Opinion
NOT TO BE PUBLISHED
Super. Ct. No. LF005462B
HULL, J.Defendant Mario Humberto Angulo was convicted by a jury of first degree murder (Pen. Code, § 187, subd. (a)), shooting from a motor vehicle (id., § 12034, subd. (d)), active participation in a criminal street gang (id., § 186.22, subd. (a)), and possession of a firearm by a prohibited person (id., 12021, subd. (e)). The jury also found that, in connection with the first two offenses, a principal discharged a firearm causing great bodily injury (id., 12022.53, subds. (d)&(e)) and the crimes were committed for the benefit of a criminal street gang (id., 186.22, subd. (b)(1)). Finally, on the murder offense, the jury found defendant personally discharged a firearm (id., § 12022.53, subd. (c)).
Defendant was sentenced to 25 years to life for the murder plus a consecutive term of 25 years to life on the enhancement for discharge of a firearm causing great bodily injury. He also received concurrent middle terms of two years each for the other three offenses.
Defendant appeals, contending his Confrontation Clause rights were violated when the trial court admitted testimonial hearsay on the issue of whether the crimes were committed to benefit a criminal street gang. We find no prejudicial error and affirm the judgment.
Facts and Proceedings
Around 5:00 p.m. on October 24, 2000, three members of the Sureno street gang--Ruben Santana, Jesus Marquez and Sabrina Snider--were walking south on Central Street in Lodi toward the home of Josue Ramirez, another Sureno. Santana was armed with a handgun. The three Surenos were in an area claimed by their rival, the Norteno street gang.
A white Chevrolet Cavalier passed the Surenos heading north on Central Street. Inside were four Norteno gang members--John Adams, Johnny Moreno, Armando Soria, and Jose Lopez. Moreno told the others in the car that Santana had flashed his gun at him earlier in the day.
Some words were exchanged, and the Cavalier pulled over to the side of the road near the corner of Central and Flora. As the people in the Cavalier emerged from the car to confront the Surenos, Santana walked to the center of the street, pulled out his gun, and fired two or more shots in the direction of the car.
The Nortenos jumped back in the Cavalier and drove off, while the Surenos ran on to Josue Ramirez’s house. The Nortenos traveled around and ended up on South Washington Street, where they stopped to speak with another friend. Another car, occupied by two other acquaintances, Esteban Ramirez and Asad Miqbel, stopped in the middle of the street near the Cavalier.
Meanwhile, Santana left Josue Ramirez’s home and jumped into a green Mazda driven by defendant, who had just arrived at Ramirez’s house. Santana told defendant, “some fool just shot at me,” and said he was “going to go hit this fool.”
While the group on Washington Street were talking among themselves, someone yelled, “be careful,” and they saw defendant’s green car approaching fast. Defendant stopped the car in front of the group and Santana reached across him and began shooting at them with a .38 caliber handgun. Defendant pulled out a .22 caliber handgun he kept in the car and began shooting as well. Moreno was struck and killed by a bullet from one of the guns.
Santana was arrested the next day. The police searched his home and found, among other things, a .38 caliber handgun, a blue bandanna, and a newspaper with a front-page story about the shooting.
The next day, police located a green Mazda at an apartment complex where defendant’s girlfriend, Veronica Estrada, lived. Estrada was later stopped while driving the vehicle and gave police consent to search the car and her apartment. In the apartment, they found .22-caliber bullets, a newspaper article entitled, “Man Killed in Apparent Gang-related Attack,” a PG&E bill with the name and address of Moses Sotello, a blue binder with Sureno gang writings and defendant’s and Estrada’s names on it, photos of defendant, and two letters written to defendant by Daniel Ledesma, a Sureno, from a juvenile detention facility.
Approximately one week after the shooting, defendant fled to Mexico. On November 22, 2000, Estrada and her child boarded a bus in Stockton and rode it to Calexico on the California-Mexico boarder. The next day, an FBI agent saw them climb into a vehicle driven by defendant’s father. He detained them and asked about defendant’s whereabouts. They refused to cooperate.
More than four years later, on January 25, 2005, police learned that defendant was back in the Lodi area after an absence of five years. Two days later, defendant was arrested. In a videotaped interview, defendant claimed that what happened the night of the shooting was all a big mistake and that it was not gang related, at least as to him. He claimed that, at the time, he was no longer a gang member, although he admitted he was dealing crank. According to defendant, when he came by Ramirez’s house, Santana jumped into the car and asked for a ride so that he could “go hit this fool.” Defendant said he eventually realized Santana was armed. Defendant admitted he too was armed with a .22 handgun that he kept between the seats in his car. Defendant said that when they got to Washington Street, they saw about 10 guys with sticks who appeared to be playing a game. He heard Santana say, “look there he is.” Defendant claimed he told Santana not to do anything, but Santana pulled his gun out and fired twice into the group. Defendant admitted grabbing his own gun and firing once to keep the people away from his car. Defendant claimed he was sure his shot did not hit Moreno.
