Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF3296 James Patrick Marion, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Michael Murphy and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
An information charged Enio Hernandez with driving recklessly while evading a peace officer (Veh. Code, § 2800.2; count 1), being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count 2), carrying a loaded firearm while being an active participant in a criminal street gang (§ 12031, subd. (a)(1), (a)(2)(c); count 3), street terrorism (§ 186.22, subd. (a); count 4), aggravated trespassing for the benefit of a criminal street gang (§§ 186.22, subd. (d), 602.5, subd. (b); count 5) and resisting a peace officer for the benefit of a criminal street gang (§§ 148, subd. (a)(1), 186.22, subd. (d), count 6). It was further alleged he committed counts 1, 2, and 3 for the benefit of, at the direction of, and in association with the Los Wickeds criminal street gang (§ 186.22, subd. (b)(1)), and that he had served three prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
Following a jury trial, Hernandez was convicted of evading a police officer, being a convicted felon in possession of a firearm, being a gang member in possession of a loaded firearm, trespassing, and resisting arrest. The jury found not true the criminal street gang enhancement as it applied to count 1, but true with respect to counts 2 and 3, the gun-related charges. The court dismissed count 4 on the prosecutor’s motion. The court found true the prior prison term enhancements and sentenced Hernandez to a total term of 10 years 8 months.
On appeal, Hernandez challenges the judgment on the following grounds: (1) sufficiency of the evidence to support the jury’s true finding on the gang enhancements related to counts 2 and 3; (2) the gang expert’s reliance on police reports, STEP notices, and field interview (FI) cards; (3) the legality of convictions for both possession of a firearm by a felon and carrying a loaded firearm while an active participant in Los Wickeds; (4) sufficiency of the evidence to support the trial court’s true finding on one of the prior prison term allegations; (5) the prosecutor’s reliance on documentary evidence to prove the truth of the prior convictions; and, (6) the constitutionality of section 969b. We find no merit in any of these contentions and affirm the judgment.
Section 186.22, enacted in 1989 and operative in 1993, is part of the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act.
I. FACTS
The Crimes
Around 8:30 p.m. on November 18, 2008, Santa Ana Police Officers Mary Campuzano and Matthew Brown saw Hernandez driving west on Third Street in Santa Ana. As they followed Hernandez, he twice failed to activate his turn signal, which initiated a traffic stop. Hernandez did not yield to the officers show of authority. Instead he accelerated from approximately 35 miles per hour to between 55 and 60 miles per hour and weaved into the oncoming lanes of traffic. Eventually, he crashed into a parked car. Once the car stopped, Hernandez immediately got out and ran from the scene.
The officers gave chase and saw Hernandez run into the courtyard of an apartment complex. He jumped a couple of fences, doubled back in his tracks and then tried to break into one of the apartments. He was eventually located hiding under a different apartment’s semi-covered patio and arrested.
After securing Hernandez, the officers returned to his crashed car and conducted a search. They found a modified shotgun and a cell phone lying on the passenger side floorboard. There was a blue bandana in the rear window, and a notebook containing what appeared to be gang-related writings on the rear seat.
In a statement, Hernandez denied any knowledge of the gun in his car. He told investigators he had loaned his car to a friend, and the friend must have left the gun behind.
Prosecution’s Gang Expert
Tustin Police Detective Nicholas Lopez testified as the prosecution’s gang expert. He explained various concepts that are integral to Hispanic criminal street gangs such as a tendency to claim various neighborhoods as their turf, mark this turf with graffiti, and then control it through violence and the threat of violence. He also testified that gang members use tattoos to show gang allegiance, and he explained the importance of respect and how the commission of crimes plays into the garnering of individual and collective respect and an increase in standing within the gang community. Moreover, the gang members use of firearms in the commission of crimes was described as a way to garner financial support for the gang, and a way to retaliate against rival gangs.
Lopez also limned the method gangs use to add members and what an inducted gang member must do to separate from a gang. The method to associate or disassociate from a criminal street gang is the same. According to Lopez, both rituals involve being beaten by current gang members. Lopez testified, “They [gang members] can be jumped out. The same process getting in the gang is the same process getting out of the gang.”
