Opinion
A132736 A139535
03-29-2017
THE PEOPLE, Plaintiff and Respondent, v. MAJOR EBERHART, Defendant and Appellant. In re MAJOR EBERHART, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 50713693)
Defendant Major Eberhart was sentenced to serve 91 years to life in state prison after a jury convicted him of first degree murder and other offenses. We affirmed the judgment as modified and remanded the matter for a retrial of prior conviction allegations and for resentencing. The Supreme Court granted review limited to the question of whether Eberhart's "Sixth Amendment right to confrontation [was] violated by the gang expert's reliance on testimony hearsay," and deferred further action pending disposition of a related issue in People v. Sanchez, S216681. After the Supreme Court issued its opinion in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), that court transferred Eberhart's case back to this court for reconsideration in light of Sanchez.
Having analyzed the record and the gang expert's testimony in light of Sanchez, we conclude that, to the extent the gang expert relied upon hearsay in violation of our state's hearsay rule or the confrontation clause of the United States Constitution, any such error was harmless beyond a reasonable doubt. Consequently, we again reject Eberhart's challenge to the gang enhancements and reinstate our previous disposition of the appeal.
PROCEDURAL BACKGROUND
We take much of the procedural and factual background from our earlier opinion in this matter, People v. Eberhart (Sep. 1, 2015, A132736) [nonpub. opn.], review granted November 24, 2015, on specified issues, S229864, and cause transferred to Court of Appeal, First Appellate District, Division Three, with directions on September 21, 2016. (See Cal. Rules of Court, rule 8.1115(b)(1).)
The Contra Costa County District Attorney filed a three-count information charging Eberhart with first degree murder (Pen. Code, § 187), conspiracy to commit robbery and possession of stolen property (§§ 182, 211, 496), and possession of a firearm by a felon (former § 12021, subd. (a)(1)). As to the murder count, it was alleged that Eberhart personally used a firearm causing great bodily injury and death. (§ 12022.53.) As to both the murder and conspiracy counts, it was alleged that the offenses were committed for the benefit of the KUMI criminal street gang. (§ 186.22, subd. (b)(1).) The district attorney further alleged that Eberhart had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12), had previously been convicted of a serious felony (§ 667, subd. (a)), and had four prison priors within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise specified.
A jury found Eberhart guilty as charged, with a finding that the murder was in the first degree. The court imposed an aggregate sentence of 91 years to life in state prison, composed of: (1) 25 years to life for first degree murder, doubled to 50 years because of the prior strike (§§ 190, subd. (a), 667, subd. (e)(1), 1170.12, subd. (c)(1)); (2) 25 years for the use of a firearm (§ 12022.53, subd. (d)); (3) 5 years for the prior serious felony enhancement (§ 667, subd. (a)(1)); (4) the mid-term of 3 years for conspiracy, doubled to 6 years because of the prior strike (§§ 182, 213, subd. (a)(2)); plus (5) five years for the criminal street gang enhancement associated with the conspiracy count (§ 186.22, subd. (b)(1)(B)).
When we first considered Eberhart's appeal, we rejected his challenges to the legal sufficiency of a felony-murder theory relied upon by the prosecution, the sufficiency of the evidence to support his first degree murder conviction, and the trial court's denial of a motion to suppress identification evidence. We agreed with Eberhart that there was no evidentiary support in the record for the imposition of prior conviction and strike enhancements, and we consequently reversed those enhancements and remanded for retrial of the prior conviction allegations and for resentencing. As relevant here, we rejected Eberhart's contention that the prosecution's gang expert relied upon testimonial hearsay in violation of his Sixth Amendment right to confront witnesses. Accordingly, we affirmed the imposition of criminal street gang enhancements associated with Eberhart's convictions for first degree murder and conspiracy to commit robbery. In deciding the issue, we concluded we were bound by the Supreme Court's decision in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), disapproved in part in Sanchez, supra, 63 Cal.4th at page 686, fn. 13, in which the court held that it was proper for a gang expert to rely upon otherwise inadmissible hearsay as the basis for an expert opinion because the hearsay was not offered for its truth but instead was offered for the nonhearsay purpose of explaining the basis of the expert opinion. (See id. at pp. 618-619.) Having rejected Eberhart's challenge to the imposition of the criminal street gang enhancements, we denied a related habeas corpus petition in which Eberhart alleged that his trial counsel was ineffective for failing to object to the gang expert's testimony on hearsay or confrontation clause grounds. We also ordered the abstract of judgment corrected to accurately reflect the impact of the criminal street gang enhancements upon his sentence.
