Opinion
F072305
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL CHRISTOPHER CARBAJAL, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF158577B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Daniel Christopher Carbajal challenges his convictions for felony obstructing or resisting an officer by use of force, carrying a loaded firearm in public without being the registered owner, unlawful possession of a firearm by a felon, and unlawful possession of ammunition by a felon. He asks for independent review of the trial court's Pitchess inquiry. He also contends his convictions must be reversed because the trial court erred in denying his motions for mistrial. Finally, citing People v. Sanchez (2016) 63 Cal.4th 665, he argues reversal is mandated because of the prejudicial effect of inadmissible testimony from the People's gang expert. Finding no reversible error, we affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTS AND PROCEDURAL HISTORY
At approximately 2:00 p.m. on December 13, 2014, Bakersfield Police Officer Jaime Orozco parked his patrol car behind a four-door Nissan Altima (or Maxima) stopped in front of a house on Clyde Street in Bakersfield. The Altima's engine was running and its brake lights were on. A man got out of the driver's seat of the Altima and walked towards the residence. Orozco approached the driver, patted him down for weapons, and had him sit on the sidewalk along the curb. The driver was later identified as George Mendoza. As Orozco was talking to Mendoza, Officers Ramon Chavez and Andrew Nuno arrived as backups.
Officer Nuno approached the passenger side of the Altima. A person sitting in the front passenger seat, later identified as Carbajal, suddenly opened the car door. The door hit Nuno, knocking him to the ground. Carbajal jumped out of the car and began running northbound on Clyde Street. Nuno got up and gave chase, in the street. He caught up with Carbajal and wrapped his arms around Carbajal's waist. Carbajal briefly broke free, ran ahead, reached into his waistband, pulled out a black Ruger pistol, and tossed it into the driveway of a nearby residence. Nuno managed to tackle Carbajal to the ground, facedown, and get on his back. Nuno was trying to control Carbajal's hands but Carbajal continued to resist, trying to rise.
Officer Chavez, who had approached to assist Nuno, saw Carbajal reach under his waistband a second time. Chavez struck Carbajal with his baton on the upper left arm, five times. Carbajal stopped struggling at that point and Nuno handcuffed him. Carbajal was taken into custody.
The Ruger pistol Carbajal had thrown was found in the driveway of another house on Clyde Street. There was no bullet in the chamber but the detachable magazine contained seven live nine-millimeter rounds. The gun was operable. Its serial number was obliterated.
A third person, Emmanuel Lopez-Reyes, was in the backseat of the Altima during the incident.
Carbajal was criminally charged and the matter proceeded to jury trial. Four counts were submitted to the jury for verdict: obstructing or resisting an officer by use of force (Officer Nuno) (count 4, Pen. Code, § 69); carrying a loaded firearm in public without being the registered owner (count 5, § 25850, subd. (c)(6)); unlawful possession of a firearm by a felon (count 7, § 29800, subd. (a)(1)); and unlawful possession of ammunition by a felon (count 8, § 30305, subd. (a)). The jury was also tasked with determining whether certain enhancements were true, specifically a firearm enhancement attached to count 4 (§ 12022, subd. (a)(1)) and gang enhancements attached to counts 5, 7, and 8 (§ 186.22, subd. (b)(1)).
Subsequent statutory references are to the Penal Code, unless otherwise specified.
Section 12022, subdivision (a)(1) provides for an additional one-year term in prison for a person armed with a firearm in the commission of a felony. Section 186.22, subdivision (b)(1) provides for an additional term of imprisonment if the underlying felony was committed for benefit of, at direction of, or in association with a criminal street gang, with specific intent to promote criminal gang activity.
