was Aguilar's brother and that at that time he had thought there was a "Bam Bam" (Julio) in the Townsend gang and a Little Bam Bam (defendant).
Elms opined Townsend's primary activities were narcotics sales and concealed firearm possession. He described several crimes constituting predicate acts committed by Townsend gang members. Elms conducted background research on Aguilar by reviewing nine Street Terrorism Enforcement and Prevention Act (STEP) notice notices, five field identification (FI) cards, and 14 police reports. For example, according to an April 9, 2014, STEP notice, Aguilar identified himself as "Bam Bam from Townsend Street," and stated he had been in the gang since he was 14 years old. Other STEP notices, FI cards and police reports dated between 2005 and 2014 contained similar information.
Based on this information and his interview with defendant, Elms concluded Aguilar was an active participant in the Townsend Street gang on the date of the shooting. Elms also opined Aguilar knew Townsend members engaged in a pattern of criminal activity based on a court document reflecting Aguilar previously admitted in court under penalty of perjury committing an act with the intent to benefit Townsend Street, which was a criminal street gang whose members he knew had engaged in a pattern of criminal activity. Elms conducted similar research on Santana and concluded he was an active participant in Townsend Street on the date of the shooting, and identified himself as Casper, or "Huero," meaning "white guy" or "white boy." Elms also reviewed STEP notices and FI cards related to the victim Antonio, who had consistently admitted membership in West Myrtle. Elms agreed West Myrtle had other rivals.
Based on hypothetical questions reflecting the facts of the case, Elms noted the tactical advantage of the shooter riding in the rear seat because the shooter would not have "to shoot in front of the driver." He opined the crime was committed "for the benefit of, at the direction of, or in association with the street gang that the people in that car were from," noting it "would benefit their reputation, it would benefit their status. . . ." He explained that "gang members are expected to put in work, they're expected to commit crimes," and "two gang members were together [associating when they] entered the rival gang member territory to commit a crime." Elms opined the hypothetical crime was committed to assist and promote the gang, and benefitted and promoted criminal conduct by members of the gang. The violent crime elevated the assailants' status within the gang, and promoted the gang as a whole. On cross-examination, Elms stated he had heard the Mexican Mafia had in the last couple of years issued a rule against drive-by shootings.
Elms and his partner spoke with Aguilar at the station on the day of his arrest after advising him of his rights (Miranda v. Arizona (1966) 384 U.S. 436). The prosecutor played a recording of the interview at trial. Aguilar initially denied ever riding in a car with Santana or entering Myrtle Street territory. He later admitted he might "sometimes" take a shortcut through that area to get to work at the swap meet. He then admitted "hang[ing] out" with Santana, and riding in Santana's sister's Explorer. But he denied riding in the Explorer with Santana, but then admitted doing so with Santana and Santana's "girl" on occasion. He acknowledged he might have passed through the Myrtle area, but not on Myrtle Street, earlier on the evening of the shooting, around 6:00 or 7:00 p.m..
The parties stipulated that on the date of the shooting Aguilar was prohibited from possessing a firearm.
Following trial in February 2016, the jury convicted Aguilar as noted above. In March 2016, the trial court imposed a prison term of 110 years to life for conspiracy to commit murder (count 2), comprised of a term of 25 years to life, tripled under the Three Strikes law, plus a consecutive term of 25 years to life for personally and intentionally discharging a firearm causing great bodily injury (§ 12022.53, subd. (d)), plus two five-year enhancements for prior convictions under section 667, subdivision (a). The court imposed a concurrent term for felon in possession of a firearm, and stayed terms for the remaining offenses.
II
DISCUSSION
A. Sanchez
Relying on Sanchez, supra, 63 Cal.4th 665, which was pending in the Supreme Court at the time of Aguilar's trial, but had not been decided, Aguilar contends the gang expert relayed testimonial hearsay to the jury and therefore violated Aguilar's confrontation rights. Even assuming Sanchez applies retroactively, which Aguilar does not address, Sanchez does not aid Aguilar for three reasons.
