Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA 068768. Joan Comparet-Cassani, Judge.
James R. Bostwick Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Ellen Birnbaum Kehr and David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Defendant Tony Hunt timely appealed from his conviction on count one of first degree robbery, on count two of resisting a police officer causing serious bodily injury, on count three of resisting an executive officer, and on count four of carrying a loaded firearm by a gang member. As to each count, the jury found true the allegations a principal was armed with a firearm and the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang. For count one, the court imposed the low term of three years, plus one year for the armed principal allegation and ten years for the gang allegation. The court stayed execution of sentence under Penal Code section 654 or imposed concurrent sentences on all the remaining counts. Defendant contends there was insufficient evidence to support the gang allegations, the use of out-of-court statements violated his Sixth Amendment rights of confrontation and cross-examination, and the court committed instructional and sentencing errors. We affirm.
Unless otherwise noted, all statutory references are to the Penal Code.
FACTUAL BACKGROUND
I. Prosecution Case
A. The offenses
On March 24, 2005, at 4:30 p.m., appellant and two companions named Bryson Blue and Jeffrey Hawkins boarded a Metrolink train. The men, who were about 20 years old, entered the back door of the train and approached a passenger named Bobby Alexander, who was sitting next to the door. Blue, who did almost all the talking, and appellant stood in front of Alexander while Hawkins sat next to Alexander. Blue asked Alexander where he was from, and Alexander replied, “Nowhere.” Blue said they belonged to the Grape Street Gang, and Alexander said he had cousins who belonged to that gang.
Blue asked Alexander for money and then removed about $400 from Alexander’s pockets. Blue also took Alexander’s hat and earrings. Before taking the money, Blue asked one of his companions to hand him a gun. Neither man handed a gun to Blue. After taking Alexander’s property, Blue and his two companions left the train together.
At the same time that appellant, Hawkins and Blue were leaving the train, Los Angeles County Deputy Sheriff Scott Harper was getting on. Harper’s partner Deputy Erik Albano stayed on the boarding platform close to the doors of the train. The deputies were in uniform. As Harper was citing two detainees for nonpayment of fare, he was approached by Alexander, who told Harper that three male Blacks who were outside the train had taken his money. Harper grabbed appellant and asked Alexander if he was one of the robbers, and Alexander said, “Yes, and those two others guys.”
Looking toward Albano, Harper shouted, “We’ve got a 211 [robbery].” At the same moment, appellant made a lateral motion with his hand and flung a small handgun onto the train. Harper informed Albano about the gun by yelling, “Partner, we’ve got a 417 [gun].” Appellant broke free of Harper’s grasp and ran north on the platform.
Albano grabbed appellant’s left shoulder as appellant tried to run by. Appellant struggled to get away, and appellant and Albano fell to the ground and grappled with each other. Albano lost control of appellant’s left arm, and he felt something tug at his right side where his holster and gun were located. During this struggle, Albano and Harper told appellant to stop fighting, but he continued to resist. Harper pulled out his service weapon, placed it next to appellant’s head, and told appellant to stop fighting. Appellant reached out and pushed Harper’s gun aside. Albano yelled to Harper, “He’s going for my gun, shoot him.” Believing his partner’s life was in danger, Harper placed his firearm against the back of appellant’s head and fired one shot. Initially, appellant went limp.
Albano used his radio to call for an ambulance; meanwhile, Harper went on the train and recovered the gun appellant tossed on it. The gun was a nickel plated Sundance .25 caliber. Returning to the platform, Harper helped Albano put handcuffs on appellant who was still conscious and fighting.
After the shooting, Albano discovered he was bleeding from a bullet hole in his right tricep. Albano was taken to the hospital where the wound was cleaned.
On the night of the robbery, Detective Randy Seymore interviewed Alexander. Alexander stated three men got on the train and asked where he was from. One of the men took his money and another “flashed a gun.” The light-skinned robber who did most of the talking said to someone, “‘Give me the gun,’” and told Alexander, “‘Give me your stuff or I’ll shoot you,’” and “‘Don’t make me shoot.’” Alexander did not resist because the men had a gun. The person with the gun was the one who was shot by the officer.