Eberhart filed a petition in the Supreme Court seeking review of this court's decision on four separate grounds. The Supreme Court granted review limited to the question of whether the gang expert's reliance on testimonial hearsay violated Eberhart's constitutional right to confront witnesses and deferred briefing pending resolution of a related issue in Sanchez. The Supreme Court issued its decision in Sanchez on June 30, 2016. In Sanchez, the Supreme Court disapproved its prior decision in Gardeley, supra, 14 Cal.4th 605, "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules." (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) After the decision in Sanchez became final, the Supreme Court transferred Eberhart's case back to this court for reconsideration in light of Sanchez.
Because the Supreme Court's order remanding the case to this court is limited to reconsidering our analysis in light of Sanchez, the impact of the remand is restricted to the issue of whether the criminal street gang enhancements should be affirmed or reversed. Our resolution of all other issues in the earlier opinion is unaffected by the Supreme Court's action. (See People v. Alfaro (1986) 42 Cal.3d 627, 637, fn. 9, overruled on other grounds in People v. Guerrero (1988) 44 Cal.3d 343, 356.) Consequently, our factual recitation and legal discussion is limited to the narrow legal issue before us on remand. --------
Following remand, Eberhart filed a supplemental brief in which he argued that the street gang enhancements should be reversed because the prosecution's gang expert relied upon inadmissible hearsay to establish that Eberhart intended to benefit a criminal street gang in committing the murder and conspiring to commit robbery. With leave of court, Eberhart filed a further supplemental brief arguing that the gang expert also relied on inadmissible hearsay to establish the "pattern of criminal gang activity" component of the criminal street gang enhancement. In response to both of Eberhart's submissions, the People took the position that, even if the gang expert relied in part upon inadmissible hearsay to support his opinion, any error was harmless beyond a reasonable doubt because the criminal street gang enhancements were amply supported by admissible evidence.
FACTUAL BACKGROUND
Our earlier opinion contains a detailed recitation of the facts, which we shall not repeat here. We summarize the facts as they relate to the imposition of the criminal street gang enhancements.
Factual Overview
Eberhart and two other men robbed a jewelry store in Daly City in April 2007. The participants were members of the KUMI African Nation Organization (KUMI) gang. The robbers fled to Richmond, where they broke into a vacant apartment to divide up the proceeds of the robbery. When Eberhart learned that another one of the robbers, Randy Weathers, had attempted to conceal some of the loot for himself, Eberhart shot Weathers in the head and killed him.
The Victim's Wife —Joanna Peppars
Joanna Peppars was the wife of the victim, Randy Weathers. Peppars testified that Weathers was a member of KUMI who often performed assignments for the gang. According to Peppars, Weathers took orders from Eberhart, whom she described as a general in KUMI.
Weathers told Peppars about a plan to rob a jewelry store in Daly City. Originally, Troy "Vimp" Bridges and Chris Magudatto were supposed to participate in the robbery. Peppars testified that Bridges was a KUMI member. She also testified that her husband and Magudatto embraced in the manner in which KUMI gang members greet each other. When Magudatto could not participate in the robbery, Eberhart became involved. Bridges also dropped out of the robbery. Weathers told his wife, Peppars, that he was participating in the robbery for money and because he feared Eberhart. Weathers last saw her husband when he drove off with Eberhart on the morning of the robbery.
When Weathers did not return home after the robbery, Peppars called Norfliss "Pooh" McCullough, a KUMI associate whom Weathers had introduced to Peppars. McCullough told Peppars that the robbery had not gone as planned and that everyone had to lie low. On the day following the robbery, detectives told Weathers that they had found her husband's body in Richmond. After she told the detectives about the robbery plan and the call from McCullough, police gave her equipment to record future calls.
Peppars later participated in a three-way call with Eberhart and McCullough that was being recorded. Peppars pretended to be looking for Weathers even though she knew he was dead. Eberhart and McCullough were apparently unaware that Peppars had learned of her husband's fate. Eberhart told Peppars that Weathers left his jacket at the robbery scene and was afraid to even speak with her on the phone. Eberhart asked Peppars to meet him and bring some clothing and other items for Weathers. Peppars believed that Eberhart was going to harm her because of her knowledge of the robbery. Instead of meeting with Eberhart as instructed, she was placed into witness protection.