At trial, the parties stipulated that Carbajal had a prior felony conviction. Furthermore, defense counsel, in his closing argument, conceded that Carbajal was guilty of unlawful possession of a firearm by a felon (count 7) and unlawful possession of ammunition by a felon (count 8). As to the charge of resisting an officer under section 69 (count 4), counsel argued that Carbajal was not guilty of the charged felony offense but conceded he was guilty of the lesser included offense of misdemeanor resisting an officer under section 148, subdivision (a)(1). Counsel fully contested the remaining charge of carrying a loaded firearm in public without being its registered owner (count 5), as well as the firearm enhancement attached to count 4 and the gang enhancements attached to counts 5, 7, and 8.
The jury found Carbajal guilty on all four counts; the jury also found true the firearm enhancement attached to count 4. However, the jury hung on the gang enhancements attached to counts 5, 7, and 8, i.e., all the gang enhancements at issue in the case. The court declared a mistrial on the gang enhancements and later dismissed them on the prosecutor's motion.
In a bifurcated proceeding, the court found true separate sentence enhancement allegations that Carbajal had suffered a prior strike conviction and served a prior prison term.
Carbajal was sentenced to an aggregate term of eight years in prison: the upper term of three years on count 4, doubled to six years on account of his prior strike conviction; an additional one-year for the firearm enhancement attached to count 4; and a further one-year term for a prior prison term sentence enhancement. His sentences on the remaining counts of conviction were stayed pursuant to section 654.
DISCUSSION
I. Trial Court's Pitchess Inquiry
Before trial, Carbajal filed a Pitchess motion, seeking discovery of records of certain types of citizen complaints and/or disciplinary actions pertaining to Officers Nuno and Chavez. The trial court ruled: "I'll grant in camera hearing as to Officer Andrew Nuno ... and Officer R. Chavez, for dishonesty, false arrest, illegal arrest, or excessive force." The court ordered the Bakersfield Police Department to submit all records, as to both officers, that would potentially contain such information. The trial court then conducted an in camera hearing pertaining to the records provided by the police department.
Pitchess v. Superior Court, supra, 11 Cal.3d 531. The statutory scheme for such discovery is contained in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7, and 832.8.
The custodian of records for the internal affairs division of the police department testified under oath at the hearing, regarding the completeness of the records provided; the trial court also questioned the custodian in this respect. The court then reviewed the records (a copy of the records is included in the record on appeal). Ultimately, the court ordered the prosecution to turn over to the defense specified records pertaining to Officer Chavez.
Carbajal asks us to independently review the sealed transcript of the in camera hearing, as well as the records produced at that hearing, to assess the propriety of the proceedings and the court's ultimate decision on discoverability of records. The People have no objection to Carbajal's request for independent review.
People v. Mooc (2001) 26 Cal.4th 1216, 1232 (Mooc), outlines the procedure for conducting a Pitchess inquiry. The custodian of records must produce "all 'potentially relevant'" materials to the court, which then should make a record of what it reviewed:
"Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent." (Mooc, supra, 26 Cal.4th at p. 1229.)
A trial court's determinations pursuant to a Pitchess inquiry are reviewed for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.) We have independently reviewed the record of the trial court's Pitchess inquiry, including the transcript of the in camera hearing and the records submitted to the trial court. The trial court properly conducted the in camera hearing. Furthermore, we detect no abuse of discretion in the court's decision to order discovery only of particular records pertaining to Officer Chavez.
II. Defense Motions for Mistrial
A. Mistrial Motion Based on Officer Nuno's Testimony
At trial, Officer Nuno testified that the officers approached the Altima in the course of investigating a "possible robbery." Defense counsel made a motion for mistrial on grounds that the testimony violated an in limine ruling by the trial court. Carbajal now argues the trial court abused its discretion in denying the motion for mistrial, thereby violating his right to due process and requiring reversal of the judgment. We disagree.