A few days after the incident, Detective Stephen Katz interviewed Alexander and showed him some photographs. Alexander selected the photographs of Bryon Blue as the light-skinned robber, Jeffrey Hawkins as the person who sat next to him on the train and appellant as the person standing in front of him and who was later shot by the officer.
In a secretly recorded conversation between appellant and Hawkins when they were in the same jail cell, appellant said things that implied he and Hawkins had known each other and committed the robbery together. When Hawkins asked appellant if he told the police Hawkins had been with him, appellant said he had not: “I told the police, I was by myself, okay, I was lying.” “I didn’t say shit, homie, I ain’t got to lie to you.” Appellant assured Hawkins he was not going to snitch.
B. Gang Evidence
Roger Zottneck was a detective who had been assigned to the gang enforcement section of the Long Beach Police Department for seven years. Zottneck’s duties included the investigation of gang related crimes and the identification of gang members. Zottneck testified he had contact with appellant while on duty on the night of March 26, 2004. Zottneck and his partner Officer Scavone were driving northbound on Martin Luther King Boulevard when they saw two males on the northeast corner of 15th Street, an area predominately ruled by the Insane Crips Gang (ICG). When the men saw the officers in their car, one of the males ran north on Martin Luther King and turned east on the next street while holding his waistband. To Zottneck that meant the subject was concealing either a gun or narcotics. The officers were unable to catch the person who ran, but they stopped and questioned the other person, who was appellant. Scavone examined appellant’s cell phone and told Zottneck that he has discovered a list of gang monikers of individuals who belonged to the ICG stored in the phone. Appellant was wearing black pants and either silver or black tennis shoes, which was significant because silver and black are worn by many ICG members.
At the time of trial, Officer Sean Hunt was assigned to the career criminal apprehension team; previously Hunt had worked in the gang unit for eight years and had training and experience with gang culture. One of Hunt’s duties was to become acquainted with ICG and the Rolling Twenties Gang, both Black gangs. Hunt and his partner would contact individuals and try to determine if they belonged to one of those gangs. When Hunt asked individuals if they belonged to ICG, the person would sometimes admit and sometimes deny membership. A denial did not necessarily mean the person was not in the gang.
Hunt was familiar with appellant, and, in his opinion, appellant was an ICG member. Hunt based his opinion on the statements of others that appellant was a gang member and two or three contacts he had with appellant at Martin Luther King Park, an area controlled by ICG. In Hunt’s opinion, no one who was not an ICG member would go to that area. Hunt also based his opinion on an observation he made toward the end of 2004 or in early 2005 of appellant in the company of six or seven documented ICG members.
Hunt knew Jeffrey Hawkins. When Hunt began working in the gang unit, Hawkins belonged to the 19th Street set of ICG. Later, Hawkins became known as Scarface from the Big’s Baby Insane Gangs, a subset of ICG. Hunt observed that in 2003 or 2004, he had seen appellant and Hawkins together at a park where gang members congregated. About six or eight months before trial, Hunt spoke to a woman about the shooting, and she told Hunt that Hawkins’ moniker was “Scarface” and appellant’s moniker was “Three.”
Joe Pirooz, a gang detective with the Long Beach Police Department testified that on March 2, 2005, at about 6:30 p.m., he and his partner contacted Jeffrey Hawkins with another individual he wanted to say was appellant in the 1700 block of Obispo, an area frequented by ICG members. A field investigation card for appellant was completed.