Lopez testified about a number of Hispanic street gangs claiming territory in Tustin. With respect to Los Wickeds, Lopez had personal contacts with members of the gang and discussions with other police officers and Los Wickeds gang members. Lopez described it as a smaller Hispanic street gang that had been formed in early 1994 by two brothers who lived on Lyon Street in Tustin. The gang now claims an area bordered by Alliance Street, Tustin Village Way, Williams Street, Main Street, and McFadden Avenue. Lopez testified to his familiarity with the crimes the gang generally commits (auto theft, auto burglary, and drug sales), their favorite colors (blue and gray), various gang monikers, hand signs, and tattoos.
In order to prove the elements required under section 186.22, Lopez testified about two crimes committed by admitted members of Los Wickeds, a robbery committed in 2006 by Salvador Castro Arvizu and a 2007 auto theft committed by Salvador Elias. The prosecution submitted certified copies of court records in addition to the expert’s testimony.
Lopez stated that he became familiar with Hernandez by reviewing police reports, FI cards and STEP notices. He explained that FI cards are generated by officers who observe and contact individual gang members while STEP notices advise gang members that they are participating in illegal activity through their association with other members of a criminal street gang. With respect to STEP notices, the officers read and advise the individuals of the illegality of their gang activity and ask them to sign and acknowledge the notice. Gang members frequently refuse to sign such notices and their refusal to sign is also noted. Both FI cards and STEP notices are used by police agencies to document gang membership and activities.
Lopez testified he had discussed Hernandez’s gang affiliation with other police officers, and he had reviewed approximately 18 field interview cards and seven or eight STEP notices on Hernandez. According to Lopez’s investigation, Hernandez participated in gang-related activity as early as 2001. By 2008, the year of the current offenses, he had committed several crimes, including assault and auto burglary, with other Los Wickeds gang members, and had numerous other contacts with law enforcement. In 2003, Hernandez told an officer he had been an active participant in Los Wickeds since the age of 15. In 2004, he admitted using the word “Weapon” as his gang moniker, or nickname. In 2005, Hernandez showed off one of his numerous Los Wickeds tattoos and explained the significance of his relationship to the gang. At the time, he also had a current roster of Los Wickeds gang members in his possession.
Hernandez reaffirmed his gang affiliation in 2006 by admitting active participation in the gang, using his gang moniker, “Weapon, ” and showing an officer a tattoo symbolizing his allegiance the gang. He also explained he was called Weapon because “he could defend himself.” In 2007, another FI card was issued by the Tustin Police Department after an officer encountered Hernandez in Los Wickeds’s claimed territory. However, Hernandez told the officer he had moved from the area of Tustin claimed by Los Wickeds to a home in Santa Ana.
In 2008, a Tustin Police officer issued another STEP notice to Hernandez. Hernandez refused to sign the notice, but admitted associating with Los Wickeds, although he said he had not recently seen other gang members. Later in 2008, a Tustin Police officer contacted Hernandez in the heart of Los Wickeds’s claimed territory. The officer issued a STEP notice, which Hernandez refused to sign. Hernandez also said he no longer associated with Los Wickeds.
Lopez also explained the significance of Hernandez’s various tattoos. The word “Sur” tattooed across his torso, indicates allegiance to Southern California Hispanic street gangs in general. Hernandez’s forearms sport the words “Orange” and “County, ” and he has the word “Wickeds” across his upper back. The latter tattoo also identified and disrespected one of Los Wickeds’s rivals, the Los Crooks criminal street gang, by adding lines through the “c” in Wickeds. On his neck, Hernandez has tattoos of the letters “O” and “C” with a star, which Lopez testified demonstrates allegiance to Orange County. Hernandez also has tattoos on his head and left hand that refer to Los Wickeds either directly or through readily identifiable symbolism.
Lopez stated he had studied the notebook and gun found in Hernandez’s car. The notebook contained gang-related writing, including a drawing and salutation to a then-incarcerated Los Wickeds gang member known by the gang moniker, “Youngster.” Lopez also testified the blue bandana found in Hernandez’s car showed his allegiance to Los Wickeds, and Lopez made particular note of the fact the blue bandana was placed in the back window of Hernandez’s car, a place visible to anyone who saw the car. And, finally, Lopez testified the shotgun had been altered and appeared to be of the type frequently shared between gang members.
In Lopez’s opinion, Hernandez was an active participant in the Los Wickeds criminal street gang on November 18, 2008. He based his opinion on Hernandez’s frequent contacts with law enforcement in Los Wickeds’s claimed territory, often in the presence of other Los Wickeds gang members, and the fact an altered shotgun, writing tablet containing gang-related writings, and blue bandana were found in Hernandez’s car at the time of his arrest. As Lopez testified, “The shotgun being used to commit crimes. For being used for offensive and defensive purposes coupled with the graffiti or the gang indicia that was found in the car. Still writing the gang name, in other words.... [S]till writing to the homies who are in prison. Coupled with the bandana in the back window.”