1. Background
The prosecutor moved in limine to admit evidence of an uncharged robbery, which the police were investigating at the time officers contacted Carbajal and his companions outside the house on Clyde Street. Defense counsel filed a motion in limine to exclude the same evidence. Police were investigating a report that a minor was robbed at knifepoint and the robbery suspect had fled to the Altima parked outside that particular house on Clyde Street. The prosecutor sought to introduce this evidence "to explain why the police were present, to establish the lawfulness of the officers' conduct, to establish the reasonableness of the officers' actions, and as foundational evidence for the gang expert." Defense counsel countered that the prosecution wanted to use evidence of the robbery "so that they have a stronger case with regards to the gang allegations." Counsel stated: "I'd ask the Court to exclude any reference to the alleged robbery that occurred. [¶] ... I'd also ask that it be excluded with regards to the gang expert's testimony."
The court denied the prosecutor's motion to admit evidence of the uncharged robbery, including contextual facts, on grounds the evidence was "too prejudicial" under Evidence Code section 352. The court also noted that "[the prosecution's] expert cannot use the robbery in his opinion," as "[t]hat defeats the whole purpose of keeping out the prior robbery facts." In light of the court's ruling, the parties agreed to stipulate that the officers were acting lawfully when they initially attempted to contact the occupants of the car.
Officer Nuno was subsequently called as a prosecution witness. He testified that on December 13, 2014, he was dispatched to the area of Texas Street and Clyde Street. The prosecutor then asked him: "What did you do upon arriving at that location?" Nuno answered: "We were investigating a possible robbery." At that point, there was a break in the proceedings. The jury left the courtroom and the trial court noted that Nuno's testimony violated its in limine ruling. Defense counsel made a motion for mistrial. The court commented: "I'll be honest with [both counsel]. This one is right on the fence." Ultimately, the court denied the defense motion for mistrial but gave a curative instruction to the jury as follows:
"When we broke, [the prosecutor] was on direct exam of the officer, and ... directed [the officer] to [December 13, 2014], and asked him what he was doing at that location. He said he was there investigating a possible robbery. There's -- you will receive no information in this case that the defendant was involved in any type of a robbery. Okay? [¶] You are not to give that information any weight whatsoever. All right? [¶] Disregard it."
2. Analysis
"A trial court should grant a motion for mistrial 'only when "'a party's chances of receiving a fair trial have been irreparably damaged,'"'" such that an appropriate admonition or instruction to the jury would not suffice to cure the prejudice at issue. (People v. Avila (2006) 38 Cal.4th 491, 573 (Avila); People v. Harris (2013) 57 Cal.4th 804, 848.) "Although most cases [where a mistrial is requested] involve prosecutorial or juror misconduct as the basis for the motion, a witness's volunteered statement can also provide the basis for a finding of incurable prejudice." (People v. Harris (1994) 22 Cal.App.4th 1575, 1581; People v. Rhinehart (1973) 9 Cal.3d 139, 152 (Rhinehart) [witness's inadvertent answer, if error, was not sufficiently prejudicial to justify mistrial], overruled on other grounds by People v. Bolton (1979) 23 Cal.3d 208, 213.) "Whether in a given case the erroneous admission of such evidence warrants granting a mistrial or whether the error can be cured by striking the testimony and admonishing the jury rests in the sound discretion of the trial court." (People v. Harris, supra, 22 Cal.App.4th at p. 1581; People v. Harris, supra, 57 Cal.4th at p. 848 ["'"'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.'"'"]; Avila, supra, 38 Cal.4th at p. 573 [same].) On appeal, we review the denial of a motion for mistrial under the deferential abuse of discretion standard. (People v. McLain (1988) 46 Cal.3d 97, 113.)