Hector Gutierrez testified he was assigned to the gang enforcement section of the Long Beach Police Department. Gutierrez had 40 hours of training in gangs and gang culture at the Long Beach Police Department, had attended over 200 hours of gang and gang culture classes and testified as a gang expert. Gutierrez had investigated ICG for 16 years and had daily contact with ICG members. Gutierrez was familiar with appellant although Gutierrez had never had any personal contact with appellant. Gutierrez had had contact with Hawkins, a documented and self-admitted member of ICG. In Gutierrez’s opinion, appellant was a gang member because of appellant’s contacts with the Long Beach police, he admitted to being one, spent time with Hawkins, had gang tattoos, and had been present during the incident charged in this case. One of the three tattoos on appellant’s right wrist was his gang moniker, “Three.”
ICG was an ongoing organization with 1,025 documented members. The gang’s common names and symbols were the initials “ICG” and the silver and black colors often worn by its members. The primary activities of ICG were murder, robbery, carjacking, murder for hire, driveby shootings, assaults, vandalism and narcotics sales. Members of ICG who had been convicted of felonies included Karmel Diggs, who had been convicted in 2005 of assault with a firearm and selling cocaine, and Hector Miles, who had been convicted of murder and conspiracy to commit attempted murder. In Gutierrez’s opinion, the robbery in this case was committed for the benefit of ICG in that it was either a test for the initiation of a new member, to demonstrate worthiness to fellow gang members or to obtain money to purchase weapons or other things the gang needed. The question “Where are you from?” typically is a challenge and a prelude to a gang crime.
II. Defense Case
Lewis Yablonski, a professor at California State University, testified as an expert on gangs. Yablonski reviewed the data defense counsel provided to him and familiarized himself with the facts in appellant’s case. Yablonski testified that being found in the company of a gang member does not necessarily make that person a member of a gang; many young people who grow up in gang neighborhoods associate with gang members in the neighborhood and at school. Based on his analysis of the police records and preliminary hearing transcript, Yablonski opined the robbery in this case was not gang related.
Yablonski agreed that gang initiations sometimes involved the commission of crimes, that gangs use juveniles in the commission of crimes, that a cell phone with the names of gang members could be considered gang paraphernalia, and that spending time with gang members indicated gang membership.
Appellant testified his nickname is “Touch,” not “Three.” The “Three” appellant has tattooed on his left wrist goes with the “T” that is on his right wrist, and together they stand for Tony the Third. Appellant did not participate in the robbery of Alexander, but he knew Blue was committing one. Appellant exited the train before Hawkins and Blue, and they went in different directions. When Alexander told the officers he had been robbed, he pointed at the north end of the platform where Hawkins and Blue were. Appellant denied he was or had ever been a gang member, but admitted he did “hang out” with gang members.
DISCUSSION
I. Motion for Acquittal
Appellant contends that the denial of his motion for acquittal at the close of the prosecution’s case was reversible error because the evidence was insufficient to establish that the robbery was gang related or that the group to which he allegedly belonged was a criminal street gang as defined by statute. Appellant’s brief is a detailed attack on the nature of the evidence supporting the experts’ opinions. Respondent ignores appellant’s attack and simply asserts the expert opinions constituted substantial evidence to support the challenged elements.
A. Expert Opinions and Substantial Evidence
“We utilize the substantial evidence test to determine whether the prosecution has introduced sufficient evidence to meet its burden of proof beyond a reasonable doubt. The California Supreme Court has held, ‘The substantial evidence test applies both when an appellate court is reviewing on appeal the sufficiency of the evidence to support a conviction and when a trial court is deciding the same issue in the context of a motion for acquittal under Penal Code section 1118.1 at the close of evidence.’ The substantial evidence standard of review applies to section 186.22 gang enhancements.” (Citations omitted.) (People v. Augborne (2002) 104 Cal.App.4th 362, 371.) “We view the evidence in a light most favorable to the judgment.” (Id., at p. 366.)
Appellant contends that because the gang expert opinions in this case were based on unreliable hearsay or speculation, they are not substantial evidence. (Cf. Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135 [“Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value.”].)
“Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. Of course, any material that forms the basis of an expert’s opinion testimony must be reliable. For ‘the law does not accord to the expert’s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.’” (Citations omitted.) (People v. Gardeley (1996) 14 Cal.4th 605, 618 [“expert witness can base ‘opinion on reliable hearsay, including out-of-court declarations of other persons.’”].)
“So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony. And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter . . . upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion.” (Citations omitted; original italics.) (People v. Gardeley, supra, 14 Cal.4th at p. 618.)
“Evidence Code section 801 requires that any opinion of an expert be based upon matter that is of the type that reasonably may be relied upon. This inquiry by the trial court can be held in an in camera hearing and the test on review is whether or not the trial court abused its discretion in ruling as to whether a proper foundation has been or could be laid. The court has discretion and may exclude evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice, confuse the issues or mislead the jury.” (Italics deleted.) (Cf. Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 339.)
In the case at bar, there was no motion in limine to exclude gang evidence nor any in camera hearing to determine if a proper foundation had been laid for the expert opinions proffered. Appellant did not challenge the qualifications of the prosecution’s gang experts. Appellant made few objections to the opinions of the prosecution’s experts.
Appellant objected when Gutierrez included appellant’s participation in robbery as part of the basis for his opinion appellant was a member of ICG. The court sustained the objection and struck the reference to the robbery as an improper legal conclusion. The prosecutor then elicited without objection that appellant’s presence during this incidence was one of the factors in his opinion. Appellant objected on hearsay grounds when Hunt started to refer to what a female Black had said, and the court overruled the objection on the ground experts can rely on hearsay for forming their opinion.
In People v. Olguin (1994) 31 Cal.App.4th 1355, 1384-1385, the court concluded that the testimony of a police officer as a gang expert was not inadmissible as conclusional or based on unspecified hearsay. The court noted that in order to proffer an opinion about gangs, officers had to refer to conversations with gang members and that while the credibility of those sources might not be beyond reproach, “‘[t]he variation in the permissible bases of expert opinion is unavoidable in light of a wide variety of subjects upon which such opinion can be offered.’” (Id., at p. 1385.) The court noted the statements were not recited in detail but were referenced in general along with other corroborative information. (Ibid.) The court reasoned: “While it is undeniably true that not every statement of the officer was annotated with factual referents, that is the nature of all opinion testimony. Indeed, the role of the expert is largely one of extrapolation from a set of known facts to an opinion about unknown ones. While that testimony cannot consist of an opinion that members of a gang have committed offenses -- unsupported by any evidence of such crimes . . ., we see no reason why it cannot relate to the general characteristics of Hispanic street gangs and the ways in which such gangs typically seek ‘respect.’” (Italics deleted.) (Ibid.) The experts’ opinions in this case were based on the type of matters on which gang experts may reasonably rely.
Appellant did not object to any of the experts’ opinions on the basis the expert based his opinion on improper matter. (See Evid. Code, § 803; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation At Trial, § 201, p. 264 [“The court may, and on objection must, exclude opinion testimony that is based in whole or in significant part on matter that is not a proper basis for the opinion.”].) “‘[B]ecause an expert’s need to consider extrajudicial matters, and a jury’s need for information sufficient to evaluate an expert opinion, may conflict with an accused’s interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court’s sound discretion.”’ (People v. Catlin (2001) 26 Cal.4th 81, 137.) “Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth.” (People v. Montiel (1993) 5 Cal.4th 877, 919.)
Appellant waived his objection the hearsay was unreliable as he made only one hearsay objection to the experts’ testimony and that objection was not based on a claim the statement was unreliable. (People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 11.) Appellant did not raise the issue of whether the experts’ opinions were based on the type of matter on which an expert may reasonably rely thus waiving that alleged deficiency by his failure to object. (Cf. Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.) We conclude that because of these principles, any objections the matters on which an expert is relying are unreliable must be raised in the trial court in the first instance.
As gangs become more sophisticated, it is less likely individual members will admit to being such when questioned by police.
