Opinion
G052705
10-25-2017
THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO CHARCAS FERNANDEZ, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Theodore M. Cropley and Danile J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10CF2335) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Theodore M. Cropley and Danile J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Santa Ana police officers saw a person conduct a hand-to-hand drug sale out of a passenger window of a car; defendant Marco Antonio Charcas Fernandez was the driver of the car. A jury convicted defendant of three crimes involving the sale and possession of narcotics and the crime of being an active gang member. The jury also found true three gang enhancements.
Defendant claims that the People's gang expert related hearsay statements to the jury in violation of our state's Evidence Code, as well as testimonial hearsay in violation of the federal Constitution's confrontation clause. (People v. Sanchez (2016) 63 Cal.4th 665, 686 (Sanchez).) Defendant also claims the evidence was insufficient to support the substantive gang crime and the gang enhancements.
The trial court erred by allowing the gang expert to relate inadmissible hearsay statements (some of them testimonial) to the jury. This is not surprising. Defendant's trial took place before Sanchez, which represented a "paradigm" shift regarding the admissibility of expert testimony. (Sanchez, supra, 63 Cal.4th at p. 679.) However, the error was harmless beyond a reasonable doubt. There was also sufficient evidence to support the gang offense and the gang enhancements.
Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On August 13, 2010, at about 3:00 p.m., Santa Ana Police Officers Peter Picone and Dominick Padilla drove to a restaurant on the corner of Edinger Avenue and Harbor Boulevard in Santa Ana. As they pulled into the parking lot, Picone saw a woman leaning into a front passenger window of a parked car; two men were sitting in the front of the car. When the woman saw the police, she hurriedly jumped into the backseat of the car and it quickly drove away.
The officers followed the car for a short distance. When the car briefly stopped, the woman got out. Officer Padilla also got out of the police vehicle and followed the woman on foot. She had a small, blue baggie on her person. Later tests revealed that the baggie contained 7.5 grams of methamphetamine.
Officer Picone continued to follow the car and he eventually initiated a traffic stop. Defendant was the driver; Mario Lopez was the passenger. Picone searched defendant and found $1,250 in cash and two cell phones. During the traffic stop, Picone answered one of the cell phones; the caller wanted to pick up a quarter ounce of crystal. A later search of defendant's bedroom revealed methamphetamine, $1,624 in cash, a glass pipe, and a scale.
Officer Padilla spoke to defendant after his arrest. Defendant admitted selling methamphetamine and that he was a member of the Middleside street gang (Middleside). Defendant said that Lopez was his friend and that he knew Lopez from the neighborhood. Padilla spoke to Lopez, who said that he used to run with Middleside, but he does not anymore. Lopez had a Middleside gang tattoo on his back.
Expert Testimony
Santa Ana Police Officer Armando Chacon testified as the prosecution's gang expert. Chacon had been a law enforcement officer for more than 10 years and had been with the gang unit for over five years. Chacon had investigated over 1,000 gang-related crimes. Chacon had written over 10 gang-specific search warrants and had testified as a gang expert over 30 times. Chacon received over 200 hours of gang training and was an instructor for his department's advanced gang course.
Officer Chacon testified to the following. He said that "respect" is an important concept in gang culture and gang members gain respect by committing crimes. Gang members will generally not commit crimes with people who are not affiliated with the gang. Gang members generate income for the gang through "a variety of illegal activities." Profits are shared with the gang. "[I]n order to sell those narcotics, a tax is imposed. They need to pay profits in order to sell narcotics." Hispanic criminal street gangs are turf oriented; a gang's territory is an area where gang members usually conduct illegal activities. However, Chacon said that gang members also commit crimes outside of their territory when the opportunity arises and to gain further respect. Gang members "back up" other gang members in order to facilitate the commission of crimes. Chacon said that all gang members are expected to "put in work" for the gang.