First, as we discuss in more detail below, Aguilar forfeited his challenge because he did not assert a hearsay objection to admission of the evidence he now argues should have been excluded, though the trial court invited hearsay challenges to the evidence. Because a statement's hearsay nature is an underlying predicate for a confrontation claim under Sanchez, Aguilar's failure to assert a hearsay objection forfeits his claim on appeal. Second and related, some of the evidence Aguilar now objects to does not fall under Sanchez's proscription against experts conveying hearsay evidence to the jury under the guise of rendering an expert opinion. Instead, the material was at most "routine" hearsay untethered to any expert opinion, and Aguilar's failure to object to the evidence forfeits his claim. Third, any error in admitting the evidence was harmless in light of the overwhelming evidence Aguilar was an active Townsend gang member.
Specifically, Aguilar asserts the trial court violated the principles articulated in Sanchez by allowing Detective Elms to testify concerning: (1) statements by Aguilar and Santana regarding their gang membership contained in police reports, STEP notices, and FI cards, as support for Elms' opinion that both men were active Townsend gang members; and (2) information contained in internal police records showing there was no member of the Townsend Street gang named Julio Aguilar, and that Aguilar's brother, Juan Aguilar, could not have committed the shooting because he was in prison.
To address Aguilar's claims, we briefly review Sanchez, which revisited a hearsay issue earlier addressed in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley). Gardeley held that foundation material for a gang expert's opinion consisting of out-of-court statements made by gang members or other individuals does not constitute hearsay because those statements are not offered for their truth. (Gardeley, at p. 619; but see People v. Hill (2011) 191 Cal.App.4th 1104, 1127 [concluding such statements are necessarily offered for their truth, but finding Gardeley binding].) Statements not offered for their truth, i.e., nonhearsay, do not trigger a defendant's right of confrontation. (Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 (Crawford).)
Sanchez disapproved Gardeley to the extent it allowed an expert to relate "case-specific" hearsay statements to the jury under the guise of foundation for the expert's opinion. (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) "Case-specific" facts concern "the particular events and participants alleged to have been involved in the case being tried" (id. at p. 676), as opposed to an expert's "general knowledge in his field of expertise" (ibid.). In Sanchez, the prosecution's gang expert opined the defendant was an active member of a criminal street gang and based his opinion on various out-of-court statements concerning the defendant's alleged gang ties recited in police reports, a STEP notice, and an FI card. (Id. at pp. 671-673.) The expert relayed to the jury the circumstances and statements documented by nontestifying police officers in each of those sources to bolster his opinion the defendant was an active gang member. (Ibid.)
Overruling Gardeley, the Sanchez court explained: "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." (Sanchez, supra, 63 Cal.4th at p. 686.) Consequently, Sanchez also held: "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." (Ibid.)
Here, Elms testified he conducted background research on Aguilar that included reviewing nine STEP notices, five FI cards, and 14 police reports. Elms relayed content from some of these sources to the jury, including, for example, information from a STEP notice in April 2014 that documented a police contact in which Aguilar identified himself as Bam Bam from Townsend Street gang and admitted he had been in the gang since he was 14 years old. Elms also drew on other STEP notices and FI cards similarly recounting Aguilar's and Santana's gang affiliation to support his opinion the men were active members of Townsend, which in turn supported his opinion Aguilar committed the shooting for the benefit of, at the direction of, and in association with the Townsend Street gang or its members.
Aguilar now claims the statements that nontestifying police officers documented in these contacts constituted hearsay under Sanchez and were testimonial in nature because the officers recorded them to use in future criminal proceedings, and therefore their admission violated his confrontation rights under Crawford and its progeny, as reflected in Sanchez. But Aguilar forfeited this claim by failing to object to the evidence on hearsay grounds, despite the trial court's express invitation. Arguing against forfeiture, Aguilar asserts a hearsay objection would have been futile under Gardeley. Specifically, he argues that because Sanchez "reversed course" concerning the nonhearsay nature of expert basis evidence, he is entitled to rely on the general rule that an objection is not required when it "is based on a change in the law that the appellant could not reasonably have been expected to foresee." (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1334.)