B. Benefit of The Gang
Appellant contends there was insufficient evidence the robbery was committed for the benefit of ICG. In addition, appellant asserts that Gutierrez’s opinion the crime was committed for the benefit of ICG was dependent on the conclusion that appellant, Hawkins and Blue were members of ICG, and there was no substantial evidence any of the three robbers was a member of ICG. Appellant argues the officers based their opinion the participants in the robbery were members of ICG on unreliable hearsay and fallacious reasoning. Appellant also attacks Gutierrez’s opinion the crime was committed for the benefit of ICG as being based on unsupported assumptions because there was no evidence the robbery was committed as an initiation or to purchase guns.
1. Member
There was substantial evidence appellant was a member of ICG. When Zottneck had contact with appellant in March 2004 in an area ruled by ICG, his partner examined appellant’s cell phone and discovered a list of monikers of individuals who belonged to ICG stored in the phone. At that time, appellant was wearing black pants and black or silver shoes, the gang colors of ICG. Detective Hunt was familiar with appellant and based his opinion that appellant was a member of ICG on two or three contacts he had with appellant at a park, which was in an area controlled by ICG; an area no one who was not ICG would go. In addition, on another occasion, Hunt had seen appellant in the company of six or seven documented ICG members. Hunt had also seen appellant and Hawkins, who belonged to ICG, together at a park where gang members congregated. In Gutierrez’s opinion, appellant was a gang member because of appellant’s contacts with the Long Beach police, he spent time with Hawkins, he had gang tattoos, and he was present during the current offense. Appellant suggests that under Detective Hunt’s rationale, a person could be declared a gang member after being seen once with gang members; that was not the case here. Although none of the facts alone constituted substantial evidence appellant was a member of ICG, taken together, the totality of the circumstances, which included several sightings with ICG members, does constitute substantial evidence of his membership.
2. Benefit
The opinion of an expert that a crime was gang-related has been held sufficient to prove that it was committed for the benefit of the gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198; People v. Romero (2006) 140 Cal.App.4th 15, 18-19.) Gutierrez opined the robbery was committed to benefit ICG, stating “by committing violent crimes you’re showing your fellow gang members and other members of the gangs that you’re worthy enough to be in this gang. A lot of time these crimes are committed as an initiation or to obtain monies and they use these monies to later purchase weapons or anything that the gang may need.”
When questioning Gutierrez, the prosecutor mentioned the suspects used the term Grape Street to Gutierrez and asked if that was significant, Gutierrez responded it was a gang in Los Angeles. Citing Hyatt v. Sierra Boat Co., supra, 79 Cal.App.3d 325, appellant asserts Gutierrez’s opinion the robbery was committed for the benefit of ICG was contrary to the proof in the case, i.e., the specific facts established by the percipient witness Alexander who stated the robbers said they were from Grape Street. In Hyatt, the court noted: “If [an expert’s] opinion is not based on facts otherwise proved, or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence.” (Id., at pp. 338-339.) The references to Grape Street were brief, and defense counsel did not cross-examine Gutierrez about that evidence. There was evidence appellant and Hawkins were members of ICG and all the expert testimony was about ICG. Accordingly, Gutierrez’s opinion was not contrary to the only proof adduced at trial.
Gutierrez gave some possible reasons why the robbery would benefit ICG. The prosecutor argued the robbery was committed as an initiation. Detective Hunt testified gangs use juveniles to commit crimes because they receive lesser punishment than adults and juveniles are willing participants because involvement in crimes leads to prestige in the gang. Hunt explained that Black gangs no longer initiate by “jumping in,” but rather by sending a recruit on a crime mission. Alexander described all the robbers as being about 20 years old. There was no testimony that Blue was a member of ICG. Blue was the one who confronted Alexander and did almost all the talking. Blue was the one who asked for a gun and threatened to shoot Alexander and then took Alexander’s money, hat and earrings. These facts support a reasonable inference the robbery was committed as an initiation or to show worthiness.