Officer Chacon opined that Middleside is a criminal street gang. Chacon testified to the following. Chacon said that the gang has about 40 members who claim territory on the west side of Santa Ana. The gang's territory includes "north Harbor from First Street to Edinger." The restaurant at Edinger and Harbor is "across the street" from the southern part of Middleside's territory, in an area not claimed by any gang. Middleside has a designated color, common dress style, and symbols. Its primary activities are felony firearm possession, robbery, and auto theft. Chacon testified that two predicate crimes had been committed by two alleged Middleside gang members (not defendant and Lopez).
Officer Chacon also opined that defendant and Lopez were both active members of Middleside. Chacon testified that he was personally familiar with Lopez, who told Chacon that he had been "jumped into the gang" and had been hanging out with the gang since he was 11 years old. Chacon testified that he was not personally familiar with defendant. Chacon said that prior to his testimony, he conducted a background search on defendant, including a review of field interview (FI) cards, Street Terrorism Enforcement and Protection (STEP) notices, and police reports.
In a hypothetical question summarizing the prosecution's evidence, Officer Chacon opined that defendants' alleged conduct was consistent with a person acting in association with, and attempting to benefit and promote the Middleside gang. Defendant rested without presenting an affirmative defense.
Court Proceedings
A jury convicted defendant of three offenses related to the sale and possession of methamphetamine (conspiracy, possession for sales, and transportation). (Pen. Code, § 182; Health & Saf. Code, §§ 11378, 11379.) The jury also convicted defendant of a substantive gang offense and found true three gang enhancements attached to each of the three narcotics offenses. (§ 186.22, subds. (a) & (b)(1).) The court imposed an aggregate 11-year prison sentence.
Further undesignated statutory references will be to the Penal Code.
II
DISCUSSION
Defendant contends that: (A) Officer Chacon's expert testimony included case-specific testimonial hearsay, and (B) there was insufficient evidence to support the gang offense and enhancements. We shall address each contention in turn. A. Officer Chacon's Expert Testimony
"An opinion is an inference from facts observed. One of the fundamental theories of the law of evidence, expressed in the opinion rule, is that witnesses must ordinarily testify to facts, leaving inferences or conclusions to the jury or court." (1 Witkin, Cal. Evidence (5th ed. 2012) Opinion Evidence, § 1, p. 608.) However, when a subject is beyond the common experience of a jury and an expert's testimony would assist the jury in arriving at a decision, a trial court may generally allow the jury to hear and evaluate the opinion of a qualified expert witness. (Evid. Code, § 801, subd. (a).)
1. The Sanchez Opinion Fundamentally Changed the Law Regarding the Admission of Expert Testimony.
California law permits an expert witness to relate to the jury the "matter" upon which his opinion relies, even if that matter would otherwise be inadmissible in court. (Sanchez, supra, 63 Cal.4th at p. 679.) Prior to Sanchez, when defendant was tried and convicted, an expert was permitted to relate "case-specific hearsay" to the jury, on the theory it was not being admitted for the truth of the matter asserted, but instead merely to explain the basis for the expert's opinion. (Id. at pp. 673, 683.)
However, the California Supreme Court has held that this "paradigm is no longer tenable." (Sanchez, supra, 63 Cal.4th at p. 679.) The Sanchez court said that, "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. 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." (Id. at p. 684, fn. omitted.) Further, Sanchez also noted that the admission of testimonial hearsay through an expert witness is also subject to the Sixth Amendment's confrontation clause, which may be violated, "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. [Citations.]" (Id. at p. 680.)
Consequently, "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. 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?" (Sanchez, supra, 63 Cal.4th at p. 680.) While an expert can, in a general sense, communicate hearsay statements to a jury to establish the basis of his opinion, "[w]hat an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.)