We reject Carbajal's contention that the trial court's denial of the defense's mistrial motion was an abuse of discretion constituting reversible error. We recognize, as did the trial court, that Officer Nuno's testimony was improper, in that it violated the trial court's in limine ruling. We cannot conclude, however, that any ensuing harm was incurable, such that the trial court's determination that an admonition was appropriate constitutes an abuse of discretion. Nuno said the police were "investigating a possible robbery." His brief comment did not include any contextual details of the reported robbery or directly connect Carbajal, or even his companions, to the robbery; nor did Nuno imply that the robbery had actually occurred. Although the trial court's curative admonition might, as Carbajal suggests, have been worded differently, the court nonetheless clearly and emphatically instructed the jury to disregard Nuno's reference to a possible robbery. "We presume the jury followed the court's instructions." (See Avila, supra, 38 Cal.4th at p. 573.) Accordingly, we conclude the admonition minimized the potential for prejudice arising from Nuno's inadvertent comment. In turn, there was no violation of Carbajal's right to due process based on the court's denial of his mistrial motion. (See People v. Partida (2005) 37 Cal.4th 428, 439 ["[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair."].)
The cases Carbajal relies on are distinguishable because the improper references at issue in those cases were to the particular defendant's actual status as a parolee, ex-convict, ex-prisoner, or person charged with a crime.
We reject Carbajal's suggestion that the admonition was ineffective, or worse, reinforced the harm it was meant to correct. Carbajal contends the admonition highlighted the prohibited testimony because, rather than telling the jury Carbajal was not involved in a robbery (as the prosecutor had suggested), the court said the jury would receive no information that Carbajal was involved in a robbery. While the court did not craft an ideal admonition, the admonition adequately served its intended purpose.
The prosecutor evidently explained at a sidebar that he had instructed his witnesses not to refer to the robbery that was under investigation at the time. The trial court then questioned Officer Nuno. The court reasonably determined that although Nuno was instructed not to refer to the robbery investigation, he was a novice officer and was testifying for the first time in court, and had inadvertently mentioned the reported robbery. While the lack of bad faith does not neutralize the potential impact of improper testimony, some courts have noted it may properly be considered in determining whether an admonition can cure the error. (People v. Allen (1978) 77 Cal.App.3d 924, 934 ["A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith."]; but see People v. Stinson (1963) 214 Cal.App.2d 476, 481 ["Influence of the improper statement on the trial and conviction was the same, whether it was deliberate or accidental."].)
Here, there was overwhelming and undisputed evidence of Carbajal's guilt as to the counts of conviction as well as the firearm enhancement that was found to be true. The evidence was undisputed that when Nuno approached, Carbajal hit him with the car door and ran away. Nuno chased him and a struggle ensued during which Carbajal took a gun from his waistband and tossed it into the yard or driveway of a nearby house. The evidence was also undisputed that the gun was loaded and operable, and its serial number was obliterated. Furthermore, the parties stipulated that Carbajal was a felon.
Officer Orozco testified that he was talking to George Mendoza, the driver of the Altima, who had exited the car and walked up to a residence on Clyde Street. Although Orozco was focused on Mendoza, he saw Officers Nuno and Chavez approach the Altima, whereupon Carbajal jumped out of the front passenger seat and ran in a northbound direction. Orozco "turned" to "give chase" and saw Carbajal remove a black object from his person and toss it into the front yard of a house on the east side of the street; Orozco later went over to that yard and saw that the black object was a gun.
Next, Officer Nuno testified that he and Officer Chavez arrived to assist Orozco. Nuno explained: "As I approached the vehicle, Mr. Carbajal exited the vehicle, pushing the door, hitting me, and causing me to fall to my knees." Nuno said that Carbajal ran northbound and Nuno gave chase. Nuno caught up to Carbajal and grabbed him around the waist but Carbajal pushed Nuno's hands down; Nuno lost his grip and fell to his knees. As Nuno grabbed Carbajal's shirt, Carbajal "reached into his waistband and threw [what] at that time ... appeared to be a black object, which turned out to be a firearm, into the yard of [a house on] Clyde Street." Nuno then tackled Carbajal and the struggle continued until Officer Chavez used his baton.