Moreover, appellant participated in the robbery with Hawkins, another member of ICG. (See People v. Morales, supra, 112 Cal.App.4th at p. 1198.) In addition, a gang challenge, i.e., “Where are you from?,” proceeded the robbery, and such a challenge is often the prelude to a gang crime.
Appellant also suggests there was no substantial evidence of the specific intent to benefit ICG because of the evidence the crime was committed for Grape Street. The experts’ testimony also provided the basis upon which the jury could infer the specific intent to benefit ICG. (See People v. Garcia (2007) 153 Cal.App.4th 1499, 1513-1514; People v. Romero, supra, 140 Cal.App.4th at pp. 19-20; People v. Morales, supra, 112 Cal.App.4th at pp. 1198-1199.)
C. Primary Activities
One of the elements needed to prove the criminal street gang component of a gang enhancement is that the group has as one of its primary activities the commission of one or more of the crimes specified in the California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.). (In re Alexander L. (2007) 149 Cal.App.4th 605, 610-611.)
“Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group’s primary activities. Both past and present offenses have some tendency in reason to show the group’s primary activity and therefore fall within the general rule of admissibility.” (Citation omitted.) (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Expert testimony a gang’s members consistently and repeatedly committed crimes listed in the gang statute may be sufficient proof of a gang’s primary activities. (Id., at p. 324; see People v. Gardeley, supra, 14 Cal.4th at p. 620 in which the expert’s opinion the primary activity of the gang was the sale of narcotics was based “on conversations with the defendants and with other Family Crip members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.”].)
Appellant asserts this case is similar to Alexander in which the Court of Appeal reversed a true finding as to a gang enhancement allegation on the basis there was no substantial evidence the gang was a criminal street gang within the meaning of section 186.22. (In re Alexander L., supra, 149 Cal.App.4th at p. 614.) The expert in Alexander testified he knew the gang had been involved in murders and “‘involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Id., at p. 611.) The court noted “[n]o specifics were elicited as to the circumstances of those crimes, or where, when, or how Lang [the expert] had obtained the information.” (Id., at pp. 611-612.) The court reasoned: “We cannot know whether the basis of Lang’s testimony on this point was reliable, because information establishing reliability was never elicited from him at trial.” (Id., at p. 612.)
Gutierrez testified that members of ICG who had been convicted of felonies included Karmel Diggs, who had been convicted in 2005 of assault with a firearm and selling cocaine, and Hector Miles, who had been convicted of murder and conspiracy to commit attempted murder. Those convictions were supported by official documents (rap sheets). When Gutierrez was asked what the primary activities of ICG were, he stated ICG was involved in murder, robbery, carjacking, murder for hire, driveby shootings, assaults, vandalism and narcotics sales -- all statutorily enumerated crimes except vandalism.
In the case at bar, even though the prosecutor also did not directly elicit from Gutierrez the basis for his information about the crimes allegedly committed by ICG, we infer from Gutierrez’s description of his background, that it was based on his investigations of ICG. Gutierrez stated he had investigated ICG for 16 years, had daily contact with its members and documented their tattoos, vehicles, monikers and gang affiliation and gotten to know their family members and where they lived. Gutierrez also worked with FBI and DEA task forces which investigated ICG and its illegal activities. (See People v. Duran (2002) 97 Cal.App.4th 1448, 1465.) Furthermore, we note that during closing argument, defense counsel bluntly stated there was no doubt ICG was a criminal street gang.
As there was substantial evidence ICG is a criminal street gang, appellant was a member of ICG, the crime was committed to benefit ICG, and appellant had the specific intent to benefit ICG, the court properly denied his motion for acquittal.