The KUMI Gang Member —Norflis McCullough
Norfliss McCullough agreed to testify against Eberhart in exchange for pleading guilty to being an accessory to murder after the fact. McCullough testified at length about the structure of KUMI and his involvement in it. He had been involved in the gang since he was 19 years old, although he claimed that he attempted to distance himself from gang activities since about 2003. KUMI was founded by Leonard Fulgham, who has authority over everyone in the gang.
McCullough was introduced to Weathers in early 2006 and knew he was a KUMI member. He had known Eberhart for over 30 years and testified that Eberhart became a member of KUMI around 2000. According to McCullough, Eberhart was above McCullough in rank within the gang.
On the day before the April 2007 robbery, McCullough placed a three-way call from Fulgham to Eberhart. Fulgham needed money from Eberhart. Eberhart responded that he could comply with Fulgham's request if things went right for him the following day, when the robbery was planned.
McCullough did not participate in the robbery but heard from Eberhart afterwards. Eberhart told McCullough that he had killed Weathers after learning that Weathers had attempted to conceal some of the robbery proceeds for himself. Eberhart said "it had to be done" to avoid looking "soft" and to protect his "rep."
Eberhart expressed concern that Weather's wife, Peppars, could be a witness in light of her knowledge of the robbery. Eberhart asked McCullough to arrange for Peppars to meet with him. McCullough complied even though he knew that Peppars would be in danger if she met with Eberhart.
The Prosecution Gang Expert —Richard Cavagnolo
Richard Cavagnolo, a correctional officer and assistant institutional gang investigator at San Quentin, testified as a gang expert on behalf of the prosecution. He testified at length about the history and structure of KUMI. According to Cavagnolo, Leonard Fulgham leads KUMI from prison in Sacramento, where he regularly communicates with KUMI members who are not in custody. At the time Cavagnolo testified, there were estimated to be about 300 members and associates of KUMI at San Quentin.
Cavagnolo opined that Eberhart was a commander or "shot caller" in the KUMI gang as of 2007, even though Eberhart had not yet been validated as a gang member and lacked some of the indicia of gang membership, such as tattoos. He cited a number of things that supported his opinion. As an institutional gang investigator within the state prison system, he stated that Eberhart is "one of those names" that comes up a lot. Cavagnolo testified that other KUMI gang members had mentioned Eberhart specifically in discussions with him. He also cited a gang roster that had been confiscated from Fulgham's prison cell. The document had been forwarded to Cavagnolo by an official at the prison where Fulgham was housed. Eberhart's gang monikers ("Little Maj" and "Mac Major") appeared on the roster. In addition, Cavagnolo testified about a photograph confiscated from the cell of a validated KUMI member that pictured Eberhart alongside that gang member and Fulgham, the head of KUMI. The three individuals had been housed at Folsom State Prison from about 2003 to 2004. Cavagnolo believed the photograph had been forwarded to him by someone at the Santa Rita jail facility.
The prosecutor set forth a lengthy hypothetical scenario to Cavagnolo that essentially asked the gang expert to assume the background facts of the robbery and murder as established by the testimony and other evidence presented by the prosecution. The prosecutor then asked Cavagnolo to opine, based upon the assumed facts, whether the murder of Weathers had been committed for the benefit or, at the direction of, or in association with the KUMI gang. Cavagnolo responded that the murder had been committed for the benefit of the KUMI gang. He offered the opinion that Weathers had effectively committed treason against the gang by withholding some of the robbery loot and that by killing him Eberhart had furthered the fear and intimidation that prevents other gang members from "cross[ing] the KUMI African Nation Organization." Based upon the same set of assumed facts set forth by the prosecutor, Cavagnolo also opined that the conspiracy to commit robbery was pursued to benefit the KUMI gang. According to Cavagnolo, the robbery was a "major take" committed by gang members acting together, the proceeds of which would ultimately find their way up the organizational structure to benefit the gang's leader, Fulgham.
