Opinion
D073129
02-26-2018
THE PEOPLE, Plaintiff and Respondent, v. DOMONIC ANTONIO COOPER, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Daniel J. Hilton, and Eric Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FSB1300804) APPEAL from a judgment of the Superior Court of San Bernardino County, R. Glenn Yabuno, Judge. Affirmed as modified. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Daniel J. Hilton, and Eric Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Domonic Cooper of pimping a minor over the age of 16 (Pen. Code, § 266h, subd. (b)) (count 1); pandering by procuring a minor over the age of 16 (§ 266i, subd. (b)(1)) (count 2); unlawful sexual intercourse (§ 261.5, subd. (c)) (count 3); and human trafficking of a minor for a sex act (§ 236.1, subd. (c)(1)) (count 4). The jury found that Cooper committed counts 1, 2, and 4 for the benefit of, at the direction of, or in association with a criminal street gang with specific intent to promote, further, or assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(A). The jury also found Cooper's commission of count 4 involved the use of force, fear, fraud, deceit, violence, duress, menace, or threat of unlawful injury to the victim or another person within the meaning of section 236.1, subdivision (c)(2). In a bifurcated proceeding, the court found Cooper had a prior strike conviction (§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and three prior prison term convictions (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise specified.
The court sentenced Cooper to a total prison term of eight years and four months followed by a term of 30 years to life, calculated as follows: On count 4, which the court deemed the principal count, the court imposed a term of 15 years to life, doubled to 30 years for the prior strike, plus four years for the gang enhancement and three years for the three prison prior enhancements. On count 3, the court imposed a consecutive term of eight months, doubled to 16 months for the prior strike. The court imposed prison terms of 16 years on counts 1 and 2, but stayed punishment on those counts under section 654.
Cooper raises the following arguments on appeal: (1) there was insufficient evidence to support the gang enhancements; (2) the prosecution's gang expert relied on case-specific, testimonial hearsay to prove the gang enhancements, in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); and (3) the trial court erred by imposing a term of years under section 186.22 rather than a minimum parole date for the gang enhancement on count 4. The People concede the sentencing error. We modify the judgment in light of the conceded sentencing error, and otherwise affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2013, Cooper first contacted Jane Doe, who was 16 years old and had learning and emotional disabilities. Doe and her younger sister were walking to a store in San Bernardino when Cooper pulled over his car, initiated a conversation with Doe, and exchanged phone numbers with her. After Doe and her sister left the store, Doe called Cooper "to see what he was doing." After a short phone conversation, Cooper picked up Doe and her sister and drove them home. Doe went inside the house with her sister while Cooper waited outside in his car. Doe shortly went back outside and got into Cooper's car because "he looked like he was mean" and Doe was afraid.
Cooper then drove Doe to a clothing store and bought her a mini dress and underwear that he picked out. After Doe changed into the new clothes, Cooper drove her to his apartment in Los Angeles and had sex with her. That night he talked to her about prostitution. He told her she was "going to get out there," and she knew that "he was talking about . . . prostituting."
The next day, Cooper drove Doe back to San Bernardino and dropped her off on Baseline Avenue, San Bernardino's main "track" or "blade," which is a street or area where prostitution is conducted. Doe was wearing the mini dress that Cooper bought the previous day. Cooper gave her condoms and told her to charge $20 for a "hand job," $40 for "head," and $100 for sex, and not to talk to other prostitutes. Doe earned about $100 performing sex acts that night and gave the money to Cooper. Cooper then took Doe back to his apartment in Los Angeles and had sex with her.
The next day, Cooper dropped off Doe in an area of Los Angeles to perform prostitution while he attended school. Doe had sex that day with a person who picked her up and drove her to a motel. When Cooper got out of school, Doe gave him the money she had been paid for the sex. Cooper then drove her back to San Bernardino, where she continued to work as a prostitute on Baseline Avenue.
One night, Doe saw Cooper get out of his car and kick "[a]n old prostitute that used to work for him." Cooper said to the woman he kicked, "Bitch, you owe me some money." Another night, Cooper saw Doe sitting down near a liquor store on Baseline. When Cooper approached Doe and asked her why she was sitting there, Doe "got smart with him" and mumbled something under her breath. Cooper slapped her and later hit her twice in his car for sitting down when she was supposed to be working as a prostitute. Doe was afraid of Cooper because he told her he was a member of the gang PPHG (Pimps, Players, Hustlers, and Gangsters), and he threatened to kill her mother if Doe tried to leave.
On February 26, 2013, Doe attracted the attention of police officers driving down Baseline Avenue because she was wearing a fishnet dress with nothing underneath. One of the officers testified that "[Doe] really stood out. She looked like she was naked walking down the street." Doe had been wearing leggings and a bra under the dress, but Cooper ordered her to take them off because she was not attracting enough attention. Doe complied because she was afraid of Cooper. The officers parked across the street from the intersection where Doe was located and observed her waving at passing vehicles. A vehicle eventually pulled over and Doe entered it after a brief conversation with the driver. Shortly after the car drove off, police stopped it and took Doe to the police station.