The second step of the Sanchez analysis concerns statements offered against criminal defendants. "If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford [v. Washington (2004) 541 U.S. 36 (Crawford)] limitations of 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." (Sanchez, supra, 63 Cal.4th at p. 680.) The United States Supreme Court has not always been entirely clear as to what constitutes testimonial hearsay. (People v. Holmes (2012) 212 Cal.App.4th 431, 437.) Nevertheless, at a minimum, testimonial hearsay includes formalized testimony, "statements made in response to police interrogations if there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution [citations]; and sworn affidavits that are admitted in lieu of live testimony [citation]." (Ibid.)
Sanchez discussed three types of evidence typically relied upon by gang experts to form the basis of their opinions: police reports, STEP notices, and FI cards. Police reports are testimonial hearsay because they relate "information gathered during an official investigation of a completed crime" and not "made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at p. 694.) STEP notices are testimonial hearsay because they are prepared primarily "to establish facts to be later used against [the defendant] or his companions at trial." (Id. at p. 696.) FI cards may also constitute testimonial hearsay, but only to the extent they are produced in an ongoing criminal investigation. (Id. at p. 697.)
As far as analyzing the prejudicial impact of improperly introduced hearsay evidence under Sanchez, if the expert's testimony violates the Evidence Code alone, we are to apply the reasonable probability of a more favorable result standard of review under People v. Watson (1956) 46 Cal.2d 818, 837 (Watson). But if the error also implicates a defendant's federal constitutional rights, we must apply the more rigorous harmless beyond a reasonable doubt standard under Chapman v. California (1966) 386 U.S. 18, 24 (Chapman). (Sanchez, supra, 63 Cal.4th at p. 698.)
In this case, the Attorney General generally maintains defendant forfeited his claims of error under Sanchez because he failed to object on hearsay grounds to the relevant aspects of Officer Chacon's testimony at trial. However, defendant's trial took place about a year before the Sanchez opinion. "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, 237-238.) The California Supreme Court's decision in Sanchez represented a significant change in substantive law regarding expert testimony. Under these circumstances, the Attorney General's forfeiture argument is unpersuasive.
2. Officer Chacon Related Hearsay Statements to the Jury.
Officer Chacon testified that he was not personally familiar with defendant, but he opined defendant was an active member of the Middleside gang on the day of the alleged offenses. Chacon based his opinion on defendant's prior contacts with the police. Chacon related to the jury four prior police contacts; two occurred in 2003, one in 2005, and another in 2009: "When I conducted that background search, I found a few documents specific to the defendant. [In 2003, the] defendant was contacted with another Middleside gang member. That Middleside gang member . . . had a large tattoo, a gang tattoo across his chest. A firearm was recovered from the vehicle being driven by defendant. [¶] A few months later in 2003, the defendant was once again driving a vehicle. They were contacted in rival territory . . . . [T]he other individual in the car, was another documented Middleside gang member. Another firearm was recovered from the vehicle. Statements were made by defendant showing his affiliation to the gang. [¶] In 2005, the defendant was contacted with another individual . . . in that investigation, statements were also made by defendant showing his affiliation with the gang." Chacon also testified that "in 2009, a S.T.E.P. notice . . . was filled out for the defendant. The defendant commented that he had been kicking back with the gang since he was 20, and he stated he - 'I am Marco from Middleside.'"
Here, in each of defendant's four prior contacts with the police, Officer Chacon related the statements of other police officers. The other officers' statements were specific to defendant, and they were being offered as true. Therefore, based on the first step of a Sanchez analysis, all of Chacon's testimony as to defendant's gang membership constituted case-specific inadmissible hearsay.
Regarding the next step of the Sanchez analysis, only two of defendant's prior contacts with the police involved testimonial statements. In the second police contact in 2003, "Statements were made by the defendant showing his affiliation to the gang." Although Officer Chacon did not explicitly state that defendant's statements had been memorialized in a police report, it is apparent that defendant's statements were made during the investigation of a crime (a firearm was found in a vehicle defendant was driving). In the fourth police encounter in 2009, "The defendant commented that he had been kicking back with the gang since he was 20, and he stated [] - 'I am Marco from Middleside.'" Defendant's 2009 comments had been memorialized by a police officer in a STEP notice, which Sanchez held is per se testimonial because such notices are prepared for use in trial. Thus, both of defendant's admissions of his gang membership, which were related to the jury through Chacon, constituted testimonial hearsay.