Lopez also opined that Hernandez committed the instant crimes for the benefit of Los Wickeds. He testified the crime of evading police officers benefitted Los Wickeds because if Hernandez had been successful he would have remained on the street. Moreover, Hernandez’s gun possession benefitted the entire gang because it made a weapon available for all gang members. A gang with a gun instills fear in the general public and garners respect from other criminal street gangs. According to Lopez, “The gun promote[s] the criminal enterprise as well. The same with the status. Promoting the gang. Gaining more respect would assist the gang, as well as having that same level of respect.”
When asked about the possibility that a criminal street gang member could simply walk away from the gang, Lopez stated he was unaware of any Los Wickeds member doing that, although he agreed it was possible. In Lopez’s opinion gang members must be jumped out of the gang or move out of the state to disassociate from the gang. Lopez did admit, however, that he had not seen Hernandez in the company of other Los Wickeds gang members in the year prior to his current arrest, and he admitted that Hernandez had apologized for committing the crimes, which would be perceived as a sign of weakness by other gang members. He also conceded that Hernandez was alone and unaccompanied by other gang members when he evaded police through an area not claimed by Los Wickeds, that there was no evidence of a financial benefit to the gang as a result of Hernandez’s crimes, and that there was no evidence any other Los Wickeds gang member had ever possessed or used the altered shotgun found in Hernandez’s car.
Defense Evidence
Hernandez testified on his own behalf. Despite his earlier explanation for the gun in his car, i.e., that a friend left it there after borrowing his car, Hernandez told the jury the police intercepted him on his way to a methamphetamine dealer where he intended to trade the gun for methamphetamine. He claimed the sawed-off shotgun with the pistol grip had been a gift from a friend, although he resisted identifying the friend because he did not want to “get in trouble by saying somebody’s name[.]” He admitted possessing the gun for two years, but claimed he stored it at a neighbor’s house to avoid problems with the police.
He admitted ownership of the notebook found in his car, but stated the gang-related writing was mere “doodling” and simply a letter to his then-imprisoned cousin. He also had an explanation for the blue bandana found in his car: “It’s kind of funny, but this is the truth. As you guys are aware, I had a 1984 Ford Thunderbird. It’s blue. In the back in the rear-view mirror, as you guys are aware if you guys own a car, there are speakers. Well, there’s a certain type of carpeting on the top. So when you’re standing behind me, you’ll notice that it’s kind of — it’s torn apart. So just to me, I like kind of like looks. So it was, to my imagination, blue carpet, a blue bandana. So when you’re standing behind me, it don’t look that ugly. I just wanted to cover the carpeting because it was torn apart. If you were behind me, it was ripped. So I thought maybe I’ll put the blue bandana so it wouldn’t look messed up.”
With respect to the various crimes he committed, Hernandez explained he attempted to escape because he realized that as a parolee he would go to jail if the police caught him with the gun. However, he also claimed to have decided to run and find a place to hide after he crashed the car. He admitted entering one apartment and asking for help, but the occupants told him, “No man, you got to get out of here.” After he jumped several fences and heard a woman scream, Hernandez kneeled down and tried to hide in a backyard. Several officers soon found his hiding place, and they arrested him and took him into custody.
Hernandez asserted he had decided to stop associating with the Los Wickeds gang in 2005. It was then that he moved out of his Tustin neighborhood to a home in Santa Ana and started to work for a concrete company. According to Hernandez, he managed to stay away from the gang lifestyle between 2005 and 2008. When asked if he had been jumped out of the gang, Hernandez said, “To be honest no. I just basically — I just turned my back on them. Like I said, at one time, I had respect and they respected my decision that I chose my family over them. I just never went back to the same crowd. They respected my... answer. I chose my family over them.” He did admit to “associat[ing]” with some of the people in his old neighborhood, but he claimed not all of these people were gang members. He attributed his recent refusal to sign FI cards to the fact that he “got hip to what those [] cards mean.” He also said, “But the main reason is because I no longer associate with that crowd.” He also testified police officers who contacted him after 2007 did not seem to believe he had disassociated from Los Wickeds.