When Doe was initially interviewed at the police station, she falsely told the detective who interviewed her that she learned prostitution from someone named Melissa, whom she had met at the continuation school she attended. Doe testified that she lied because she was scared. She was in possession of a cell phone and a condom that was the same brand, color, and lot number of several condoms that police later recovered from Cooper's car. After the police took possession of Doe's cell phone, the phone received numerous calls from Cooper's phone number that was identified in Doe's phone as belonging to "Chase." There had been 153 calls between Cooper's phone and Doe's phone, and a text message from Doe to Cooper stating, "I'm doing everything I can. I'm waving at them. They wave back, but keep on going."
Doe agreed to make a series of "pretext calls" to Cooper on her cell phone in the presence of police officers. When Cooper answered the first pretext call, he sounded angry and asked Doe where she was. She told him the police had arrested her and let her go. Cooper responded, "Bitch, you with the police. I don't give a fuck about no police, ho. You tell them I'm your husband. You ain't never gave me no money. I ain't no pimp. I'm your husband, bitch. You be a good ho, bitch[.]"
During a later pretext call, Doe asked Cooper to pick her up at a store in downtown San Bernardino. Police set up surveillance points around that location and saw Cooper's vehicle pass through the store's parking lot at a high rate of speed. After Cooper exited the lot, the police pulled him over and arrested him. Cooper told the police his name used to be "Insane" from the gang PPHG, but now he goes by "Big Sane" because he makes wise decisions. The police searched Cooper's car with his permission and found three condoms; women's shorts; a pink and black bra; a handwritten note with the heading, "My name is Chase"; a cellphone; a handwritten biography; and a flier with a photo of Cooper, the word "sane," and the number "4."
Police later searched Cooper's apartment in Los Angeles and found a flier taped to the wall that contained a picture of Cooper and the number "4." Police also found a handwritten poem or "rap" that included the following references to pimping: "East Side Baby with a Baseline dream, six, seven hoes, eight, nine stacks green." A police officer who worked as an investigator for the San Bernardino Police Department's vice unit testified that "Baseline" referred to San Bernardino's active track or blade (prostitution area); "six, seven hoes" referred to a pimp's women; "eight, nine stacks" referred to a thousand dollars; and "green" was a reference to money.
Jennifer Kohrell, a detective with the San Bernardino Police Department who had been a detective in the department's vice and narcotics unit and conducted prostitution programs, testified that the majority of female prostitutes working on the Baseline track had pimps, and all of the juvenile prostitutes she had interviewed had pimps. She testified that "[t]he younger the girl is, the more naïve they are, the less life experience they have, and the more they're susceptible to these lies and the devious behavior these pimps will display." She also testified that the majority of female prostitutes she had contacted had some sort of physical or mental disability and that "those are, unfortunately, the females that are easiest to target because they're easily manipulated or tricked because of their mental disabilities or lied to and then, unfortunately, believe what they were told."
Detective Jonathan Plummer testified as the prosecution's gang expert. Plummer testified that he was familiar with the PPHG gang based on criminal investigations (both his own and those of other officers). He had written search warrants for the gang, testified as an expert on the gang, and arrested members of the gang for various crimes, including murder, conspiracy to commit murder, weapons violations, and possession of cocaine for sale. He had "acted in an undercover capacity" and purchased narcotics from gang members, and had "debriefed" certain high-ranking members. He explained that debriefing was when a gang member cooperated with law enforcement and gave information about their gang that would potentially help law enforcement in the future. He had read reports from other officers about crimes committed by PPHG and had spoken to other officers about the gang. He was familiar with the history of the gang.
Plummer testified that the PPHG gang was formed in the mid-1980's and had about 50 members. The gang members wore blue to show their allegiance to the Crip criminal street gang, and one of the gang's hand signs was to hold up four fingers because the gang is "identified as a four gang with the four letters [PPHG] within that gang . . . ." According to Plummer, the gang "continuously and repeatedly engages in criminal activity based on documentation that our police department has and other local agencies as well." The gang's primary criminal activities included murder, attempted murder, conspiracy to commit murder, sales of narcotics, weapons violations, witness intimidation, and prostitution. The area where the police took Doe into custody was in the PPHG gang's territory. When asked whether PPHG is a criminal street gang, Plummer testified: "Based on their conduct, their continuous pattern to commit criminal acts within the city and out of the city, I believe they're . . . an active criminal street gang."
The court admitted into evidence a color photograph showing a tattoo on Cooper's right arm depicting "PPHG" and "Crip." The court also admitted a color photograph showing a black teardrop underneath Cooper's left eye. Regarding the significance of the teardrop, Plummer testified: "Normally, in gang crimes or gang investigations, when individuals get teardrops underneath their eyes, it's a show of recognition for them putting in work or committing violent crimes, such as assaults or all the way to the top of murder."