3. Officer Chacon Did Not Relate Any Hearsay Statements to the Jury While Testifying About Predicate Offenses Committed by Other Alleged Gang Members.
In order to establish the existence of a criminal street gang, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members engage in, or have engaged in, a pattern of criminal gang activity. (§ 186.22, subd. (f), italics added.) The People generally prove a group's "'pattern of criminal gang activity'" by introducing evidence of "predicate" offenses committed by members of the group. (People v. Gardeley (1996) 14 Cal.4th 605, 621-622.)
Here, the prosecution introduced evidence of predicate offenses committed by Gerardo Gonzalez (felon in possession of a firearm) and Jessica Reyes (robbery). Officer Chacon opined that Gonzalez and Reyes were both active members of Middleside on the date of their offenses.
As to Gonzalez, Officer Chacon's opinion was "based on my personal knowledge of Mr. Gonzalez and his family, in reviewing the police report attached to the court packet, as well as . . . the plea forms listed therein." As to Reyes, Chacon's opinion was "[b]ased on the few contacts I've had with Ms. Reyes as well as review of the court packet including . . . the police report attached to that court document." The "court packets" were admitted into evidence without objection. The packets included plea forms, accusatory pleadings, and other documents that substantiated the crimes committed by Gonzalez and Reyes, but the court packets did not include the underlying police reports.
We directed the superior court send us the two court packets (exhibit Nos. 17 and 18), which we reviewed. (Cal. Rules of Court, rule 8.224(d).)
As appellate briefing proceeded in this court, another California Court of Appeal held that a gang expert's testimony regarding predicate crimes may also constitute inadmissible, case-specific testimonial hearsay within the meaning of Sanchez, supra, 63 Cal.4th 665. (People v. Ochoa (2017) 7 Cal.App.5th 575 (Ochoa).) As a result, we invited the parties to submit supplemental briefs.
Defendant argued, "Chacon's testimony regarding Gonzalez and Reyes constituted error under both the confrontation clause of the Sixth Amendment and under the state hearsay law." The Attorney General argued, "There was no violation of the confrontation clause or state hearsay law because the gang expert did not relay the content of the police reports to the jury." We agree with the Attorney General.
In Sanchez, the California Supreme Court defined case-specific facts as "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, italics added.) The italicized portion of the quotation would seem to exclude from consideration—as case-specific facts—any statements by Gonzalez and Reyes because they were not involved in defendant's case. However, Sanchez concerned a hearsay challenge only as to out-of-court statements made by the defendant. (Id. at pp. 672, 674.) The Sanchez court briefly mentioned that the gang expert "testified about convictions suffered by two Delhi [gang] members to establish that Delhi [gang] members engage[d] in a pattern of criminal activity." (Id. at p. 672.) But the court did not consider any issues relating to the predicate offenses. (People v. Delgado (2017) 2 Cal.5th 544, 590 ["'It is axiomatic . . . that a decision does not stand for a proposition not considered by the court'"].)
