Opinion
D058180
11-17-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTINE JENSEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF137469
APPEAL from a judgment of the Superior Court of Riverside County, Sam Cianchetti, Judge. Affirmed.
INTRODUCTION
Christine Jensen pleaded guilty to two counts of receiving stolen property (Pen. Code, § 496, subd.(a)) and one count of identity theft (§ 530.5, subd. (a)). As to each count, a jury found true criminal street gang benefit enhancement allegations (§ 186.22, subd. (b)). The trial court sentenced her to an aggregate term of four years in prison.
The documents in the record consistently refer to Jensen as Christine Jensen. However, after Jensen's arrest, she told a law enforcement officer her first name was Tammer and her middle name was Christine. Although the probation report also refers to Jensen as Christine Jensen, it notes Tammer is her first name.
Further statutory references are also to the Penal Code unless otherwise stated.
Jensen appeals, contending there is insufficient evidence to support the jury's true findings on the criminal street gang benefit enhancement allegations. She also contends the prosecution violated her constitutional right of confrontation by presenting the statements of persons not called to testify at trial and the contents of unrelated police reports through its gang expert. We conclude these contentions lack merit and affirm the judgment.
BACKGROUND
Prosecution Evidence
Leroy Barber's home was burglarized. Among the items taken was a safe containing credit cards, checks, identification and other personal papers. After the burglary, several banks and companies contacted Barber about fraudulent purchases made with his credit cards. Barber reported the matter to the Riverside County Sheriff's Department.
Sheriff's investigator Gary Bowen investigated the fraudulent purchases. Barber's credit card information and the e-mail address ecarr951@yahoo.com (ecarr951 e-mail address) were used to purchase a car stereo, an air conditioner, and some cell phones. The air conditioner was purchased by Lily McBlue. The car stereo was delivered to Steven Conyers's home. Sheriff's deputies also found the air conditioner installed in Conyers's bedroom. It had been painted a different color. The cell phones were delivered to Jensen's apartment.
Conyers pleaded guilty in this case to forgery (§ 470, subd. (d)). He also admitted the truth of a criminal street gang enhancement allegation (§ 186.22, subd. (b)). The trial court sentenced him to a negotiated term of five years in prison.
Barber's credit card information was used to purchase car parts for a Chevrolet Malibu. The car parts were delivered to McBlue at Jensen's address. Jensen owns a Chevrolet Malibu.
Barber's credit card information and the e-mail address lilystuart@yahoo.com (lilystuart e-mail address) were used to place an order for a large number of tennis shoes. The lilystuart e-mail address is registered to McBlue at Jensen's address. In addition, the shoes were to be shipped to McBlue at Jensen's address. The owner of the shoe company reviewed the order, determined it was fraudulent, and never shipped the shoes.
Barber's credit card information and the e-mail address rip_snoopy35@yahoo.com (rip_snoopy35 e-mail address) were used to purchase an iPod. The rip_snoopy35 e-mail address is registered to Anthony McKinney. Conyers refers to McKinney as his stepson. McKinney lives with Conyers's parents next door to Conyers's home. The iPod was inscribed with the words "Project Crippin" and was shipped to Trey Stone at McKinney's mother's address. McKinney subsequently pawned the iPod.
McKinney pleaded guilty in this case to two counts of receiving stolen property (§ 496, subd. (a)) and one count of identity theft (§ 530.5, sub. (a)). As to all three counts, he admitted the truth of criminal street gang benefit enhancement allegations (§ 186.22, subd. (b)). He also pleaded guilty to active participation in a criminal street gang (§ 186.22, sub. (a)). The trial court suspended imposition of sentence and placed him on formal probation for three years, conditioned upon him serving 365 days in county jail.
During a search of Conyers's home, Bowen found a notebook containing handwritten notes listing Barber's name and personal identification information, including his birth date, social security number, driver's license number, and home address. The notebook also contained Jensen's name and address. In addition, Bowen found mail addressed to Jensen at Conyers's address.
During a search of Jensen's home, sheriff's corporal Brian Robertson seized Jensen's car, some notebooks and an address book. The notebooks contained some of the e-mail addresses used to make fraudulent purchases with Barber's credit card information, including the ecarr951 e-mail address, player29@sbcglobal.net (player29 e-mail address), and lillies 2@yahoo.com. The address book contained a listing for Conyers referring to him as "Slag Conyers."
At the top of one of the notebook pages was the notation "29 West." The number 29 is a common symbol for the gang Westside Project Crips (WPC). The notation 29 West specifically refers to the WPC.
During a search of Conyers's parents' home, sheriff's investigator Brett Johnson found Barber's military identification and driver's license in a dresser in McKinney's room. Johnson also found a receipt for a credit union transaction with Barber's name on it. In addition, he found a credit card acceptance form with McKinney's signature. The form listed the rip_snoopy35 e-mail address as the contact e-mail address. "Snoopy" is the moniker for Dijuan Jones, a member of the WPC, who had lived in the area and died in a gang-related crime.