Cavagnolo testified about crimes committed by three individuals while they were KUMI gang members, ostensibly to establish the component of the criminal street gang enhancement requiring a pattern of criminal gang activity. First, Cavagnolo testified that he was familiar with Christopher Magudatto. He described the circumstances of a robbery committed by Magudatto in October 2004 and expressed his opinion that Magudatto was a KUMI gang member at the time. He based his opinion on documents he had reviewed at San Quentin in which it was reported that Magudatto associated with known gang members. Cavagnolo also testified about the circumstances of an attempted voluntary manslaughter and burglary committed by Magudatto in April 2007. The prosecution offered into evidence certified documents evidencing Magudatto's 2004 and 2007 convictions.
Next, Cavagnolo testified about Troy Bridges, whom he mentioned goes by the name "Vimp." Cavagnolo opined that Bridges had been a KUMI gang member since around 1985. He based his opinion on his review of "written material" and testified that Bridges was a self-admitted gang member. Cavagnolo mentioned that Bridges has a tattoo signifying membership in KUMI and that he knew "that one for a fact." He described the circumstances of an April 2005 drug offense committed by Bridges, and the prosecution introduced into evidence a certified record of Bridges' conviction for an April 2005 offense of possession of cocaine base for sale.
The third gang member that Cavagnolo testified about was Eric Lee. Cavagnolo stated that he personally recovered gang-related documents in Lee's possession and was involved in validating Lee as a KUMI gang member. The prosecution offered into evidence certified records establishing that Lee had suffered a conviction for assault with a firearm.
DISCUSSION
On appeal and in a related petition for a writ of habeas corpus, Eberhart contends the testimony of the prosecution's gang expert, Richard Cavagnolo, was largely based on testimonial hearsay and consequently violated his Sixth Amendment right to confront witnesses as recognized in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). In supplemental briefing provided to this court following the remand from the Supreme Court, Eberhart identifies two categories of testimony offered by the gang expert that purportedly constitute testimonial or otherwise inadmissible hearsay—evidence that Eberhart was a gang member and intended to benefit a criminal street gang, and evidence of the pattern of criminal gang activity required to establish that the KUMI gang met the statutory definition of a criminal street gang. (See § 186.22, subd. (e).)
At the outset, we observe that the People claim Eberhart forfeited his challenge to the gang expert's testimony by failing to object at trial. We disagree. "Any objection would likely have been futile because the 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).) We will therefore address the merits of the claim. As we explain, although we conclude that a narrow portion of the gang expert's testimony may have been barred by the confrontation clause and state hearsay law, the erroneous admission of that testimony was harmless beyond a reasonable doubt. 1. Governing Legal Principles as Clarified by Sanchez
The Sixth Amendment to the federal Constitution guarantees a defendant's right to confront adverse witnesses. (U.S. Const., 6th Amend.; People v. Lopez (2012) 55 Cal.4th 569, 576.) In Crawford, the United States Supreme Court held that the prosecution may not rely on testimonial hearsay unless the declarant is unavailable to testify, and the defendant had a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 59, fn. 9.) " '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." (Evid. Code, § 1200, subd. (a).)
In Sanchez, the court considered the extent to which Crawford "limits an expert witness from relating case-specific hearsay in explaining the basis for an opinion, and it clarified the application of the state hearsay rules to that kind of expert testimony." (Meraz, supra, 6 Cal.App.5th at p. 1170.) The Sanchez court held that "case-specific out-of-court statements conveyed by the prosecution's gang expert constituted inadmissible hearsay under state law, and to the extent they were testimonial, ran afoul of Crawford." (Ibid.)
The Sanchez court distinguished between an expert's testimony as to general background information and case-specific facts. Case-specific facts are "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. 676.) An expert may testify about generalized information, even if technically hearsay, in order to help jurors understand the significance of case-specific facts, or the expert may offer an opinion about what certain case-specific facts mean. (Ibid.) "The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge." (Ibid.) The court gave several examples of the distinction between generalized and case-specific information, one of which pertains directly to gang experts: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to a gang." (Id. at p. 677.)
If an expert testifies as to case-specific out-of-court statements, the statements are only admissible if they fall within an applicable hearsay exception. (Sanchez, supra, 63 Cal.4th at p. 684.) "Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." (Ibid.)
As clarified in Sanchez, a court's task in evaluating out-of-court statements under hearsay rules and Crawford is two-fold: "The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations on unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, at 63 Cal.4th at p. 680.) Hearsay statements are considered testimonial if they are made "primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.)