In contrast, the Ochoa court directly considered the issue of predicate offenses. (Ochoa, supra, 7 Cal.App.5th at p. 586.) In Ochoa, a jury convicted the defendant of several crimes including residential burglary and threatening public officers and employees. (Id. at p. 578.) The jury also found true two related gang enhancements. (Ibid.) At trial, the prosecution's gang expert, Corporal Kindorf, testified as to predicate crimes committed by other gang members. (Id. at pp. 582-583.) "[T]he prosecution submitted into evidence records of convictions of various persons that Corporal Kindorf opined were [South Side Locos] members." (Id. at p. 581.) "As to many of the individuals, he reported they had admitted being members of the SSL and/or the Sureños; sometimes it was unclear to whom the admissions were made—whether to Kindorf or to another officer in unidentified circumstances—and other times it was clear Kindorf was relating admissions that appeared in police reports." (Id. at p. 582, italics added.) The Ochoa court concluded that the statements made by the individuals involved in the predicate offenses were case specific. "It seems clear the hearsay statements at issue in the present case—out-of-court statements by individuals admitting being members of the [South Side Locos]—are case-specific hearsay rather than general background information about the [South Side Locos]." (Id. at pp. 588-589, italics added.)
We agree with the above analysis. That is, when a gang expert relates to the jury statements made by other gang members in order to establish the predicate crimes of the defendant's alleged gang, those statements constitute case-specific testimonial hearsay under Sanchez. However, that is not what happened in this case. Officer Chacon did not relate any statements made by either Gonzalez or Reyes in order to establish the predicate offenses. In Sanchez, our Supreme Court held that an expert may continue to "rely on hearsay in forming his opinion and may tell the jury in general terms that he did so." (Sanchez, supra, 63 Cal.4th at p. 685.) The expert may also "relate generally the kind and source of the 'matter' upon which his opinion rests." (Id. at p. 686.) However, what an expert "cannot do is present, as facts, the content of testimonial hearsay statements." (Id. at p. 685, italics added.)
Again, Officer Chacon opined that Gonzalez and Reyes were members of Middleside. As to Gonzalez, Chacon's opinion was generally "based on my personal knowledge of Mr. Gonzalez and his family, in reviewing the police report attached to the court packet, as well as . . . plea forms listed therein." As to Reyes, Chacon's opinion was generally "[b]ased on the few contacts I've had with Ms. Reyes as well as review of the court packet including . . . the police report attached to that court document." Here, unlike the gang expert in Ochoa, Chacon did not relate to the jury any statements made by other documented gang members. Rather, Chacon properly stated that he had relied on the police reports and other "matter" in general terms in forming his opinion. (Sanchez, supra, 63 Cal.4th at p. 679.) Thus, there were no hearsay statements by Gonzalez or Reyes (testimonial or otherwise) that were related to the jury through Chacon's expert testimony.
4. Officer Chacon's Inadmissible Testimony Was Harmless Beyond a Reasonable Doubt.
Having concluded that Officer Chacon's case specific testimony regarding defendant's gang membership was admitted in violation of state law, and some of it was also admitted in violation of the federal Constitution, we need to evaluate the prejudicial cumulative effect of this testimony under the Chapman standard of review. (People v. Woods (2006) 146 Cal.App.4th 106, 117-119; Sanchez, supra, 63 Cal.4th at pp. 698-699.) "To find the error harmless we must find beyond a reasonable doubt that it did not contribute to the verdict, that it was unimportant in relation to everything else the jury considered on the issue in question. [Citations.]" (People v Song (2004) 124 Cal.App.4th 973, 984.)
"To establish that a group is a criminal street gang . . . , the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity." (People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran ).) "A 'pattern of criminal gang activity' is defined as gang members' individual or collective 'commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more' enumerated 'predicate offenses' during a statutorily defined time period. [Citations.]" (Ibid.)
Here, Officer Chacon opined that Middleside met the statutory definition of a criminal street gang. He testified that the Middleside has about 40 members, who share a common dress style and symbols. Chacon said that group's primary activities are felony firearm possession, robbery, and auto theft. Further, Chacon testified to two predicate crimes that had been committed by Gonzalez and Reyes. None of this testimony was based on inadmissible case-specific hearsay; thus, we need not evaluate its prejudicial effect under Chapman.
The elements of the substantive gang offense are: (1) "active participation in a criminal street gang, in the sense of participation that is more than nominal or passive"; (2) "knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity"; and (3) "the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).)