Finally, Officer Chavez testified that he saw Nuno walk over to the Altima. He explained: "The passenger door ... was opening and ... it looked like Officer Nuno was trying to hold the door." "[I]t looked like he lost his balance and fell to one knee." Chavez saw Carbajal run and Nuno catch up to him and tackle him; Carbajal was trying to push Nuno away. Chavez saw Carbajal's hand "go in the air" and an object fly into the driveway of a house; the object looked like a gun at the time and turned out to be one. Fearing that Carbajal might have another weapon, Chavez ran over to assist Nuno, who was still locked in a struggle with Carbajal. When Chavez saw Carbajal put his hand into his waistband for a second time, he hit Carbajal on his upper left arm with his baton.
In light of this record, defense counsel conceded guilt on two of the charged counts (felon in possession of a firearm and felon in possession of ammunition) and acknowledged, as to the charge of felony resisting an officer, that Carbajal was guilty of a lesser included misdemeanor offense.
We conclude the erroneous admission of Nuno's improper testimony did not result in incurable prejudice. Accordingly, the trial court's denial of the mistrial motion was not an abuse of discretion. (See Rhinehart, supra, 9 Cal.3d 139, 152 [trial court properly denied mistrial motion as the improper testimony was "nonprejudicial" because "the case against defendant was very strong"]; see also People v. Harris, supra, 22 Cal.App.4th at p. 1581 [denial of mistrial motion is harmless when evidence of defendant's guilt is "overwhelming and undisputed"]; People v. Stinson, supra, 214 Cal.App.2d at pp. 482-483 [same].)
B. Mistrial Motion Based on Testimony of People's Gang Expert
Defense counsel renewed his mistrial motion during the testimony of Officer Manuel Ornelas, the People's gang expert. The trial court once again denied the motion. Carbajal now argues the trial court abused its discretion in doing so. We disagree.
Ornelas's testimony was relevant in light of the gang allegations attached to several charged counts. Ornelas opined that Carbajal was an active member of the Varrio Bakers criminal street gang. For purposes of establishing that Varrio Bakers was an actual criminal street gang, Ornelas described its primary activities. Specifically, he said that the primary activities of Varrio Bakers included murder, assaults, robberies, carjackings, narcotics sales, burglaries, auto thefts, and possession of firearms and illegal weapons. Ornelas also addressed the importance of guns for gangs and gang members, noting that "[f]irearms are readily available to all gang members." Ornelas explained that gangs use guns for protection, for committing offenses against rival gang members, and for "other types of crimes, like robberies and carjackings." He added that gangs rely on guns as a useful intimidation tool in committing, for example, robberies, as the fear engendered by a gun makes it easier to complete the crime. Ornelas also said that when one gang member possesses a gun, other gang members in his company would be aware of, and have access to, the gun, because "[i]f a rival appears, [all the gang members] have to know where [the gun] is, and they all have to be prepared to use it."
Defense counsel renewed his motion for mistrial based on Ornelas's testimony, specifically Ornelas's testimony to the effect that gangs use guns to commit robberies. Counsel argued that when viewed in relation to Officer Nuno's earlier testimony to the effect that the police were on scene to investigate a robbery, Ornelas's testimony "reinforced" the notion that Carbajal and his companions possessed a firearm for purposes of committing a robbery.
The prosecutor disagreed. He argued:
"When Officer Ornelas was providing different examples of how a firearm could be beneficial to a criminal street gang, he gave a number of different examples. One of them was a robbery. I'm pretty certain it didn't even cross his mind to make the connection between the current incident being a robbery and his example that he provided as to how a firearm would be useful to a gang.
"I will note that one of the primary activities of the Varrio Bakers is robbery. I don't think it's far outside of a reasonable inference to the jury to assume that a robbery could possibly involve a firearm. I don't - I don't think it was the intention of the officer to try to add any fuel to the misstep of the earlier officer."