Improper admission of testimonial hearsay in violation of a defendant's right to confront witnesses against him is an error of constitutional magnitude and requires reversal unless the error is harmless beyond a reasonable doubt. (Sanchez, supra, 63 Cal.4th at p. 698; see Chapman v. California (1967) 386 U.S. 18, 24.) If nontestimonial hearsay is improperly admitted, the error is a violation of statutory law and is subject to the state standard for assessing prejudice. (People v. Stamps (2016) 3 Cal.App.5th 988, 997.) Under that standard, reversal is required only if it is reasonably probable that a result more favorable to the defendant would have been achieved in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
2. Eberhart's Intention to Benefit KUMI Gang
A gang enhancement applies to one who commits a felony "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." (§ 186.22, subd. (b)(1).) Eberhart argues there was little to suggest he intended to benefit KUMI other than a gang roster seized from Fulgham's cell and a photograph of him alongside Fulgham that was seized from a validated gang member. He claims the gang expert improperly relied on inadmissible testimonial hearsay in basing his opinion about Eberhart's gang membership on the roster and photograph.
Initially, we observe that gang membership is not an element of the gang enhancement. (Sanchez, supra, 63 Cal.4th at p. 698.) Nevertheless, evidence that a defendant was a member of the gang would bolster a theory that the defendant acted with the intent to benefit his gang. (Ibid.) Here, Eberhart seems to claim that there is no evidence of his KUMI gang membership aside from what he characterizes as testimonial hearsay. He is mistaken.
Even if the gang roster and photograph described by Cavagnolo could be characterized as inadmissible hearsay, they were not testimonial in nature because they were prepared for a purpose other than preserving facts for later use at trial. (See Sanchez, supra, 63 Cal.4th at p. 689.) There is consequently no violation of the confrontation clause. At most, they constitute inadmissible hearsay under state law and were not properly authenticated. (See People v. Beckley (2010) 185 Cal.App.4th 509, 514-518 [discussing authentication of gang roster and photograph].) But any error in admitting Cavagnolo's testimony concerning the gang roster and photograph was harmless.
There was ample admissible evidence before the jury to establish that Eberhart was a member of the KUMI gang. Two lay witnesses both testified based upon their personal knowledge that Eberhart was a high-ranking member of KUMI. The victim's wife, Peppars, testified that Eberhart was a general in KUMI and that her husband, a longtime gang member, feared Eberhart. McCullough testified concerning his long association with both KUMI and Eberhart, and he stated that Eberhart had a rank above him within the gang.
Furthermore, wholly apart from whether Eberhart was actually a member of the gang, the manner in which the prosecutor elicited Cavagnolo's opinion that Eberhart committed the murder and conspired to commit the robbery in order to benefit the KUMI gang was entirely consistent with Sanchez. The prosecutor set forth a detailed hypothetical and asked the gang expert to assume the truth of the scenario before asking whether the assumed facts showed that Eberhart intended to benefit the KUMI gang. The facts the prosecutor asked the expert to assume were supported by admissible evidence offered by other witnesses. That approach is precisely what the Sanchez court cited as a proper way for an expert offer an opinion based upon case-specific information. (Sanchez, supra, 63 Cal.4th at p. 684.)
Consequently, even if it was error to permit the gang expert to testify as to certain case-specific facts regarding Eberhart's gang membership that were premised upon inadmissible hearsay, we conclude there is no reasonable probability Eberhart would have obtained a more favorable result at trial in the absence of the error.
3. Pattern of Criminal Gang Activity
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." (Gardeley, supra, 14 Cal.4th at p. 617; accord, Sanchez, supra, 63 Cal.4th at p. 698; see § 186.22, subds. (e) & (f).) Eberhart contends the prosecution failed to prove a "pattern of criminal gang activity" based upon admissible evidence.
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. Louen (1997) 17 Cal.4th 1, 9-10.) The defendant's commission of the charged crime can serve as one of the two predicate offenses. (Id. at p. 10.) The predicate offenses need not be gang-related or committed for the benefit of the gang but must have been committed by gang members. (Gardeley, supra, 14 Cal.4th at p. 621.)