Defendant told the police he did not turn himself in because he feared his mother would have a heart attack. Defendant admitted joining the Sureno gang when he was 12 and getting gang tattoos. He said he spent two years in jail for a shooting shortly after joining the gang and quit the gang after he got out of jail.
At trial, two police officers provided expert testimony that defendant remained a Sureno gang member in October 2000 and that the drive-by shooting was gang-related.
Discussion
On count one, the murder charge, the jury found defendant violated Penal Code section 186.22, subdivision (b)(1), which imposes additional punishment where the crime was 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.” (Pen. Code, § 186.22, subd. (b)(1).) The jury also convicted defendant of Penal Code section 186.22, subdivision (a), which reads: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”
In support of the foregoing charges, the prosecution presented the expert testimony of two police officers, Sergeant Fernando Martinez and Officer Sierra Brucia. Martinez opined that defendant was an active Sureno gang member at the time of the offenses based on a number of factors, including that Ruben Santana identified defendant as a Sureno during a police interrogation. Brucia based her opinion that defendant was a Sureno gang member, in part, on Santana’s interrogation statement and on a similar statement by Moses Sotello at the preliminary hearing in Santana’s criminal prosecution.
Defendant contends introduction of the hearsay statements of Santana and Sotello through expert testimony violated his Sixth Amendment right of confrontation. Defendant argues he had no opportunity to cross-examine either Santana or Sotello and the prosecution made no showing that either man was unavailable for trial.
Under the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant has a right “to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.; Pointer v. Texas (1965) 380 U.S. 400 [13 L.Ed.2d 923].) “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” (Maryland v. Craig (1990) 497 U.S. 836, 845 [111 L.Ed.2d 666, 678].)
In Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford), the United States Supreme Court “repudiated [its] prior ruling in Ohio v. Roberts (1980) 448 U.S. 56, under which an unavailable witness’s statements were admissible against a criminal defendant if the statement bore ‘adequate “indicia of reliability.”’ [Citation.] . . . Crawford held that out-of-court statements by a witness that are testimonial are barred under the Sixth Amendment’s confrontation clause unless the witness is shown to be unavailable and the defendant has had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the trial court.” (People v. Monterroso (2004) 34 Cal.4th 743, 763.)
Although Crawford did not define the term “testimonial,” it did give examples, such as grand jury testimony, prior trial testimony, preliminary hearing testimony, and statements taken by police officers during an interrogation. (Crawford, supra, 541 U.S. at p. 68 [158 L.Ed.2d at p. 203].) In this matter, the statements of both Santana and Sotello qualify as testimonial statements. The People do not contend otherwise.
It is well established that police officers testifying as gang experts, like expert witnesses generally, may base their opinions on hearsay. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; People v. Gardeley (1996) 14 Cal.4th 605, 620; People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.) Experts may give their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions, including hearsay statements. (People v. Gardeley, supra, 14 Cal.4th at pp. 618-619; Evid. Code, § 801, subd. (b) [expert opinion may be based upon matter “whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates”].)
In People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas), the Court of Appeal addressed the issue raised by defendant here and found no Crawford violation. In that case, the defendant was convicted of receiving stolen property and being an active participant in a criminal street gang. The evidence against him included expert testimony that he was a gang member and the underlying crime was committed for the benefit of the gang. As here, the expert testified that other gang members identified the defendant as a fellow gang member.
In finding no Crawford violation, the court explained: “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion. Crawford itself states that the confrontation clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’” (Thomas, supra, 130 Cal.App.4th at p. 1210; see also People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 [citing Thomas and concluding that “[h]earsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned”]; People v. Cooper (2007) 148 Cal.App.4th 731, 747 [“[I]f hearsay is admitted for a non hearsay purpose, it does not turn upon the credibility of the hearsay declarant, making cross-examination of that person less important. The hearsay relied upon by an expert in forming his or her opinion is ‘examined to assess the weight of the expert’s opinion,’ not the validity of their contents”].)
Defendant contends Thomas is inapplicable here because, unlike that case, the evidence of statements made by Santana and Sotello identifying him as a gang member was admitted for the truth of the matter asserted. According to defendant: “[T]he trial court did not instruct the jury not to consider the truthfulness of the hearsay statements in question. On the contrary, the trial court led the jury to believe that it was allowed to do so.”
Defendant relies on two instructions given by the court, CALCRIM No. 1403 and CALCRIM No. 335. As given here, CALCRIM No. 1403 read: “You may consider evidence of gang activity only for the limited purpose of deciding whether:
“One, the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes in Counts One through Three, enhancements and special circumstances charged in this case;
“Two, the defendant had the motive to commit the crimes charged in this case;
“Three, the defendant himself actually believed in the need to defend himself or others;
“Four, the defendant acted as a result of a sudden quarrel or acted in the heat of passion;
“And five, the identity of the person or persons who committed the crimes charged in this case.
“You may consider this evidence when you evaluate the believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his opinion.