The trial court denied the defense motion for mistrial. The court explained that while Ornelas's testimony "raise[d] an eyebrow," it did not rise to the level of requiring a mistrial. The court further noted:
"And I'm not inclined to explain to the jury not to give any weight to Ornelas's testimony about the use of a ... gun in a robbery because I don't
want to point that out to the jury again or to keep trying to tell them not to use the ... term robbery.
"We ... told the jury not to give it any weight the first time. Here the officer is just explaining what other uses the gun can be used for overall."
We conclude the trial court's ruling was not an abuse of discretion. The substance of the court's in limine ruling with regard to expert testimony was that the expert could not rely on the instant robbery investigation to support an opinion that Varrio Bakers was a criminal street gang or that Carbajal committed the charged offenses for the benefit of, or in association with, the Varrio Bakers. Ornelas made no mention of the instant robbery investigation. Rather, he testified generally that robbery was one of the primary activities of Varrio Bakers, and, subsequently, he also explained that gangs use guns for various purposes, including for committing crimes such as robbery. Ornelas's testimony did not violate the trial court's in limine ruling. Ornelas's testimony was also not unduly prejudicial, in light of the charges and the record as a whole. Furthermore, the trial court properly declined to admonish the jury to disregard the disputed testimony, as doing so would have connected Ornelas's general references to robberies committed by gangs to Officer Nuno's inadvertent reference to the specific robbery investigation underlying the instant case.
In sum, we detect no abuse of discretion, nor any due process violation, based on the court's denial of the defense's mistrial motions.
III. Inadmissible Expert Testimony on Gang Membership and Activity
This matter went to trial on counts 4 through 8. The offenses encompassed in these counts were: obstructing or resisting an officer by force (count 4); carrying a loaded firearm in public without being its registered owner (count 5); carrying a concealed firearm in a vehicle without being the gun's registered owner (count 6); possession of a firearm by a convicted felon (count 7); and possession of ammunition by a convicted felon (count 8). Gang enhancements under section 186.22, subdivision (b)(1), were attached to counts 5, 6, 7, and 8.
At the end of the prosecution's case, the trial court granted Carbajal's motion for direct acquittal on count 6 (carrying a concealed firearm in a vehicle without being the gun's registered owner). Thus, the case was submitted to the jury on counts 4, 5, 7, and 8, with gang allegations attached to counts 5, 7, and 8. The jury found Carbajal guilty on the four substantive counts but deadlocked on all the gang enhancements. The court declared a mistrial as to the gang allegations, all of which subsequently were dismissed on the People's motion.
In addition, a firearm allegation was attached to count 4.
Citing People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), Carbajal contends that much of the testimony of Officer Ornelas, the prosecution's gang expert, encompassed case-specific hearsay and/or testimonial hearsay, in violation of state evidentiary law and the Sixth Amendment's confrontation clause, respectively. Although the jury did not find true any of the gang enhancements, Carbajal complains that the prejudice arising from the inadmissible portion of Ornelas's testimony requires reversal of all of his convictions. We reject Carbajal's contention that the introduction of inadmissible gang evidence requires reversal in this case.
We have reached the merits of Carbajal's claim and reject the People's argument that Carbajal forfeited this argument for failure to object, at trial, on the basis of hearsay and the confrontation clause. "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237; accord, People v. Black (2007) 41 Cal.4th 799, 810, overruled on other grounds by Cunningham v. California (2007) 549 U.S. 270.) Sanchez represented a significant change in the law and, under the circumstances, we find the People's forfeiture argument unpersuasive. (People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7, review granted Mar. 22, 2017, S239442.)
1. Applicable Law
Sanchez held that "[w]hen 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." (Sanchez, supra, 63 Cal.4th at p. 686.) Further, "[i]f the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a [Sixth Amendment] 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.) Sanchez, however, clarified: "Gang experts, like all others, 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." (Sanchez, supra, 63 Cal.4th at p. 685.) In addition, "Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which his opinion rests," although merely telling the jury what types of information the expert relied on "may do less to bolster the weight of the [expert's] opinion" than would properly admitted case-specific facts. (Id. at p. 686.)