The record does not support Aguilar's claim that an objection on hearsay grounds would have been futile. Before trial, the prosecutor moved to admit evidence of Aguilar's and Santana's gang backgrounds through the gang expert, including their statements contained in STEP notices, FI cards and police reports. The court conducted an informal unreported conference in chambers and formalized its "tentative indications" on the record the following day. The court limited the gang expert's ability to relay information to the jury from the STEP notices, FI cards, and reports, as follows: "What I'm thinking is relevant is that [Aguilar] was stopped, that a police officer gave him a step notice and that if there is information about name, moniker and gang, all of that would be admissible. But the surrounding circumstances would not." The court similarly ruled information concerning Santana's gang background would be admitted, to which defense counsel stated she had no objection.
But the trial court did not preclude Aguilar from making a hearsay objection. To the contrary, the court signaled it was receptive to such objections, noting at the outset of its comments on the record that it was aware the Supreme Court had granted review in several cases pertaining to confrontation claims, specifically in gang prosecutions. The court's comments further suggest it told the parties it would entertain hearsay objections but, as the court explained, "we spoke yesterday [about how] there could be a strategic reason why the defense has decided [it is] not going to object on hearsay as to this area," giving the example, "the defense may say, I don't want him bringing in 13 different officers to all talk about all the contacts that they had with them, so I'm not objecting on hearsay grounds."
On this record, we conclude Aguilar forfeited any hearsay objection. The purpose of requiring a specific objection (Evid Code, § 353) is to "alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility." (People v. Williams (1988) 44 Cal.3d 883, 906.) Had Aguilar objected, the prosecutor could have expanded the gang evidence with "independent competent proof" of the challenged basis for the expert's opinions. (Sanchez, supra, 63 Cal.4th at p. 684 ["Alternatively, the evidence can be admitted through an appropriate witness"].) For instance, the prosecution may choose to call, in addition to its gang expert, the officer or officers who authored the police report or issued the STEP notice or FI card recording the defendant's admission of his or her gang affiliation. In such circumstances, there is no confrontation violation because the officer who recorded the alleged admission is available for cross-examination, and the defendant's own statement admitting gang affiliation falls under the hearsay exception for a party admission. (Evid. Code, § 1220.) Consequently, Aguilar also forfeited any confrontation objection for failure to raise it. (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 313, fn. 3 ["The right to confrontation may, of course, be waived, including by failure to object to the offending evidence"].)
Second and related, Aguilar similarly forfeited the hearsay objection he now raises on appeal to Elms's testimony that he could not locate a "Julio" Aguilar in any department records and that another search showed Aguilar's brother Juan was in prison at the time of the shooting, and therefore could not have committed the crime. These challenges fall outside Sanchez's scope because Elms did not rely on the result of these searches as basis evidence for his conclusion Aguilar was a gang member or any other opinion. Instead, he simply disclosed the results of record searches he personally performed. In any event, absent a specific objection (Evid. Code, § 353), Aguilar forfeited his challenge, and all admitted evidence is competent to support a judgment, even if it is hearsay. (Flood v. Simpson (1975) 45 Cal.App.3d 644, 649; Evid. Code, § 140, Law Rev. Com. Comment ["'Evidence' is defined broadly to include[] anything offered in evidence," including hearsay, which "may be considered in support of a judgment"].)
Finally, even assuming Aguilar did not forfeit his Sanchez challenges, any error is harmless. The federal standard for harmless error ordinarily governs the asserted invasion of constitutional rights, including violations of a defendant's right of confrontation. (Sanchez, supra, 63 Cal.4th at p. 699.) That standard requires reversal unless the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
The Attorney General concedes that to the extent Elms relayed to the jury the contents of police reports outside his personal knowledge, and the reports reflected the investigation of completed crimes, statements made in those reports constituted testimonial hearsay. However, because Aguilar's conduct and admissions in properly admitted testimony marked him as a member of the Townsend Street gang, we have no difficulty concluding the jury would have reached the same verdicts had defense counsel objected and obtained the exclusion of the evidence Aguilar now challenges.