The court admitted a third photograph showing a tattoo of a Roman numeral IV, money sign, the letters "r-i-p" and "INS," and a musical note. Regarding the significance of those symbols, Plummer testified: "As a gang investigator, I would say that the tattoo that would stand out to me would be the 'IV,' which is the Roman Numeral sign for 4. Based on the fact that the PPHG criminal street gang identifies themselves as a 4 gang, it's significant to their actual criminal street gang. So it shows his allegiance to that gang by having that tattooed on his body." The court also admitted a photograph of Cooper's stomach area showing a tattoo of the words "Valley Boy" with unintelligible text beneath it. Plummer testified that the tattoo showed Cooper's allegiance to PPHG because Valley was a predominant street within the gang's territory.
Regarding the flier that police found in Cooper's apartment, Plummer testified: "Well, the first thing that stands out to me would be in the middle portion of the flier it says, 'starring, written, and directed by INS,' and it says, 'Sane' with the number 4. As I testified earlier, that 4 is very significant for his criminal street gang. So it definitely shows his allegiance to that gang . . . . He's actually marketing this to other individuals, and it shows his allegiance to his criminal street gang, that it can be spread to a wider spread of individuals." Regarding the flier found in Cooper's car, Plummer testified that Cooper's gang moniker of Big Sane and the number 4 within his gang name on the flier stood out to him because they showed his gang name and "his allegiance to the criminal street gang of PPHG."
Plummer opined that Cooper was an active member of PPHG "based on prior police contacts, the gang identification cards, the information revealed during this investigation, and also the gang tattoos as well." His opinion was also based on Doe's statement in a police report that she had knowledge or believed that Cooper was a member of PPHG. Plummer explained that Doe's statement went "to the fact of the intimidation, based on the fact of the victim knowing that this individual is a gang member. Most individuals are intimidated by gang members based on what they bring to the table, knowing that if they cooperate with law enforcement or go against them, then not only will that individual potentially cause great bodily injury or even more, but they also have gang members that can also assist them in hurting them as far as witness intimidation or physical assault."
Plummer testified that he was aware of other cases where gang members had pimped out girls for the benefit of the gang. Based on his background, training, and experience, he testified gang members were turning to pimping as a way of making money for the gang.
The prosecutor gave Plummer the following hypothetical: "Officer, assume the follow fact[s]: Defendant is a known gang member. He picks up an underage girl in San Bernardino. He takes her by a known prostitution track and continually tells her it's okay to sell her body. He tells her if she sells her body, the police can't do anything to her because it's only a misdemeanor. He physically assaulted this girl in front of others. He drove her back and forth between a location in Los Angeles and San Bernardino so she could work the streets in this county as a prostitute. She witnessed him physically attack another female that he said owed him money and used to work as a prostitute for him. He made the girl take off her clothing and work on Baseline in nothing but a fishnet dress. He threatened [the] girl by telling her that if she doesn't work for him, he will kill her mother. The young female observed that he was with other males when she was working the track in San Bernardino. [¶] Do you have an opinion as to whether these particular crimes were committed for the benefit of the Pimp, Player, Hustler and Gangsters criminal street gang?"
Plummer responded: "My opinion, first, is based on intimidation, like I testified earlier. It's a prime example of why an individual would not want to cooperate with law enforcement. When anyone poses any type of threat or harm towards our family, it's just our normal reaction to anyone. We want to go into protection mode, and sometimes those protection modes can be a vulnerable state where you state you don't want to go to the police because you fear what the retaliation may be. So fearing that this individual posed a threat towards harming someone's family, that can be a benefit to him and the criminal street gang based on the fact that it's a recruiting tool to other younger members based on the particular way that the intimidation is brought towards these younger victims. [¶] In regards to driving this individual around, looking at the locations of where the prospects are, the money, the revenue that can be generated for this individual, it can also be spread back to that criminal street gang to be utilized to purchase clothes, narcotics, vehicles, weapons, and also to be utilized to place on other inmates, gang members' books inside a jail to help them with their food or whatever needs to be taken care of. [¶] So it's not just one isolated incident that helps establish the status of this individual, but also the gang based on the levels of intimidation on the victim, and also the intimidation factor of the community, because the—the stakeholders in this community also see this as an eyesore as they're driving up and down the street and see individuals walking up and down the street. There's obviously someone that's going to be collecting from that revenue. So it benefits everyone."
The prosecutor then asked whether Cooper's reputation within the gang was enhanced because of his commission of the crimes in this case. Plummer responded: "Like I testified earlier, I mean, the biggest thing you can do for a criminal street gang or any type of organization is generate revenue. If you're bringing in money for any type of business, you're going to be looked upon as an asset, and if you're bringing in, like I said, a certain amount or a certain percentage of money to yourself and your criminal street gang, you are known as an asset, and it's more of a negotiating or bargaining tool for individuals such as younger recruits when they look up to these individuals, and they want that. They . . . aspire for that. They don't want to be an individual that goes to college. They want to be someone who gets the fast money in which they see that being made right in front of them hand over fist by committing illegal acts where they can avoid detection from law enforcement because it's all on the victim and not the actual pimp." Asked whether these crimes promote or further the criminal conduct of the PPHG gang, Plummer responded: "Yes it does."
II.