"The gravamen of the [street terrorism offense] is active participation in a criminal street gang." (People v. Albillar (2010) 51 Cal.4th 47, 55 (Albillar).) "To prove active participation, it is not necessary to show that the defendant devoted all or a substantial amount of his time to the gang. [Citation.] Rather, the prosecution need only prove that defendant's involvement with the gang was 'more than nominal or passive.' [Citations.]" (People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 541 (Villa-Gomez).) "A person who is not a member of a gang, but who actively participates in the gang, can be guilty of violating section 186.22[, subdivision] (a)." (Rodriguez, supra, 55 Cal.4th at p. 1130.)
A defendant's knowledge that the gang's members engage in a pattern of criminal activity is inferable from the same evidence that shows his or her active participation in the gang. (People v. Carr (2010) 190 Cal.App.4th 475, 489.) "In other words, just as a jury may rely on evidence about a defendant's personal conduct, as well as expert testimony about gang culture and habits, to make findings concerning a defendant's active participation in a gang or a pattern of gang activity, it may also rely on the same evidence to infer a defendant's knowledge of those activities." (Ibid., fn. omitted.)
"Applying the third element of section 186.22 [subdivision] (a), a defendant may be convicted of the crime of gang participation only if he also willfully does an act that 'promotes, furthers, or assists in any felonious criminal conduct by members of that gang.'" (Rodriguez, supra, 55 Cal.4th at pp. 1130-1131.) To that end, it requires participation in the "felonious criminal conduct" of at least one other gang member. (Id. at p. 1131.) The phrase "willful promotion, furtherance, or assistance" has been equated with aiding and abetting. (People v. Castenada (2000) 23 Cal.4th 743, 749.) Therefore, the third element is satisfied when there is substantial evidence of aiding and abetting a felony offense. (Rodriguez, supra, 55 Cal.4th at pp. 1130-1131.) Further, the felonious criminal conduct that is promoted, furthered, or assisted, does not have to be gang related. (Albillar, supra, 51 Cal.4th at p. 55.)
Here, Officer Chacon opined that defendant was an active member of Middleside when he committed the drug offenses, though Chacon had never met defendant. Again, Chacon based his opinion entirely on the hearsay statements of other police officers, and the defendant's own statements, which were related to the jury in violation of his constitutional rights. However, what is particularly critical to our Chapman analysis is that defendant admitted to Officer Padilla that he had sold the methamphetamine and that he was a member of Middleside. Padilla testified at trial and was subject to cross-examination. Further, other admissible evidence overwhelmingly established the elements of the substantive gang offense.
Officer Chacon opined that defendant's accomplice in the narcotics sales, Lopez, was another member of Middleside. Chacon testified that he had had multiple personal contacts with Lopez, who had a gang tattoo. Lopez had also told Chacon that he had been "jumped into the gang" and had been hanging out with the gang since he was 11 years old. Defendant did not object to Lopez's hearsay statements at trial, nor does he challenge this portion of Chacon's testimony on appeal. Chacon also generally testified gang members will usually not commit crimes with people who are not affiliated with the gang, and gang members generally "back up" other gang members in order to facilitate the commission of crimes. Further, Chacon testified that gang members are ordinarily expected to "put in work" for the gang, and the drug sale witnessed by the arresting officers took place just over the border of Middleside's turf.
The above admissible evidence plainly established that on August 13, 2010, defendant, a self-admitted gang member, actively participated in the sale of narcotics with another self-admitted Middleside gang member on the border of their gang's turf. Defendant's participation was much more than nominal or passive. Although defendant did not directly admit that he knew that members of his gang had engaged in a pattern of criminal gang activity, defendant's admission of his gang membership, his active participation in narcotics sales, and Officer Chacon's admissible testimony circumstantially established this element. Finally, defendant satisfied the third element of the gang offense by aiding and abetting Lopez, another Middleside gang member, in felonious conduct: the sales of narcotics in gang territory.