II. DISCUSSION
1. Sufficiency of the Evidence-Gang Enhancement
The jury convicted Hernandez of being a felon in possession of a firearm and a gang member carrying a loaded firearm, and found true the allegation he committed these crimes for the benefit of, at the direction of, or in association with Los Wickeds with the specific intent to promote further or assist in criminal conduct by Los Wickeds gang members.
On appeal, Hernandez claims the evidence is insufficient to prove (1) his active participation in Los Wickeds at the time of the crimes, (2) his specific intent to promote, further, or assist the Los Wickeds gang, and (3) benefit to Los Wickeds as a result of his crimes. We disagree.
Section 186.22, subdivision (b)(1) states, “[a]ny person who is convicted of a felony 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished....” Thus, the prosecution need not prove active participation in a gang for the imposition of the enhancement.
With respect to the statutory elements of the enhancement, we review such claims under the substantial evidence test. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.) Thus, “[w]e view the evidence in a light most favorable to the judgment. [Citations.]” (Id. at p. 366.) Furthermore, “[T]o prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs. [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.)
Relying on People v. Morales (2003) 112 Cal.App.4th 1176 and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, Hernandez first asserts there is no evidence he “possessed the requisite specific intent to benefit, promote or assist Los Wickeds.” We disagree.
Hernandez cites and discusses People v. Rodriguez (2010) 188 Cal.App.4th 722. However, the Supreme Court granted review in Rodriguez in January 2011. (S0187680)
According to the record, Hernandez has a long-standing relationship with Los Wickeds gang members, both while in and out of prison, and a history of proud involvement in crimes committed by Los Wickeds gang members. On the night in question, he, a convicted felon with prior tours through our prison system, had in his possession a sawed-off shotgun modified with a pistol grip (in this case illegally), a notebook with current Los Wickeds gang-related writings and references, and a blue bandana on display in the back of his car. The gang expert found these facts significant in arriving at the opinion that Hernandez was acting with the specific intent to further the gang’s activities when he drove through this area of Santa Ana.
Moreover, the jury heard Hernandez’s testimony that he disassociated from the gang three or four years before the instant crimes, merely kept possession of the sawed-off shotgun because it had been a gift, that he just happened to think the blue bandana distracted people from his torn interior, and that he only wrote to an imprisoned fellow gang member out of compassion, boredom, and familial duty. However, the jury was free to disregard his testimony on these points and any others. (People v. Hillhouse (2002) 27 Cal.4th 469, 497.)
Citing Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, Hernandez contends the prosecution failed to present sufficient evidence Los Wickeds benefitted from his crimes either directly or indirectly. However, the statute does not call for evidence of actual benefit to the gang. It focuses on the intent of the actor. (People v. Gardeley (1996) 14 Cal.4th 605, 724-725.) As noted above, a reasonable juror could have found true allegations Hernandez continued to be an active participant in the gang and drove a car displaying his gang colors and carrying a loaded shotgun through a Santa Ana neighborhood at night for a reason other than to purchase methamphetamine.
Moreover, the Briceno court acknowledged the importance of direct or circumstantial evidence of the defendant’s intent. (Briceno v. Scribner, supra, 555 F.3d at p. 1081.) Here we have circumstantial evidence of Hernandez’s specific intent to act for Los Wickeds and expert testimony to explain the significance of his involvement in a criminal street gang.
Finally, Hernandez claims the prosecution gang expert’s reliance on police reports, FI cards, and STEP notices in forming his expert opinion violates his Sixth Amendment right to confront adverse witnesses. Relying on In re Alexander (2007) 149 Cal.App.4th 605 (Alexander), Hernandez argues an expert opinion based on such evidence is insufficient to sustain a true finding on the criminal street gang enhancements. His reliance is misplaced.
First, the Alexander court addressed a different component of the gang enhancement, namely the definition of a criminal street gang as set forth in section 186.22, subdivision (f). (Alexander, supra, 149 Cal.App.4th at p. 610.) This aspect of the STEP Act requires proof of an ongoing association of three or more people with a common name, symbol, or sign, proof members of this association commit certain specified crimes as their “primary activity, ” and proof members “have engaged in a pattern of criminal gang activity” as defined in section 186.22, subdivision (e). (§ 186.22, subds. (e), (f).)
Second, in Alexander the sum total of the expert’s testimony on the primary activities element consisted of the following: “‘I know they’ve [the Varrio Viejo criminal street gang] committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Alexander, supra, 149 Cal.App.4th at p. 611.) The Alexander court concluded this testimony lacked specificity, clarity and an adequate foundation for admission into evidence. (Id. at pp. 611-612.) By contrast, here the prosecution elicited evidence of specific crimes from Lopez to establish an adequate foundation for his expert opinion and to support the reliability of his information.