DISCUSSION
A. The Evidence Was Sufficient to Support the Gang Enhancements
Cooper contends there was insufficient evidence to support his gang enhancements. Specifically, Cooper claims there was insufficient evidence that he committed each offense for the benefit of a gang and with the specific intent to promote, further, or assist criminal conduct by gang members. The People contend that—by pimping, pandering, and trafficking Doe—Cooper benefited his gang by intimidating Doe, generating revenue, intimidating the community, and increasing his status within the gang. We disagree with Cooper's claims and find there is sufficient evidence to support the gang enhancements.
1. Standard of Review
"We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction." (People v. Wilson (2008) 44 Cal.4th 758, 806.) "In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
2. Criminal Street Gang Enhancement
Section 186.22, subdivision (b)(1) provides a sentencing enhancement for felonies "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." The prosecution has the burden of proof (People v. Weddington (2016) 246 Cal.App.4th 468, 484), and must establish both prongs of the gang enhancement. "First, the prosecution is required to prove that the underlying felonies were 'committed for the benefit of, at the direction of, or in association with any criminal street gang.' (§ 186.22(b)(1).) Second, there must be evidence that the crimes were committed 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.' (§ 186.22(b)(1) [Citation.]" (People v. Rios (2013) 222 Cal.App.4th 542, 561 (Rios).)
The term "criminal street gang" is defined in section 186.22, subdivision (f), which provides that the gang must consist of "three or more persons" who have as one of their "primary activities the commission of" certain enumerated criminal acts; who share "a common name or common identifying sign or symbol"; and "whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity."
The prosecution may rely on expert testimony regarding criminal street gangs to establish a gang enhancement under section 186.22, subdivision (b)(1). (People v. Vang (2011) 52 Cal.4th 1038, 1048.) However, the expert's testimony must be grounded in admissible evidence to impose a gang enhancement. "[P]urely conclusory and factually unsupported opinions" that the charged crimes are for the benefit of the gang because committing crimes enhances the gang's reputation are insufficient to support a gang enhancement. (People v. Ramirez (2016) 244 Cal.App.4th 800, 819-820, (Ramirez).)
3. Evidence in Support of the Gang Enhancements
There is no claim that Cooper committed any crimes in association with, or at the direction of, criminal street gang members. Thus, the only question before the court is whether there is sufficient evidence to support the conclusion that Cooper's actions benefited the PPHG gang. We conclude there was sufficient evidence to support the jury's gang enhancement findings.
Regarding the first prong of the enhancement, there is substantial evidence to support a finding that Cooper engaged in pimping, pandering, and human trafficking for the benefit of the PPHG gang. Doe testified that she obeyed Cooper's orders to engage in prostitution because she was afraid of him. Cooper instilled fear in Doe when he told her he was a member of PPHG, when he showed her a flier that indicated he was a gang member, and when he threatened to kill her mother. Doe further testified that Cooper was physically violent with her, and that he kicked another female prostitute of his because she owed him money. Gang expert Plummer testified that such victim intimidation was a benefit to both Cooper and the gang because a victim generally is unwilling to go to the police or cooperate with law enforcement if she fears her family will be harmed in retaliation. (Albillar, supra, 51 Cal.4th at pp. 53, 61, 63 [victim knew defendants were gang members and defendants' friends threatened her " 'with her life' " if she contacted police]; compare People v. Ochoa (2009) 179 Cal.App.4th 650, 663 (Ochoa) ["While it is true that the carjacking victim testified that he believed 'a little' that defendant may have been a gang member, it is difficult to imagine how that would benefit [a criminal street gang] because the victim did not know to which gang, if any, defendant may have belonged."].) Plummer further testified that intimidation in the form of threatening a young victim's family members benefitted the gang because it served as a tool for recruiting younger gang members.
Plummer testified that Cooper's crimes also intimidated the general community because the visible presence or "eyesore" of prostitutes generally known to be controlled by pimps in an area generally known to be within PPHG's gang territory made "stakeholders in this community" aware that the gang was active and collecting prostitution revenue. Plummer also explained that pimping is one of the PPHG gang's primary activities. (Compare People v. Ramon (2009) 175 Cal.App.4th 843, 847, 853 [no evidence underlying felonies were among the primary activities of the defendant's gang].) Doe testified about the brazen way in which Cooper forced her to prostitute herself, by demanding that she remove all her clothing and undergarments except for a fishnet dress so that she was essentially naked. A veteran police officer trained in investigating prostitution crimes testified that he was shocked at Doe's appearance, and another explained that Doe "really stood out" because she looked like she was walking the streets naked. The jury could reasonably infer that the community would be intimidated by the PPHG gang's openly operating in the community in this manner, and the gang would benefit from such intimidation in its gang territory. (See People v. Margarejo (2008) 162 Cal.App.4th 102, 110 ["A community cowed by gang intimidation is less likely to report gang crimes and to assist in their prosecution. The gang benefit is plain."].)