There are two elements to a gang enhancement: 1) the crime must be "committed for the benefit of, at the direction of, or in association with any criminal street gang"; and 2) the defendant must harbor "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) The gang enhancement "'requires only the specific intent to promote, further, or assist criminal conduct by gang members'"; '"[t]here is no further requirement that the defendant act with the specific intent to promote, further, or assist the gang.'" (People v. Leon (2016) 243 Cal.App.4th 1003, 1021 (Leon).) "Specific intent may be, and usually must be, inferred from circumstantial evidence." (People v. Cole (1985) 165 Cal.App.3d 41, 48 (Cole).) The defendant does not have to be an active or current gang member in order to prove the enhancement. (Villa-Gomez, supra, 9 Cal.App.5th at pp. 539-540.) "Gang membership is simply circumstantial evidence establishing that the crime was gang related and a motive for why a defendant may have harbored the 'specific intent to promote, further, or assist in any criminal conduct by gang members.' [Citations.]" (Id. at p. 540.)
Here, much of the same admissible evidence that supports the substantive gang offense overwhelmingly supports the gang enhancements. Again, Officer Chacon generally testified that Middleside gang members engage in the sales of narcotics to generate income for the gang. Chacon's testimony also established that the methamphetamine sales and possession offenses in this case occurred just on the border of Middleside's gang territory. Therefore, while there was no direct evidence of defendant's specific intent to benefit and promote, further, or assist criminal conduct by Middleside gang members, there was circumstantial evidence of defendant's intent. Thus, Chacon's inadmissible testimony was harmless beyond a reasonable doubt.
To summarize, Officer Chacon did relate inadmissible testimonial hearsay statements to the jury. However, we find beyond a reasonable doubt that the evidentiary error did not prejudicially taint the jury's verdicts or findings under Chapman. This finding is supported by defendant's admission to Officer Padilla, as well as the other circumstantial evidence. B. Sufficiency of the Evidence as to the Substantive Gang Offense and Enhancements
In a challenge to the sufficiency of the evidence, "we 'review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]'" (People v. Sandoval (2015) 62 Cal.4th 394, 423.)
Within the STEP Act, the Legislature has made criminal the acts of those who participate in criminal street gangs. (See § 186.20 et seq.) The STEP Act defines a criminal street gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal" that has "as one of its primary activities the commission of one or more" statutorily enumerated criminal offenses and through its members "engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) The STEP Act created both a substantive gang offense and a sentencing enhancement that attaches to other underlying offenses. (§ 186.22, subds. (a) & (b)(1).)
As stated in the earlier prejudice analysis, there are three elements to a substantive gang offense: 1) active participation in a criminal street gang; 2) knowledge that the gang's "members engage in or have engaged in a pattern of criminal gang activity"; and 3) the willful promotion, furtherance, or assistance "in any felonious criminal conduct by members of that gang." (§ 186.22, subd. (a); Rodriguez, supra, 55 Cal.4th at pp. 1138-1139.) The crime "requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." (Id. at p. 1132.)
Again, Officer Chacon testified that Middleside was an ongoing group of about 40 members whose primary activities are felony firearm possession, robbery, and auto theft. Chacon also testified as to two predicate crimes committed by Gonzalez and Reyes. Defendant admitted to Officer Padilla that he was a member of the Middleside gang. The evidence also showed that defendant actively participated in the crimes of selling and possessing methamphetamine with Lopez, another self-admitted Middleside gang member on the border of the gang's territory. Based on this evidence, there was a reasonable inference that defendant knew that his fellow Middleside gang members had engaged in a pattern of felonious criminal conduct and that he willfully furthered and assisted in that conduct by committing narcotics offenses with Lopez. Thus, there was sufficient evidence supporting the substantive gang crime.