Much of Elms's testimony was based on personal knowledge because he had conducted "heavy" patrols in Townsend Street and West Myrtle Street gang territory and personally interviewed Aguilar during the investigation. (See Sanchez, supra, 63 Cal.4th at pp. 676-677 [an expert may relate case-specific facts about which the expert has personal knowledge].) During that interview, Aguilar made statements about his gang affiliation and Elms personally observed Aguilar's Townsend tattoos. Independently admitted photograph evidence of Aguilar's tattoos also supports the gang expert's testimony. (See Sanchez, supra, 63 Cal.4th at p. 677 [presence of a tattoo is a case-specific fact that can be established by a witness who saw the tattoo or by an authenticated photograph; expert properly may explain the tattoo's significance in gang culture and opine that the tattoo shows gang membership].)
Other properly admitted evidence duplicated Aguilar's admissions in the various STEP notices and FI cards that he was a Townsend gang member. Maria V.'s 911 call, interview with police, and testimony at trial all disclosed that Aguilar belonged to the gang and went by the moniker Bam Bam. The jury could infer from Aguilar's presence at the meeting among several Townsend members after the shooting that Aguilar was currently active in the gang. Additionally, another officer who testified, Officer Diaz, stated he knew Aguilar was Bam Bam from the Townsend Street gang based on his previous contacts with Aguilar in the field. Moreover, defense counsel admitted Aguilar was a gang member during closing argument, conceding the issue.
The same is true regarding Santana. Other properly admitted evidence duplicated information concerning his gang ties in the STEP notices, FI cards, and police reports. As with Aguilar, Elms personally observed Santana's gang tattoos at the police station and the trial court properly admitted photographs of the tattoos. Maria V.'s 911 call and interview also established evidence Santana as a member of the Townsend Street gang with the moniker Little Casper. For all the foregoing reasons, Aguilar's hearsay and confrontation challenges under Sanchez therefore fail. B. Killebrew
Aguilar argues the trial court erred by admitting over his objection Elms's testimony Aguilar personally knew Townsend Street gang members had engaged in a pattern of criminal gang activity. The Attorney General concedes error, but asserts it was isolated and harmless. We agree.
A street terrorism conviction requires active participation "in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity." (Pen. Code, § 186.22, subd. (a).) At trial, the prosecutor asked Elms if he had an opinion on whether "the defendant knew" Townsend members "engaged in or have engaged in a pattern of criminal activity." Defense counsel objected, citing Killebrew, supra, 103 Cal.App.4th 644. When the trial court overruled the objection, Elms opined, "I believe he did," citing a court document in which Aguilar admitted, under penalty of perjury, he committed an act with the intent to benefit Townsend Street, a criminal street gang whose members he knew had engaged in a pattern of criminal activity.
Killebrew held a gang expert may not offer an opinion on the subjective knowledge and intent of a particular defendant. (Killebrew, supra, 103 Cal.App.4th at p. 658; but see People v. Vang (2011) 52 Cal.4th 1038, 1048 , fn. 4 (Vang) [observing that "in some circumstances, expert testimony regarding the specific defendants might be proper"].) Killebrew involved a gang expert's testimony concerning a hypothetical gang member's knowledge of a gun in a vehicle other than the one in which he was a passenger. The reviewing court concluded the hypothetical was so transparent that it constituted an opinion on the defendant's subjective state of mind, an issue reserved for the jury. (Killebrew, at p. 658 ["suspects' knowledge and intent on the night in question[are] issues properly reserved to the trier of fact"].) But in Vang, the high court subsequently explained that hypotheticals mirroring the facts of the case are proper because expert opinion evidence must be "rooted in the evidence of the case being tried, not some other case." (Vang, supra, 52 Cal.4th at p. 1046; see People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3 [expert may properly testify concerning typical gang member motivations and intent, though this touches on ultimate issues of motive and intent].) In Vang, the expert did not "testify directly about the defendants," so Vang assumed Killebrew remained good law. (Vang, at p. 1048, fn. 4.)