Plummer testified that the revenue Cooper generated from his pimping, pandering, and trafficking activities benefitted the gang because it could be used to purchase clothes, narcotics, vehicles, weapons, and also to help gang members "inside a jail . . . with their food or whatever needs to be taken care of." Doe testified that Cooper told her what prices to charge for sex acts, and she was required to turn over all her prostitution profits to him. Cooper's revenue-generating offenses enhanced his reputation and served as a powerful tool for recruiting new gang members. As noted, Plummer testified that "the biggest thing you can do for a criminal street gang or any type of organization is generate revenue. If you're bringing in money for any type of business, you're going to be looked upon as an asset, and if you're bringing in . . . a certain amount or a certain percentage of money to yourself and your criminal street gang, you are known as an asset, and it's more of a negotiating or bargaining tool for individuals such as younger recruits when they look up to these individuals, and they want that. They . . . aspire for that. . . . They want to be someone who gets the fast money in which they see that being made right in front of them hand over fist by committing illegal acts where they can avoid detection from law enforcement because it's all on the victim and not the actual pimp."
When asked to "describe [his] knowledge in this area," Plummer stated: "While a member of the FBI gang task force, I had the opportunity to author several intercept orders, such as wiretaps on certain gang members, and the majority of my wiretaps, even though they were focused on narcotics, we always came across individuals in criminal street gangs that were shying away from selling narcotics and going towards prostitution, and the reason why is, it's an easy way to avoid detection from law enforcement because the pimps are making more money, normally using 60 to 90 percent of the proceeds coming back to them, where they don't take any of the consequences towards—it's more towards the actual female because they're the ones getting arrested, and they're the ones that's getting cited, and it doesn't really go back to them because once they have the intimidation factor to the actual victim, they know that these individuals will not turn against them and cooperate with law enforcement. So it's a lucrative business for these gang members. So its profits benefits the criminal street gang."
In addition, the jury could reasonably infer that Cooper was benefiting the gang by promoting its name and visibility by openly associating himself with the gang. As noted, Cooper informed Doe of his gang association and then threatened to kill her mother, he physically harmed Doe, and he kicked his former prostitute in front of Doe. Although Cooper lived in Los Angeles, he repeatedly drove Doe to PPHG gang territory and forced her to walk the streets in nothing more than a fishnet dress. Plummer's testimony regarding Cooper's visible gang tattoos and a flier about the gang (which he showed Doe) further supports a reasonable inference that Cooper was acting for the benefit of the PPHG gang.
Similarly, there is substantial evidence to support the second prong of the enhancement—i.e., that Cooper acted with the specific intent to promote, further, or assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1). "[T]he scienter requirement . . . applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, supra, 51 Cal.4th at p. 66; People v. Romero (2006) 140 Cal.App.4th 15, 17 ["The specific intent element of section 186.22, subdivision (b)(1) . . . does not require intent to further criminal conduct beyond the charged crime."].) The Court of Appeal's decision in People v. Hill (2006) 142 Cal.App.4th 770 (Hill) is instructive. The Hill court considered the specific intent element in the context of a crime where the defendant was the only gang member present. The court concluded that the specific intent element was satisfied when the defendant intended to promote or further his own gang-related criminal conduct of making a criminal threat. (Id. at p. 774.) Similarly, here, the specific intent element can be satisfied by Cooper's intent to promote and further his own gang-related actions of pimping and pandering Doe. (Ibid. ["There is no requirement in section 186.22, subdivision (b), that the defendant's intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits. . . . Therefore, defendant's own criminal [behavior may qualify] as the gang-related criminal activity."].)
There was also additional circumstantial evidence supporting the jury's finding on the second prong. (See Rios, supra, 222 Cal.App.4th at pp. 567-568 ["As to the specific intent prong[,] '[i]ntent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.' "]; People v. Ferraez (2003) 112 Cal.App.4th 925, 930 [circumstantial evidence can support a finding that a crime was gang-related].) Plummer opined that Cooper's actions would have the effect of instilling fear in the victim and the community, and would thus allow the gang to commit more criminal acts without fear of being reported to law enforcement. Plummer explained that these types of intimidation techniques serve to enhance a gang member's reputation and serve as a recruiting tool for the benefit of the gang. The jury could reasonably infer that Cooper committed his crimes with the intent to achieve these results. (See People v. Vasquez (2009) 178 Cal.App.4th 347, 353 [Jury could find defendant committed crime with intent to achieve the gang expert's "predicted effect of intimidating rival gang members and neighborhood residents, thus facilitating future crimes committed by himself and his fellow gang members."].)
Our conclusion on this issue is further supported by the fact that Cooper informed Doe of his gang membership and directly threatened to retaliate against her family if she tried to leave. (Hill, supra, 142 Cal.App.4th at pp. 773-774 [Defendant's criminal threat against the victim and his reference to a "Crips" gang, after the victim allegedly had "disrespected" him following a minor car accident, satisfied the second prong of section 186.22, subdivision (b)(1).].) Further, based on the undisputed fact that the first letter of the gang's name, PPHG, stands for "pimps," the jury could reasonably infer that Cooper chose to commit the crimes of pimping, pandering, and trafficking to promote and further that criminal conduct core to PPHG's identity and among its primary criminal activities. Cooper's intent to promote PPHG's criminal conduct of pimping was further evidenced by his original rap lyrics promoting pimping as a way to acquire substantial amounts of money.