2. Expert Testimony and Hernandez’s Sixth Amendment Right to Confrontation
Hernandez next contends the admission of “unrelated” police reports, STEP notices, and FI cards without calling the officers who prepared the reports and the individuals the officers came into contact with violates his Sixth Amendment right to confront adverse witnesses. Citing Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ (Melendez-Diaz ), Hernandez claims he had a right to confront “each of the witnesses and declarants of the documentary evidence.” We are not persuaded.
First, as Hernandez concedes, there was no objection at trial on this ground. Generally, an appellate challenge to the admission of evidence must be preceded by a timely, specific objection at trial. (Evid. Code, § 353.) However, Hernandez also raises an alternative contention that counsel’s failure to object to evidence on Sixth Amendment grounds constitutes ineffective assistance of counsel. We find the claim meritless, regardless of the analytical framework.
In Crawford, the United States Supreme Court held that the Sixth Amendment bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had... a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. at pp. 53-54; see Melendez-Diaz, supra, 557 U.S. at p. ___; 129 S.Ct. at p. 2531.) The court then defined testimonial statements as “‘ex parte in-court testimony or its functional equivalent, ’” “‘extrajudicial statements... contained in formalized testimonial materials, ’” and “‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” (Crawford, supra, 541 U.S. at pp. 51-52.) However, the court also held that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Crawford, supra, 541 U.S. at p. 59, n. 9.)
In California, “experts may rely upon and testify to the sources on which they base their opinions... including hearsay of a type reasonably relied upon by professionals in the field.” (People v. Cooper (2007) 148 Cal.App.4th 731, 746 (Cooper); see also Evid. Code, §§ 801, subd. (b), 802.) An expert witness’s testimony about hearsay statements that form the basis for his or her opinion do not implicate Crawford, because “[t]he hearsay relied upon by an expert in forming his or her opinion is ‘examined to assess the weight of the expert’s opinion, ’ not the validity of their contents.” (Cooper, supra, 148 Cal.App.4th at p. 747, citing Crawford, supra, 541 U.S. at p. 59, n. 9.)
Here, Officer Lopez testified about Hernandez’s self-admitted membership in Los Wickeds in order to explain the basis for his expert opinion of Hernandez’s gang membership. Admission of evidence explaining the foundation for an expert opinion does not implicate the hearsay rule because it is evidence admitted for a nonhearsay purpose. (Crawford, supra, 541 U.S. at p. 59 n. 9.) Furthermore, the prosecution presented ample evidence of Hernandez’s membership in Los Wickeds, including several gang tattoos, the notebook with gang-related writing, and his frequent presence with other Los Wickeds gang members in that gang’s claimed territory. In light of this additional evidence, there is no reasonable probability of a more favorable outcome of the trial in the absence of the challenged part of Lopez’s testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Another court criticized prior holdings that have allowed an expert to base his or her opinion on hearsay statements without running afoul of the Crawford decision. (People v. Hill (2011) 191 Cal.App.4th 1104.) However, as the Hill court concluded, we are bound by the doctrine of stare decisis in the matter. (Id. at p. 1129-1131.)
3. Legality of Dual Convictions for Firearms Offenses
Relying on People v. Ramon (2009) 175 Cal.App.4th 843 and People v. Coyle (2009) 178 Cal.App.4th 209, Hernandez contends he was improperly convicted of both possession of a firearm by a convicted felon (§ 12021, subd. (a)(1); count 2) and possession of a loaded firearm by a criminal street gang member (§ 12031, subd. (a)(1), (2)(C); count 3) when in fact he possessed but a single gun. We disagree.
Section 954 states a “defendant may be convicted of any number of the offenses charged” in the information. The information, or accusatory pleading, “may charge two or more different offenses connected together in their commission, or different statements of the same offense... under separate counts.... The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged....” (Italics added.) Consequently, “‘multiple charges and multiple convictions can be based on a single criminal act, if the charges allege separate offenses.’ [Citations.]” (People v. Coyle, supra, 178 Cal.App.4th at p. 217.) The only exception is when multiple convictions are the result of guilty verdicts on necessarily included offenses. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) However, this exception does not apply here.
Section 954 provides, “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.”