"Case-specific" statements are simply "those relating to the particular events and participants alleged to have been involved in the case being tried" (Sanchez, supra, 63 Cal.4th at p. 677), and thus include all statements related to Carbajal, regardless of whether or not they relate to the current offenses.
"Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Sanchez, supra, 63 Cal.4th at p. 689; see Crawford v. Washington (2004) 541 U.S. 36, 52 [defining as testimonial "'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial'"].) "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." (Sanchez, supra, 63 Cal.4th at p. 689.)
2. Gang Evidence Admitted at Trial
Officer Ornelas testified as the People's gang expert. Based on his training and experience with criminal street gangs, including hundreds of contacts with gang members both in and out of custody, he discussed gang culture in general and the Varrio Bakers gang (a Sureño gang) in particular.
Ornelas noted the primary activities of the Varrio Bakers included murder, assaults, robberies, carjackings, drug sales, burglaries, auto thefts, and possession of firearms and other weapons. Ornelas further described four "predicate offenses" for purposes of establishing that Varrio Bakers has engaged in a pattern of criminal gang activity.
To prove a gang enhancement, the People must show that the defendant committed a felony for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) A criminal street gang is defined as an organization, association, or group of three or more persons whose primary activities include the commission of certain enumerated crimes and whose members engage or have engaged in a pattern of criminal gang activity. (§ 186.22, subd. (f).) A pattern of criminal gang activity, in turn, is defined as the commission of two or more enumerated offenses, the last of which occurred within three years after a prior offense, and the offenses were committed on separate occasions or by two or more persons. (§ 186.22, subd. (e).)
The first predicate offense, attempted murder, was committed by Antonio Barraza and Jośe Rodriguez. Ornelas knew Barraza and Rodriguez were Varrio Bakers members on account of his personal interaction with them. However, Ornelas related details of their relevant crime based on his review of documents and discussion with investigating officers. In addition, certified court records regarding the crime were introduced into evidence.
The second predicate offense, felon in possession of a firearm, was committed by George Mendoza. Again, Ornelas provided details of the crime based on talking to other officers and reviewing offense reports. Certified court records of Mendoza's convictions in the case, which included a conviction for participation in a criminal street gang, were introduced into evidence. Mendoza was required to register as a Varrio Bakers member in the case. Ornelas opined that Mendoza was a Varrio Bakers member.
The third predicate offense, illegal firearms possession and transportation of a controlled substance, was committed by Raphael Armas, who was required to register as a member of Varrio Bakers in connection with the case. Ornelas briefly described the offenses, based on talking to the investigating officers and reviewing offense reports, and opined that Armas was an active member of the Varrio Bakers. The prosecution introduced court records regarding Armas's conviction.
The fourth and final predicate offense, attempted murder of a police officer, was committed by Anthony Perez. Ornelas himself participated in the investigation of this case. He described the facts of the offense. The prosecution introduced court records regarding Perez's conviction. Perez was also convicted of gang participation and required to register as a member of Varrio Bakers. Ornelas testified that Perez was an active member of the Varrio Bakers gang.
Ornelas also testified about incidents involving Carbajal that he learned about by reading "street check" and offense reports, viewing photographs, and talking to gang members who knew Carbajal. Ornelas referenced a letter that Carbajal had written to George Mendoza, in which Carbajal alluded to the Varrio Bakers gang and expressed a desire to get additional gang tattoos. In addition, Ornelas discussed street checks that he personally conducted, during which Varrio Bakers members had praised Carbajal.