II. Right to Confront
Appellant contends that pursuant to Crawford v. Washington (2004) 541 U.S. 36, 53-54, the introduction of out-of-court statements violated his Sixth Amendment rights to confront and cross-examine witnesses. In particular, appellant asserts the following evidence violated those rights: (1) Detective Zottneck’s testimony that his partner told him that he (the partner) found names and monikers of people who were members of ICG on appellant’s cellular telephone. (2) Detective Hunt’s testimony that other people told him appellant was a gang member. Hunt testified that while on duty, a girl told him appellant’s moniker was “Three.” (3) Detective Hunt’s hearsay testimony that Hawkins was a member of ICG. (4) Detective Gutierrez’s testimony that appellant admitted to Officer Pirooz that he was a gang member.
The People concede that admission should not be part of the basis for Gutierrez’s opinion appellant was a member of ICG because Pirooz did not testify appellant had admitted he was a member of ICG. However, as Pirooz did testify, appellant had an opportunity to cross-examine Pirooz about whether he (appellant) had made such an admission.
Appellant argues those statements were testimonial as they resulted from police interrogations during investigations to document gang members rather than an ongoing emergency. (Davis v. Washington (2006) 126 S.Ct. 2266, 2273-2274.) The statement of Zottneck’s partner was not the result of a police interrogation but the observation of a fellow officer.
In People v. Thomas (2005) 130 Cal.App.4th 1202, 1210, an expert, who opined the defendant was a gang member and the crime was committed for the purpose of aiding the gang, testified that other gang members had told him the defendant was a member of the gang. On appeal, the defendant argued the introduction of hearsay statements violated his Sixth Amendment rights as explained in Crawford.
The Court of Appeal rejected that argument reasoning, “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion. Crawford itself states that the Confrontation Clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’” (People v. Thomas, supra, 130 Cal.App.4th at p. 1210.) The court noted courts in other jurisdictions have upheld such use of hearsay. (Ibid.; see also People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 [citing Thomas and concluding: “Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned.”].) We are persuaded by the reasoning in Thomas and Ramirez and conclude the challenged statements were not admitted for the truth and therefore did not violate appellant’s right to confront witnesses. (See also People v. Cooper (2007) 148 Cal.App.4th 731, 747 [“Hearsay relied upon by experts in formulating their opinions is not testimonial because it is not offered for the truth of the facts stated but merely as the basis for the expert’s opinion.”].)
Appellant claims that even if the hearsay on which the experts relied was not technically admitted for its truth, the jury was not instructed to consider the hearsay only for the purpose of determining the weight of the experts’ opinions. The jury was given a limiting instruction, CALJIC No. 17.24.3, which provided:
Evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crimes for which defendant is on trial.
This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.
For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case.
You are not permitted to consider such evidence for any other purpose.
If appellant wanted a further limit on the gang evidence, he should have requested a modification of the instruction. (People v. Coddington (2000) 23 Cal.4th 529, 584 disapproved on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; see also People v. Hernandez (2004) 33 Cal.4th 1040, 1052 [holding that because the defendants did not specifically request a limiting instruction on gang evidence, “the court had no sua sponte duty to give one.”].)
III. Instruction on Unanimity
Appellant contends the court had a sua sponte duty to instruct the jury that in order to find the gang enhancement true the jurors had to agree on the particular gang for whose benefit, direction, or association the crime was committed. Appellant argues that when multiple acts are presented to prove a single count, a unanimity instruction must be given if there is a danger the jury will find the defendant guilty although the jurors disagree on the act he committed. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Appellant claims there was substantial evidence the robbery was committed for two different street gangs -- ICG and Grape Street.
In the case at bar, there was no substantial evidence the robbery was committed for the benefit of Grape Street. Other than Alexander stating the robbers mentioned Grape Street when they approached him and Gutierrez acknowledging Grape Street was a Los Angeles gang, all the expert testimony revolved around ICG -- whether appellant was a member of ICG, whether ICG was a criminal street gang and whether the robbery benefited ICG. There was no evidence nor any argument that appellant was a member of Grape Street, that Grape Street was a criminal street gang or that the robbery was committed to benefit Grape Street. Consequently, the court did not have a sua sponte duty to give a unanimity instruction.