Hernandez was charged with separate crimes: (1) being a felon in possession of a firearm (§ 12021, subd. (a)(1)); and, (2) being an active participant in a criminal street gang while carrying a loaded firearm (§ 12031, subd. (a)(1), (a)(2)(C)). “Our Supreme Court has ‘applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the “elements” test and the “accusatory pleading” test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]’ [Citation.]” (People v. Leal (2009) 180 Cal.App.4th 782, 793.) “Courts should consider the statutory elements and the accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.” (People v. Reed, supra, 38 Cal.4th at p. 1231.)
Applying the statutory elements test to the instant case, it is readily apparent the different statutes in question each contain elements not present in the other. Moreover, as distinguished from Ramon, Hernandez was convicted of crimes involving different statutes. (Cf. People v. Ramon, supra, 175 Cal.App.4th at pp. 857-858.) Therefore, both convictions for being a felon in possession of a firearm and carrying a loaded firearm while being an active participant in a criminal street gang survive constitutional scrutiny.
4. Sufficiency of the Evidence-Prior Prison Term
Hernandez was charged with having served three prior prison terms (§ 667.5, subd. (b)). He waived jury trial on the prior convictions and the court conducted a bench trial at the beginning of the sentencing hearing. During the bench trial, defense counsel pointed out that Hernandez had received a single prison term for two cases, case numbers 04CF0655 and 03HF0962, and a separate term of imprisonment for case number 06CF0675. At the conclusion of the bench trial, the court found true all three prior prison term enhancement allegations. However, when sentencing Hernandez, the court acknowledged he had only served two prior prison terms and struck one of the three priors listed. The correction is appropriately noted in the abstract of judgment. Therefore, Hernandez fails to demonstrate the trial court’s initial error mandates any action by this court.
5. Use of Documentary Evidence Alone Violates Sixth Amendment
Relying on Crawford, supra, 541 U.S. at p. 36 and Melendez-Diaz, supra, 557 U.S. at p. __ [129 S.Ct. 2527], Hernandez claims the prosecution’s reliance on section 969b prison packets to prove the truth of prior conviction allegations violates his Sixth Amendment right to confront and cross-examine adverse witnesses. We rejected this argument in People v. Taulton (2005) 129 Cal.App.4th 1218, 1225, and it has been recently rejected in People v. Larson (April 26, 2011 E050114) [2011 WL 1549822] and People v. Perez (May 19, 2011 D056301) [2011 WL 1887335].) In short, the documents contained in section 969b prison packets (the underlying prison and jail records associated with criminal convictions) are nontestimonial and outside the scope of the Sixth Amendment. (Melendez-Diaz, supra, 557 U.S. at p. __ [129 S.Ct. at p. 2539]; People v. Perez, supra, (May 19, 2011 D056301) [2011 WL 1887335].)
Section 969b provides, “For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution, or has been convicted of an act in any other state, which would be punishable as a crime in this State, and has served a term therefor in any state penitentiary, reformatory, county jail or city jail, or has been convicted of an act declared to be a crime by any act or law of the United States, and has served a term therefor in any penal institution, the records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence.
6. Constitutionality of Section 969b
Hernandez challenges the constitutionality of section 969b both facially and as it was applied in his case, asserting the statute violates the Sixth Amendment. Relying on Crawford, supra, 541 U.S. 36 and Melendez-Diaz, supra, 557 U.S. ____, he asserts “nothing short of cross-examination will satisfy the Sixth Amendment right of confrontation.” Focusing on the fact “section 969b is essentially a ‘hearsay exception’ that allows certified copies of the specified ‘records to be used for the truth of the matter asserted in those records[].’” (People v. Martinez (2000) 22 Cal.4th 106, 116.) Hernandez claims, “No longer is the establishment of an exception to the hearsay rule acceptable as a substitute for cross-examination.” His arguments miss the mark.
“Under Crawford, the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial.” (People v. Geier (2007) 41 Cal.4th 555, 597.) If such a statement is nontestimonial, the Sixth Amendment is not implicated. Nothing in Melendez-Diaz changes the analysis. There, the court simply concluded that affidavits reporting the results of forensic analysis were testimonial and subject to Crawford. (Melendez-Diaz, supra, 557 U.S. at p. __[129 S.Ct. at p. 2532.) Neither case stands for the proposition that a criminal defendant has a constitutional right to cross-examine document preparers regardless of the original purpose for the creation of the documents. Therefore, neither holds section 969b violates the Sixth Amendment’s confrontation clause, and we see no reason it should.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.