Both sides rely on various cases to support their respective positions regarding the sufficiency of the evidence. "Reviewing the sufficiency of evidence, however, necessarily calls for analysis of the unique facts and inferences present in each case, and therefore comparisons between cases are of little value." (People v. Rundle (2008) 43 Cal.4th 76, 137-138, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.) We acknowledge this presents a closer case compared to situations where the defendant acts in concert with other gang members, but a lone actor may be subject to a gang enhancement too. This is not a situation where a gang enhancement was based on sweeping generalizations about gangs without evidentiary support (People v. Franklin (2016) 248 Cal.App.4th 938, 943, 950); a defendant's gang membership alone (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130); or pure speculation about hypothetical benefits to a gang (Ochoa, supra, 179 Cal.App.4th at p. 663). The testimony of the victim and gang expert in this case demonstrate that Cooper's crimes benefit the PPHG gang in both tangible and intangible ways. Moreover, even if it was a reasonable inference from the evidence that Cooper was engaging in pimping and pandering solely for his personal benefit, it was also reasonable for the jury to reject this claim. We will not reverse the jury's gang enhancement findings in such circumstances. (See Albillar, supra, 51 Cal.4th at p. 60 ["If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding."]; People v. Vasquez (2015) 239 Cal.App.4th 1512, 1517 ["We must accept logical inferences that the jury might have drawn from the evidence although we would have concluded otherwise."].)
In sum, we conclude there was sufficient evidence for the jury to find that Cooper's crimes were committed for the benefit of, and with the specific intent to benefit, the PPHG gang.
B. Any Admission of Evidence in Violation of Sanchez Was Harmless
Cooper contends his Sixth Amendment right to confront and cross-examine witnesses was violated when gang expert Plummer relied on case-specific, testimonial hearsay to prove the gang enhancements, contrary to the California Supreme Court's decision in Sanchez, supra, 63 Cal.4th 665. The People contend Cooper's claim lacks merit.
The People also contend Cooper forfeited this issue because he did not object at trial to Plummer's testimony on the ground it violated his rights under the confrontation clause. We reject the People's contention because an objection on that ground before Sanchez was filed likely would have been futile. "[T]he trial court was bound to follow pre-Sanchez decisions holding expert 'basis' evidence does not violate the confrontation clause." (People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7 (Meraz).)
In order to sustain a criminal street gang enhancement, the prosecution has the burden to prove that the gang " 'includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period.' " (Sanchez, supra, 63 Cal.4th at p. 698; see § 186.22, subds. (e) & (f).) The minimum requirement to establish a pattern of criminal gang activity is two or more predicate offenses committed either (1) on separate occasions or (2) on a single occasion by at least two gang members. (People v. Loeun (1997) 17 Cal.4th 1, 9-10.) The predicate offenses do not have to be gang-related or committed for the benefit of the gang, but they must have been committed by gang members. (People v. Gardeley (1996) 14 Cal.4th 605, 621, disapproved on another ground in Sanchez.)
Subdivision (e) of section 186.22 states: "As used in this chapter, 'pattern of criminal gang activity' means the commission of, attempted commission of, . . . or solicitation of . . . two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . ."
In the present case, Plummer testified about four predicate offenses to establish a pattern of criminal activity by PPHG. First, he testified that gang member Darnell Johnson committed an assault by means likely to produce great bodily injury in July 2011. Johnson was arrested for the offense and a gang enhancement based on his membership in PPHG was alleged. Plummer testified that Johnson was a member of the PPHG street gang and he knew that "[b]ased on information received from the San Bernardino Police Department, the gang information, and also speaking to other officers as well."
Plummer next testified that he was familiar with a criminal threat and stalking case involving Cooper that occurred in October 2009. He was familiar with Cooper's prior case by "review for the investigation based on his conduct in regards to that case." He had read the reports of the officers involved in the investigation and knew Cooper was a documented member of PPHG "[b]ased on reviews of his gang contacts with our City of San Bernardino."
Plummer then testified that he was familiar with a robbery involving Jerome Thomas that occurred in November 2009 because he assisted in the investigation. He did not testify in that case, but he viewed surveillance video of the robbery and was able to identify Thomas. He also read reports of other officers involved in the investigation. After a year-long manhunt, Thomas was apprehended in Las Vegas and brought to San Bernardino. Plummer explained that he knew Thomas was a member of PPHG for the following reasons: "Based on my own personal contacts with him, arrest, and just other information I've been involved in based on my current—or my prior assignment as a gang investigator."