IV. Enhancements
In count 1 of the information, appellant was charged with robbery, with the allegation that a principal was armed with a firearm pursuant to section 12022, subdivision (a)(1) and that the offense was committed for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1)(C). No allegations were included for counts 2, 3 and 4. On the verdict forms, the jury found the armed and gang allegations to be true as to all four counts.
The court sentenced appellant to the low term of three years on count 1, with an additional one year for the armed allegation, and an additional ten years for the gang allegation. On count 2 (resisting a police officer), the court imposed the mid-term of three years, with an additional one year for the armed allegation, and an additional three years for the gang allegation, to run concurrently with the term on count 1. The sentences and enhancements on count 3 (resisting an executive officer) and count 4 (gang member with a firearm) were stayed pursuant to section 654.
Appellant contends the imposition of sentence on the enhancements on counts 2 through 4 violated his due process right to notice because on the information the enhancements were only alleged as to count l. (People v. Mancebo (2002) 27 Cal.4th 735, 750 [“‘Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial.”]; see also People v. Neal (1984) 159 Cal.App.3d 69, 73 [“The defendant has the right to notice the prosecution is seeking enhanced punishment.”].) Section 1170.1, subdivision (e) provides, “All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.”
In People v. Riva (2003) 112 Cal.App.4th 981, 1000-1003, this court determined that the failure to plead an enhancement under section 12022.53 as to a count on which the enhancement was imposed did not violate the defendant’s statutory and constitution right to adequate notice. Similar to this case, the verdict forms asked the jury to determine whether the allegations were true as to all the three counts, the defendant did not object to the verdict form, and the jury found the allegations true as to all three counts. (Id., a p. 1000.) The court noted that the statute did not say where in the information the facts had to be alleged or that the facts had to be alleged in connection with a particular count and that the prosecutor had complied with the literal language of the statute by alleging the enhancement as to other counts. (Id., at p. 1001.) The court distinguished Mancebo on the basis the enhancement was not pled as to any count in that case. (Id., at p. 1002.) The court concluded that the defendant’s ability to contest the factual bases of the enhancement was not affected because the allegation was pled as to the manslaughter and assault counts. (Id., at p. 1003.)
Section 12022.53, subdivision (j) also stated that the existence of any fact “shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.”
Mancebo noted its holding was limited to construction of language in section 667.61. (People v. Mancebo, supra, 27 Cal.4th at p. 745, fn. 5.)
Appellant argues this case is different from Riva because in that case the charges all arose from the same operative facts, i.e., the defendant fired shots at the occupants of one car, while this case involves separate incidents and different victims (Alexander and Deputy Albano). Appellant notes that in People v. Smart (2006) 145 Cal.App.4th 1216, 1225, the court held that due process required a defendant be given notice he faced a section 12022.53 gun use enhancement as to each victim and that multiple section 12022.53 enhancements could be imposed only when the number of charges aligned with the number of victims. The issue in Smart was whether the defendants had been charged with more than one crime, and the court struck the second enhancements because the defendants had been charged with only one crime. (Id., at pp. 1223-1226.) Appellant was charged with more than one crime.
However, in People v. Collins (1960) 54 Cal.2d 57, 59, the Supreme Court noted: “When the information charges rape committed under the circumstances stated in a particular subdivision of section 261 and the prosecution offers proof of different circumstances which may bring the act under another subdivision, the accused may be taken by surprise unless before the trial he has received notice of the possibility of such a variance by other means than the information.”
In the instant case, appellant did not object to the instructions on the enhancements as to all four counts when the court discussed those instructions or when the instructions were given. Appellant did not object to the verdict forms which required findings on the enhancements on all four counts or when the prosecutor informed the jury it should fill in the armed and gang enhancements on the verdict forms. Neither appellant nor the record suggest appellant would have defended the case any differently if the enhancements had been alleged as to all four counts. Thus, the court did not err in imposing sentences on the enhancements on all four counts.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J., ZELON, J.