Ornelas next described an incident in which Sergeant Ryan Kroeker effected a traffic stop on Carbajal and observed gang tattoos and gang clothing on him. Kroeker also testified at trial, prior to Ornelas, and separately described the facts related to this incident. Ornelas described another incident in which Carbajal sustained injuries from a gang fight but refused to cooperate with officers. Officer Fredrick Martinez had investigated that incident. Martinez also testified at trial, prior to Ornelas, and separately described the facts related to that incident. Finally, Ornelas described an incident in which Carbajal shot and killed a rival gang member but was not prosecuted because he had acted in self-defense. Ornelas had participated in the investigation of this incident.
Ornelas opined that Carbajal was an active member of the Varrio Bakers at the time of the incident underlying the instant charges. He further opined that Carbajal's companions, George Mendoza and Emmanuel Lopez-Reyes (whom Ornelas had personally contacted in a street check), were also members of Varrio Bakers. In conclusion, the prosecutor posed a hypothetical based on the circumstances of the charged offenses. Ornelas stated: "Based on that scenario, it would be my opinion that the possession of the firearm benefits the gang. It's also in association with the gang and at the direction of the gang."
3. Analysis
As the summary of the gang evidence set forth above demonstrates, the gang evidence introduced in this case included both admissible evidence as well as evidence that is inadmissible under Sanchez. The admissible evidence, at a minimum, relates to the street checks and investigations Ornelas himself conducted, the testimony of Sergeant Kroeker and Officer Martinez, and the court records of the predicate offenses. At the same time, as Carbajal contends and the People do not dispute, Ornelas's testimony, to a large extent, encompassed both inadmissible case-specific hearsay and inadmissible testimonial hearsay. In evaluating Carbajal's instant claim, we are concerned only with the residual prejudice arising from the inadmissible portions of Ornelas's testimony.
Here, the prosecution's case was strong and the defense did not adduce any evidence to rebut the prosecution's evidence. Evidence showing that Carbajal hit Officer Nuno with the car door, causing Nuno to fall to his knees, was undisputed, as was the evidence that Carbajal tussled with Nuno until Officer Chavez hit Carbajal, multiple times, on the upper arm with his police baton. While Nuno was actively involved in the incident, Officers Chavez and Orozco saw it unfold. The respective testimony of each officer was consistent with, and largely overlapped, the testimony of the others. Thus, the charge of obstructing or resisting an officer by force was supported by compelling eyewitness evidence (defense counsel even conceded that Carbajal was guilty of the lesser included offense of misdemeanor resisting an officer).
It was also undisputed that, while tussling with Officer Nuno, Carbajal threw a Ruger pistol containing seven live rounds onto the lawn or driveway of a house on Clyde Street. Evidence showing that the serial number on the Ruger pistol was obliterated was undisputed as well, and it was clear, in light of Carbajal's stipulation that he was a felon, that he was both prohibited from possessing the gun and its ammunition and was ineligible to register as the owner of the gun. In light of this evidence, defense counsel conceded Carbajal's guilt on felon in possession of a firearm and felon in possession of ammunition. Evidence of Carbajal's guilt with respect to the charge of carrying a loaded gun in public without being the registered owner was equally strong.
The record demonstrates that the evidence of guilt as to the charged offenses was overwhelming, discrete, and distinct from the gang evidence introduced to prove the gang enhancement allegations. Carbajal himself admits in his opening brief that "[t]he trial turned on whether jurors believed the officers" and that "the jury did not accept the gang expert's testimony." Assuming most of Ornelas's testimony was inadmissible, we conclude it was harmless beyond a reasonable doubt with respect to the jury's verdicts on counts 4, 5, 7 and 8. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Merritt (2017) 2 Cal.5th 819, 831 [under Chapman, we "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error"].)
Since Ornelas's testimony encompassed both case-specific hearsay as well as testimonial hearsay, we have evaluated the prejudice arising from the inadmissible portions of his testimony under the constitutional standard of prejudice articulated in Chapman. (See Sanchez, supra, 63 Cal.4th at p. 698.)
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
ELLISON, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------