Finally, Plummer testified he was familiar with an attempted voluntary manslaughter involving Dearnaz Wilson that occurred in March 2011. He prepared search warrants and arrest warrants for ten defendants who conspired to kill two individuals of a rival gang for killing one of their gang members. Wilson was found inside of a stolen car with loaded stolen firearms before he and his fellow gang members "[went] out to commit a drive-by." Based on information from an informant, Plummer was able to contact law enforcement and have Wilson and the others stopped before they carried out their plan to kill rival gang members. Plummer read the reports of other officers involved in the investigation. The outcome of the case was that all ten defendants were convicted and sentenced to state prison. Plummer testified that Wilson was "a member of the Colton City Crips, which is an alliance of the PPHG, which they call themselves the 34 Blitz to combine both three, which is Colton City Crips, and the four, of PPHG . . . ." Plummer was not asked and did not volunteer how he knew Wilson's gang status.
The court admitted into evidence plea forms establishing convictions of the predicate offenses as to Johnson, Cooper, and Thomas. The prosecutor informed the court that there was no exhibit regarding Wilson's offense. Such certified copies of official records of conviction fall within a statutory exception to the hearsay rule (Evid. Code §§ 452.5, subd. (b), 1280) and are not testimonial. (See People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 (Taulton) [records "prepared to document acts and events relating to convictions and imprisonments" not testimonial]; accord People v. Moreno (2011) 192 Cal.App.4th 692, 710-711 [following Taulton and explaining certified court records are not prepared for the purpose of anticipated future criminal proceedings].)
In Sanchez, the California Supreme Court addressed the extent to which an expert witness may properly relate hearsay evidence as the basis for an expert opinion. The court noted that "[t]he hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise. . . . Knowledge in a specialized area is what differentiates the expert from a lay witness, and makes his testimony uniquely valuable to the jury in explaining matters 'beyond the common experience of an ordinary juror.' [Citations.] As such, an expert's testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds.
Evidence Code section 1200 provides: "(a) 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [¶] (b) Except as provided by law, hearsay evidence is inadmissible. [¶] (c) This section shall be known and may be cited as the hearsay rule."
"By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge." (Sanchez, supra, 63 Cal.4th at p. 676.)
The Sanchez court thus "restore[d] the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Sanchez, supra, 63 Cal.4th at p. 685.) Sanchez does not affect "the traditional latitude granted to experts to describe background information and knowledge in [their] area[s] of expertise." (Ibid.) However, when an "expert testifie[s] to case-specific facts based upon out-of-court statements and assert[s] those facts [are] true because he relied upon their truth in forming his opinion, he [is] reciting hearsay." (Ibid.)
The Sanchez court explained that "[t]he admission of expert testimony is governed not only by state evidence law, but also by the Sixth Amendment's confrontation clause, which provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .' (U.S. Const., 6th Amend.) As the United States Supreme Court observed, 'this bedrock procedural guarantee applies to both federal and state prosecutions.' " (Sanchez, supra, 63 Cal.4th at p. 679, quoting Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford).) "Under Crawford, if an exception was not recognized at the time of the Sixth Amendment's adoption . . . , admission of testimonial hearsay against a criminal defendant violates the confrontation clause unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 680, italics added, fn. omitted.)
In light of California's hearsay rules and Crawford, the Sanchez court adopted the following rule: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. . . . 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." (Sanchez, supra, 63 Cal.4th at p. 686.) In other words, the Sanchez court held that case-specific out-of-court statements conveyed by the prosecution's gang expert constitute inadmissible hearsay under state law and, to the extent they are testimonial, run afoul of Crawford. (Id. at pp. 670-671.)
Regarding what constitutes a testimonial statement, "[t]he Sanchez decision surveyed the substantial body of case law regarding the proper formulation of 'testimonial' and summarized the concept as follows: 'Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.' [Citation.] Also, in order to be considered testimonial, 'the statement must be made with some degree of formality or solemnity.' " (People v. Ochoa (2017) 7 Cal.App.5th 575, 583 (Ochoa).)
Although the improper admission of hearsay generally constitutes statutory error of state law, the improper admission of testimonial hearsay in violation of the Constitution's confrontation clause is an error of federal law requiring reversal unless the error was harmless beyond a reasonable doubt. (Sanchez, supra, 63 Cal.4th at pp. 685, 698-699; People v. Martinez (2018) 19 Cal.App.5th 853.) The federal standard is also properly applied when the hearsay in question is a mix of testimonial and nontestimonial hearsay. (Martinez, at pp. 860-861.)
The standard of reversal for a statutory error of state law is whether "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) The federal standard referenced in Sanchez, which requires reversal unless the error is harmless beyond a reasonable doubt, is stated in Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Huynh (2018) 19 Cal.App.5th 680, 695.)
Cooper contends Plummer's testimony violated his Sixth Amendment right to confront witnesses because Plummer relied on case-specific, testimonial hearsay to testify that Johnson, Thomas, and Wilson were gang members. We conclude that to the extent the admission of any of Plummer's testimony about the gang status of the predicate offenders constituted error, the error was harmless under any standard because there was sufficient admissible evidence that PPHG members committed two predicate offenses (Cooper's 2009 criminal threats and Thomas's 2009 robbery) within a three-year period to establish a pattern of criminal activity within the meaning of section 186.22, subdivision (e).
Robbery and attempted criminal threat both qualify as predicate offenses under section 186.22. (§ 186.22, subd. (e)(2) & (24).)