In this case, the gang expert testified as to predicate offenses committed by three KUMI gang members—Christopher Magudatto, Troy Bridges, and Eric Lee. As to Lee, Eberhart concedes that Cavagnolo did not rely upon testimonial hearsay as the basis for concluding that Lee was a KUMI gang member. However, as to both Magudatto and Bridges, Eberhart contends that Cavagnolo relied upon case-specific hearsay and testimonial hearsay to establish that Magudatto and Bridges were gang members. He also argues that Cavagnolo obviously relied upon police reports in describing the crimes committed by all three gang members. Finally, he contends that Eberhart's convictions for murder or conspiracy to commit robbery cannot serve as one of the predicate offenses because the jury instructions did not enumerate those crimes as ones that could support a pattern of criminal gang activity.
The predicate offenses here were established by admissible, certified court documents. Such official records fall within an exception to the hearsay rule and are not considered testimonial hearsay under Crawford. (Evid. Code, § 1280; see People v. Taulton (2005) 129 Cal.App.4th 1218, 1225.) While the details of the offenses as related by Cavagnolo were probably derived from police reports, which constitute testimonial hearsay (Sanchez, supra, 63 Cal.4th at page 694), that information was completely superfluous. Only the fact of conviction of a predicate offense by a gang member is required by the statute. (§ 186.22, subd. (e).)
It is far from clear that Cavagnolo relied upon testimonial hearsay to support his conclusions that Magudatto and Bridges were KUMI gang members. While he claimed to rely on certain documents or reports, he did not describe what those documents were or whether he had any role in preparing them. Because Eberhart failed to object to the expert's testimony on hearsay or confrontation clause grounds, we have an undeveloped record. We cannot simply assume that the documentation referred to by Cavagnolo was testimonial hearsay. (People v. Ochoa (2017) 7 Cal.App.5th 575, 585.)
To the extent Cavagnolo may have relied upon inadmissible hearsay or testimonial hearsay, Eberhart was not prejudiced as a result. As noted, the predicate offenses are all established by admissible evidence. The dispute is over whether each individual's gang membership is established by admissible evidence.
Eberhart concedes that Lee's gang membership is established by admissible evidence, so Lee's conviction for assault with a firearm qualifies as one of the predicate offenses without dispute. As for Magudatto, the victim's wife testified that she had personally seen her husband greet him with the embrace that was unique to KUMI gang members. There is consequently admissible evidence supporting the conclusion that Magudatto was a KUMI gang member. With respect to Bridges, Cavagnolo testified that he knew "for a fact" that Bridges had a tattoo signifying KUMI membership. He distinguished that information from that gleaned from written material he had reviewed, indicating that he had personally seen the tattoo. Cavagnolo's assessment that Bridges was a gang member was therefore based at least in part on personal observations. Finally, although the prosecutor chose not to include the charged crimes in the jury instruction defining pattern of criminal gang activity, the offenses of conspiracy to commit robbery and first degree murder unquestionably qualify as predicate offenses for purposes of establishing a pattern of criminal gang activity under section 186.22, subdivision (e). (See § 186.22, subd. (e)(2) & (3) [robbery & unlawful homicide]; People v. Louen, supra, 17 Cal.4th at p. 10 [charged offenses may serve as one of predicate offenses].) As discussed above, there is ample admissible evidence that Eberhart was a KUMI gang member at the time he committed the charged crimes. In short, there is more than sufficient admissible evidence that KUMI gang members committed the requisite number of predicate acts to establish a pattern of criminal gang activity, even without considering any testimonial or other inadmissible hearsay that might have been relied upon by Cavagnolo.
Under the circumstances, any violations of the confrontation clause in testimony offered by the gang expert were harmless beyond a reasonable doubt. And, to the extent the gang expert testified as to matters that constituted inadmissible, nontestimonial hearsay, there is no reasonable probability Eberhart would have obtained a more favorable result if that testimony had been disallowed.
DISPOSITION
Following remand from the Supreme Court, the disposition remains unchanged from the disposition contained in our opinion filed on September 1, 2015:
The trial court is directed to modify the abstract of judgment to delete the 5-year gang enhancement (§ 186.22, subd. (b)(1)(B)) associated with count one and to replace it with the 15-year minimum term for parole eligibility required by section 186.22, subdivision (b)(5). The sentence enhancements for a prior strike associated with count one (§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), a prior serious felony (§ 667, subd. (a)(1)), and prison priors (§ 667.5, subd. (b)) are reversed. The matter is remanded for a retrial of the prior conviction allegations and for resentencing.
In all respects, the judgment is affirmed. The petition for a writ of habeas corpus is denied.
/s/_________
McGuiness, P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.