Here, while Elms transgressed the limits set in Killebrew by stating he believed Aguilar knew his fellow gang members engaged in criminal gang activity, he later expressed his opinion in response to a properly worded hypothetical question. Moreover, other evidence showed Aguilar knew of Townsend Street gang members' criminal habits. "[J]ust as a jury may rely on evidence about a defendant's personal conduct, as well as expert testimony about gang culture and habits, to make findings concerning a defendant's active participation in a gang or a pattern of gang activity, it may also rely on the same evidence to infer a defendant's knowledge of those activities." (People v. Carr (2010) 190 Cal.App.4th 475, 488-489, fn. omitted.)
Elms testified the Townsend gang's primary activities included narcotic sales and concealed firearm possession, offenses its members regularly and consistently committed. The prosecutor introduced certified court records proving four prior felony convictions against Townsend Street gang members. And Elms explained that when a gang member commits a crime, word of the offense spreads through the gang and the community, elevating the member's status. Accordingly, gang members learn of each other's offenses and have an incentive to speak of their own offenses. Elms also explained that the more violent the crime, the more respect a gang member gains. Aguilar committed the attempted murder with Santana, a known Townsend member, and the jury reasonably may infer a defendant's knowledge of the gang's criminal activities from his participation with other gang members in the current offense and other crimes. (People v. Harbert (2009) 170 Cal.App.4th 42, 55 [knowledge may be proven by circumstantial evidence].) Consequently, any Killebrew error was harmless. C. The Jail Recordings
Aguilar asserts the trial court erred by admitting portions of tape-recorded jailhouse telephone conversations. Aguilar contends the court should have excluded the recordings because they are hearsay, unintelligible, irrelevant, and more prejudicial than probative. The court did not err.
Before trial, the prosecution sought a ruling admitting into evidence portions of recorded phone conversations Aguilar had made from jail to his girlfriend, Jackie, and someone named Gilbert. The prosecution sought to admit the phone calls under Evidence Code sections 1220, admission of a party, and 1221, adoptive admission. Defense counsel objected on grounds the conversations were hearsay, cryptic, prejudicial, and she would be unable to cross-examine Gilbert, who was not going to testify. The trial court overruled defense counsel's objections and admitted redacted versions of three of the phone conversations. Defendant reasserts his objections on appeal, contending the court erred in rejecting his claims.
"[A]ll relevant evidence is admissible." (Evid. Code, § 351). Evidence is relevant if it has a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) The trial court "has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence." (People v. Scheid (1997) 16 Cal.4th 1, 14.) We review challenges to the trial court's evidentiary rulings under the deferential abuse of discretion standard. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.) The trial court abuses its discretion "'only . . . where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered.' [Citation.]" (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 640.)
Generally, "if a party to a proceeding has made an out-of-court statement that is relevant and not excludable under Evidence Code section 352, the statement is admissible against that party declarant." (People v. Castille (2005) 129 Cal.App.4th 863, 875-876; Evid. Code, § 1220.) "Evidence Code section 1220 covers all statements of a party, whether or not they might be characterized as admissions [Citations.]" (Castille, supra, 129 Cal.App.4th at p. 876.) Further, Evidence Code section 1221 provides, "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." A statement is admissible as an adoptive admission if sufficient evidence shows the defendant heard and understood the statement and that it would call for a response, and by words or conduct adopted the statement as true. (People v. Davis (2005) 36 Cal.4th 510, 535.)
Aguilar's statements to Jackie and Gilbert on the redacted versions of the jailhouse telephone conversations were highly relevant and probative. For example, in one of the telephone calls, Aguilar told Jackie to tell "Machito" where his "other baby is at." Elms testified that when used by gang members, the term "baby" can refer to a firearm. Possession of a firearm was relevant and highly probative to Aguilar's charges of attempted murder and possession of a firearm by a felon. In another telephone call, Aguilar expressed concern about somebody "snitching" and then asked Jackie if she remembered, "Cookie," adding, "She's the only one, fool." Aguilar then instructed Jackie to "Do [him] a big favor" and to "just go look for her and kick it with her. . . . Just go chill with her fool and blaze it, you know. . . . She's the only one babe." Elms testified that gang subculture prohibits cooperation with law enforcement, and if anyone cooperates with police, the gang may retaliate with violence, including murder. Consequently, the recording was probative and relevant because it provided a possible explanation to the jury why Maria V. recanted at trial.