Cooper does not dispute or challenge the admissibility of Plummer's testimony that Cooper was a member of PPHG in 2009 when he committed his criminal threat offense. The People only had to establish that one other PPHG member committed a predicate offense. All the predicate offenses were established by admissible evidence, including certified court records. The issue before us is whether any of the other individuals' gang membership was established by admissible evidence. We conclude Thomas's gang membership was properly established through Plummer's testimony.
The prosecutor indicated there was no exhibit relating to Wilson's predicate offense (see fn. 6, ante). However, Plummer testified that he was involved in investigating Wilson's crime and the defense raised no objection to the testimony regarding the predicate offenses.
In evaluating the evidence of gang membership, we consider whether the testimony was (1) case-specific and (2) testimonial. There is a split of authority as to whether testimony about a nonparty, offered to show that this nonparty is a gang member, is a case-specific fact. (See Meraz, supra, 6 Cal.App.5th at pp. 1174-1175 [testimony about gang membership of individuals committing predicate offenses not case-specific], review granted on other issue Mar. 22, 2017, S239442; Ochoa, supra, 7 Cal.App.5th at pp. 581-583, 587-589 ["out-of-court statements by individuals [convicted of predicate offenses] admitting being members of the [subject gang]" are case-specific hearsay]; People v. Lara (2017) 9 Cal.App.5th 296, 337 [predicate offense is an element of the gang enhancement].)
We need not address this issue, however, because Cooper failed to demonstrate that Plummer relied upon testimonial hearsay to support his conclusions that Johnson, Thomas, or Wilson were PPHG gang members. While Plummer stated he relied on "information received from the San Bernardino Police Department" as well as "speaking to other officers" regarding Johnson's gang membership, he did not further describe what information or documents he reviewed. Plummer similarly did not explain whether the information he obtained stemmed from an official investigation of a completed crime, versus during an ongoing emergency, or for some purpose unrelated to preserving facts for later use at trial. (Sanchez, supra, 63 Cal.4th at pp. 689, 694.) With respect to Wilson, Cooper was not asked for the basis of his opinion regarding this nonparty's gang membership. "[O]nly when a prosecution expert relies upon, and relates as true, a testimonial statement would the fact asserted as true have to be independently proven to satisfy the Sixth Amendment." (Id. at p. 685.) Because Cooper failed to object to the expert's testimony on hearsay or confrontation clause grounds, we are faced with an undeveloped record. We cannot merely assume that the information and documentation referred to by Plummer was testimonial hearsay. (Ochoa, supra, 7 Cal.App.5th at p. 585; see People v. Williams (2013) 58 Cal.4th 197, 298-299 [defendant bears burden on appeal of affirmatively demonstrating error].)
In addition, Plummer's testimony regarding Thomas's gang membership did not violate Sanchez because it was based on his personal knowledge, and he was subject to cross-examination. (See Meraz, supra, 6 Cal.App.5th at p. 1176 [finding that, "unlike the hearsay documents in Sanchez, [the gang expert's] testimony was not barred under state or federal law because [the expert] was present during these contacts [with the defendants], had personal knowledge of the facts, and was subject to cross-examination at trial"].) Plummer testified that he knew Thomas was a member of PPHG in 2009 based on his own personal contacts with Thomas, including his arrest, and other information he acquired from his prior assignment as a gang investigator. Because Plummer's testimony regarding Thomas's gang membership was based on his personal knowledge and observations, it was not hearsay. (Sanchez, supra, 63 Cal.4th at p. 685 [expert witnesses "can rely on information within their personal knowledge"]; People v. Iraheta (2017) 14 Cal.App.5th 1228, 1248.)
In summary, even assuming some case-specific hearsay regarding gang membership was improperly admitted, there is no affirmative evidence establishing it constituted testimonial hearsay and Plummer's testimony regarding Thomas's predicate offense was based at least in part on his personal knowledge. Accordingly, Cooper has not shown that Plummer's testimony regarding the predicate offenses he and Thomas committed in 2009 violated his Sixth Amendment right to confront and cross-examine witnesses.
C. There Was a Conceded Sentencing Error
Cooper contends, and the People concede, that the trial court erred by imposing a term of years for the gang enhancement under section 186.22 rather than a minimum parole date. The court imposed a term of 15 years to life on count 4, doubled to 30 years for the prior strike, plus four years for the gang enhancement under section 186.22, subdivision (b)(1)(A). Section 186.22, subdivision (b)(5) provides that with exceptions not applicable in this case, "any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." Thus, the court should have imposed a 15-year minimum parole date under subdivision (b)(5) of section 186.22 instead of a four-year prison term under subdivision (b)(1)(A) for the gang enhancement. We will direct the court to amend the abstract of judgment accordingly.
DISPOSITION
The judgment is modified to strike the four-year gang enhancement on count 4 under section 186.22, subdivision (b)(1)(A), and to impose a 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5). The trial court is directed to prepare a corrected abstract of judgment reflecting the striking of the four-year gang enhancement and imposition of the 15-year minimum parole eligibility term, and to forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. AARON, J.