“You may not consider this evidence for any other purpose. You may not conclude from the evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”
As given here, CALCRIM No. 335 read: “[I]f the crimes alleged [in] Counts One through Four were committed, then Ruben Santana was an accomplice to those crimes.
“We heard snippets of out-of-court statements. Mr. Santana didn’t testify. They both told you he didn’t testify. But there was [sic] snippets of an out-of-court statement.
“You may not convict the defendant of any of the above Counts based on the out-of-court statement [of] an accomplish alone.
“You may use the out-of-court statement of an accomplice to convict the defendant only if:
“One, the accomplice’s out-of-court statement is supported by other evidence which you believe;
“Two, that supporting evidence is independent of the accomplices [sic] out-of-court statement;
“And three, that supporting evidence tends to connect the defendant to the commission of the crimes alleged.
“Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crimes, and it does not need to support every fact mentioned by the accomplice in the statement or about which the witness testified.
“On the other hand, it is not enough if the supporting evidence merely shows that the crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant with the commission of the crimes.
“Any out-of-court statement of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement the weight you find it deserves after examining it with care and caution and in light of all the other evidence.” (Italics added.)
The italicized portion of the foregoing was added by the court and is not part of the CALCRIM instruction.
Defendant also argues CALCRIM No. 3.01 equated Santana’s out-of-court statement with trial testimony. As given here, it read: “Except for the out-of-court statements of Ruben Santana which require corroboration, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.”
We need not decide if the foregoing instructions may have misled the jury into considering the out-of-court statements of Santana and Sotello for the truth of the matter asserted. Assuming they did, and that defendant’s Confrontation Clause rights were thereby violated, we find no prejudicial error from admission of the hearsay evidence.
We evaluate Crawford error under the Chapman standard of prejudice (People v. Harrison (2005) 35 Cal.4th 208, 239), which requires that we reverse the conviction unless we find beyond a reasonable doubt that the jury verdict would have been the same absent the error. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
In the present matter, there was overwhelming evidence that defendant remained an active participant in the Sureno criminal street gang and that the drive-by shooting was committed for the benefit of that gang. Little would have been added by the jury considering for the truth the statements of Santana and Sotello.
Defendant himself admitted that he joined the Sureno gang when he was 12 years old and pleaded guilty to a gang-related shooting soon thereafter. Defendant admitted that, on the day of the Moreno shooting, he arrived at the home of Josue Ramirez’s, a Sureno member, and that Santana, another Sureno member, jumped into his car in order to seek retaliation against a Norteno who had disrespected him. According to defendant, Santana said “some fool just shot at me” and “I’m going to go hit this fool.” Defendant admitted driving around looking for Moreno for the express purpose of retaliation, although he claimed he did not realize the retaliation would involve firearms.
Although defendant claimed he told Santana he did not want to do anything stupid, other witnesses at the scene said the green car approached fast and screeched to a stop before shots were fired, suggesting defendant was a willing participant in a sneak attack where the Surenos were vastly outnumbered and, therefore, would have relied on superior firepower. Inexplicably, despite defendant’s claim that he did not want to do anything stupid, he admitted pulling his own gun and shooting into the crowd along with Santana. Defendant claimed he was afraid of the crowd close to his car. However, there was no evidence these people had any weapons.
Defendant claimed he was no longer in the gang at the time of the shooting. However, it was undisputed that he continued to associate with known gang members, such as Santana, Sotello and Ramirez. He also admitted giving handguns to Santana.
Sierra Brucia testified as a criminal street gang expert that one who quits a gang would not normally be permitted to continue associating with gang members. She also testified that the fact defendant gave a handgun to Santana is indicative of gang membership, because gang members often share weapons. Both Brucia and Fernando Martinez testified that the fact Santana sought defendant’s help to retaliate against Moreno is indicative of defendant’s gang membership, because gang members do not normally commit crimes with nongang members.
Both gang experts identified a number of other factors leading them to conclude defendant remained a Sureno gang member at the time of the shooting. A newspaper story of the shooting was found in Estrada’s apartment, where there were indicia that defendant resided as well. Such stories are typically kept as a trophy by gang members. Brucia cited defendant’s gang tattoos, his prior gang-related conviction, and his self-admission of gang membership to jail personnel. Other items found in Estrada’s apartment also suggested defendant’s continued gang membership, including a roster of gang members, gang graffiti, and letters to defendant from a gang member referring to defendant as “Carnal,” which means homey or brother. Defendant also admitted leaving the handgun he used in the shooting at the home of Sotello, another gang member, before he fled to Mexico. Brucia was also persuaded by the fact that defendant was dealing drugs and carried a gun at the time of the shooting. Finally, according to Brucia, a major factor suggesting defendant remained an active Sureno gang member was his participation in this drive-by shooting.
In our view, the foregoing evidence overwhelmingly established that defendant remained an active member in the Sureno street gang and that the drive-by shooting was for the benefit of that gang. We conclude, beyond a reasonable doubt, the jury verdicts would have been the same if the out-of-court statements by Santana and Sotello had been excluded.
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P.J., SIMS, J.