Aguilar argues admitting the recording and transcripts was unduly prejudicial, and the trial court therefore should have excluded them under Evidence Code 352. That section provides that the court "in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence is substantially more prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Waidla (2000) 22 Cal.4th 690, 724.)
Aguilar argues the passages were confusing, cryptic, and often incomplete, and therefore tended to promote speculation regarding Aguilar's guilt. But "prejudicial" is not synonymous with "damaging." (People v. Bolin (1998) 18 Cal.4th 297, 320; see People v. Gionis (1995) 9 Cal.4th 1196, 1214 ["prejudice" means evidence that uniquely tends to evoke an emotional bias against the defendant].) The trial court reasonably could determine the probative value of the recordings outweighed any possible prejudicial effect. And it was properly within the jury's exclusive province to weigh the evidentiary value of the recordings. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330; see People v. Bean (1988) 46 Cal.3d 919, 932-933 [fact that circumstances can be reconciled with a contrary finding does not warrant reversal of judgment].)
Aguilar contends the jailhouse conversations were prejudicial because they were laced with profanity, expletives, and racial epithets that had no purpose but to portray all of the speakers in a negative light. However, the California Supreme Court has recognized that, "[w]hile offensive, the use of such language by a defendant is regrettably not so unusual as to inevitably bias the jury against the defendant." (People v. Quartermain (1997) 16 Cal.4th 600, 628; see also People v. Edelbacher (1989) 47 Cal.3d 983, 1009 ["Jurors today are not likely to be shocked by offensive language."]; People v. Hines (1997) 15 Cal.4th 997, 1044-1045 [any prejudicial effect arising from the jury listening to profanity-laden remarks on the tape did not outweigh the conversation's probative value].)
Aguilar also asserts many passages in the telephone conversations were unintelligible. Aguilar bases his assertions on the transcripts use of asterisks to denote unintelligible portions of the conversations. However, "[t]o be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enough is intelligible to be relevant without creating an inference of speculation or unfairness." (People v. Demery (1980) 104 Cal.App.3d 548, 559; see People v. Von Villas (1992) 11 Cal.App.4th 175, 225.) Thus, "a partially unintelligible tape is admissible unless the audible portions of the tape are so incomplete the tape's relevance is destroyed." (People v. Polk (1996) 47 Cal.App.4th 944, 952-953.)
Although neither Gilbert nor Jackie testified to fill in the gaps of the unintelligible portions of the telephone conversations, the telephone calls contained more audible portions than unintelligible segments and the unintelligible portions did not render the audible portions incoherent. Further, the audible portions related to matters clearly relevant and probative to the issues in the case. Reviewing the record, we find the limited unintelligible portions of the telephone calls did not render the audible portions unduly prejudicial or likely to generate speculative inferences or unfairness because the unintelligible portions did not obfuscate the overall meaning. (People v. Phillips (1985) 41 Cal.3d 29, 78 [letters held admissible because the letter's meaning was not affected by the unintelligible portions]; People v. Finch (1963) 216 Cal.App.2d 444, 454 [recordings admissible absent a showing that any statement was a misstatement or that material statements were missing].) We therefore find no abuse of discretion in the trial court's decision to admit the recordings and transcripts. D. Cumulative Error
Aguilar's cumulative error claim also fails because any Killebrew error was minor and outweighed by the expert's opinion on a proper hypothetical and, apart from Sanchez error if Aguilar did not forfeit it, the trial was devoid of multiple errors to cumulate. There was no "synergistic" due process violation requiring reversal based on pervasive or cumulative error. (People v. Hill (1988) 17 Cal.4th 800, 847.)
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.