To repeat, there are two elements to a gang enhancement: 1) the crime must be "committed for the benefit of, at the direction of, or in association with any criminal street gang"; and 2) the defendant must harbor "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) The sentencing enhancement "'requires only the specific intent to promote, further, or assist criminal conduct by gang members'"; '"[t]here is no further requirement that the defendant act with the specific intent to promote, further, or assist the gang.'" (Leon, supra, 243 Cal.App.4th at p. 1021.) "Specific intent may be, and usually must be, inferred from circumstantial evidence." (Cole, supra, 165 Cal.App.3d at p. 48.)
Again, Officer Chacon generally testified that gang members engage in the sales of narcotics to generate income for the gang. He also testified that gang members who sell narcotics are generally expected pay taxes to the gang. Chacon's testimony also established that the methamphetamine sales and possession offenses in this case occurred just on the border of Middleside's gang territory. Therefore, while there was no direct evidence of defendant's specific intent to benefit and promote, further, or assist criminal conduct by Middleside gang members, there was circumstantial evidence of defendant's intent. Thus, there was sufficient evidence to support the gang allegations.
Defendant contends that: "A gang expert's testimony alone is insufficient to find an offense gang related." However, in this case there was evidence beyond Officer Chacon's expert testimony, and the cases defendant primarily relies on in support of that proposition, People v. Ochoa (2009) 179 Cal.App.4th 650 and In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.) are readily distinguishable.
In People v. Ochoa, supra, 179 Cal.App.4th at page 653, a gang member who was acting alone committed a carjacking with a shotgun outside of his gang's territory. A divided appellate court found the evidence insufficient to sustain the gang enhancements. "[N]othing in the circumstances of the instant offenses sustain the expert witness's inference that they were gang related." (Id. at pp. 661-662.) "[The gang expert's testimony] was based solely on speculation, not evidence. An appellate court cannot affirm a conviction based on speculation, conjecture, guesswork, or supposition." (Id. at p. 663.)
Here, unlike the gang expert's testimony in People v. Ochoa, supra, 179 Cal.App.4th 650, Officer Chacon did not base his testimony on mere speculation. Defendant admitted to Officer Padilla that he was selling methamphetamine and he was a member of Middleside. Defendant also committed his crimes in association with another Middleside gang member, Lopez. Further, the drug transaction took place immediately adjacent to Middleside's territory. Thus, there was evidence beyond mere speculation to support Chacon's opinion that defendant's methamphetamine sales, conspiracy, and possession crimes were gang related.
In Daniel C., supra, 195 Cal.App.4th at pages 1353-1354, the defendant and two other young men, all wearing red, went into a store. Two of the defendant's companions were gang members, and the defendant was an "affiliate." After his companions left the store, the defendant took a bottle of liquor and left without paying. (Id. at pp. 1353-1355.) A store employee confronted the defendant, who then broke the bottle and attacked the employee with the broken bottle. The defendant then escaped in a vehicle with the other young men. (Id. at pp. 1353-1354.) A gang expert testified that the robbery was "gang related" based on the defendant's gang membership, the coordinated actions of the young men, the fact that they were wearing red, and the fact that crowbars and a baseball bat were found in the vehicle. (Id. at p. 1356.) The court found the evidence insufficient to support the specific intent element of the gang enhancement allegation because there was no evidence that the defendant had acted "in concert" with his companions. Consequently, as the defendant was not himself a gang member, he could not have intended to assist "gang members" in committing the robbery (which the court concluded that he perpetrated alone), and the specific intent element therefore lacked evidentiary support. (Id. at pp. 1361-1364.)
Here, in the restaurant parking lot, Officers Picone and Padilla observed defendant driving a vehicle, while his passenger Lopez—an admitted Middleside gang member—engaged in a hand-to-hand sale of methamphetamine. Therefore, unlike the defendant in Daniel C., who committed the robbery alone, defendant was acting "in concert" with another Middleside gang member while he committed his narcotics offenses. In sum, there was sufficient evidence to support the substantive gang offense as well as the gang enhancements.
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.