Johnson also found several different items with WPC references on them as well as a photo album containing photos of people, including McKinney, making WPC hand signs. One of the photos showed McKinney wearing a T-shirt memorializing Jones's passing, while making WPC hand signs and holding what appears to be a handgun. Another photo showed McKinney making WPC hand signs with the caption, "Me Bagin [sic] At DiJuan's Grave Cite [sic]." The album also contained a program from Jones's funeral service.
A gang expert interpreted "bagin" to mean banging, which is short for gang banging. The "b" in bagin was crossed out. According to the expert, Crips gang members will sometimes cross the letter b out of words because they associate the letter b with rival Bloods gangs.
During an interview with Bowen, Conyers admitted receiving the air conditioner and the car stereo. He additionally admitted using the ecarr951 e-mail address and ordering the items using Barber's information. He told Bowen that both Jensen and McKinney helped him obtain the items. He denied being an active WPC member, stating he had once been a member, but stopped representing the gang after one of his friends was killed in a gang-related incident. However, he told Bowen he knew there was gang graffiti in his parents' house and had figured out McKinney was affiliated with the gang. Conyers's son is also affiliated with the WPC.
During an interview with Bowen, Jensen admitted to ordering and receiving the car parts and having a friend install them in her car. She additionally admitted using Barber's information to place the order. She said McKinney and one of his friends came to her with Barber's information and asked her to try to order things with it. She did and then gave the information back to them. She said she and Conyers used Barber's information to order some things, specifically her car parts. She denied ever using the ecarr951 e-mail address or having anything to do with the purchase of the car stereo or air conditioner sent to Conyers's address. She also denied placing the orders for the iPod and the tennis shoes. Regarding the tennis shoes, she said she and Conyers shared many e-mail addresses. Anything she did not order, he probably did.
At trial, Conyers testified he had known Jensen for several years. Jensen occasionally visited Conyers's home as one of Jensen's children is related to Conyers's children. Jensen occasionally used Conyers's computer and Internet account, which was in the name of Victoria Player. Conyers had two e-mail addresses he used to commit credit fraud, fraud, and identity theft: the ecarr951 e-mail address and the player29 e-mail address. He obtained Barber's credit card information from McKinney and used the information to buy the air conditioner and car stereo. McKinney also provided Barber's information to Jensen. Conyers saw Jensen use the information.
This was not the only criminal case Conyers and Jensen have been involved in together. Conyers was previously convicted of receiving stolen property and Jensen was his codefendant in that case as well.
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Conyers acknowledged the WPC is a gang in his neighborhood. Conyers also acknowledged having friends in the WPC, but denied ever being a member himself. Although he admitted his nickname was Slag, he said he received the nickname when he was participating in high school sports and not from being a WPC member. As part of his guilty plea in this case, he admitted to the truth of a criminal street gang benefit enhancement allegation; however, he said he did not actually use Barber's credit card information to benefit WPC. He used it to benefit himself. He admitted to the enhancement allegation in order to get a better sentence than he would have if he went to trial and lost. He acknowledged that he, Jensen, and McKinney all benefitted from the burglary of Barber's home. He also benefitted from McKinney giving him Barber's credit card information and from Jensen using the credit card information on the computer.
Riverside County Sheriff's Deputy Sonny Cortez testified Black gangs are typically divided into two factions: Bloods and Crips. Crips gang members typically wear blue clothing. To determine whether someone is a gang member, law enforcement officers look at their clothing, tattoos, associations with other gang members, graffiti or other markings or embellishments on their personal items, and their photographs. No one factor is determinative.
To remain in a gang, a gang member is expected to "stay down for the neighborhood," meaning the member will not denounce the neighborhood, will participate in gang activities, and will help other gang members and conceal their identities. It would be difficult for a person to remove himself from a gang and remain in the gang's neighborhood as the person will still be expected to "be down for the neighborhood."
Senior gang members typically stop doing crimes and reap the benefits from the younger gang members' crimes. It is rare for a gang member to have a job. Gang members and associates usually obtain money by theft. It is common for gang members to have different specialties. For instance, some may be better at car thefts and some may be better at obtaining weapons.
Gang associates are not gang members. They are usually family members or friends of gang members who hang out together and help gang members commit crimes. It would be very rare for someone who is not a gang member or an associate to commit a crime with a gang member as gang members typically do not trust nonmembers or nonassociates with their crimes.
Cortez believed the WPC was a criminal street gang based on the past convictions of WPC members, the number of members, and the members' use of common symbols. The WPC sometimes goes by the names 29th Street, the Avalon Crips, the PJs, and Westside. The WPC is a multi-generational gang. It has approximately 150 active members. The primary activities of the gang are robberies, burglaries, and drug sales.
Cortez believed McKinney was an active WPC member based on the photos of him making WPC hand signs. McKinney also told law enforcement officers he obtained Barber's information from two men, both of whom are known WPC members. Gang members generally would not bring the proceeds of their crimes to people who are not gang members or associates.
Cortez also believed Conyers was an active WPC member. He based his opinion on Conyers's continued use of the nickname Slag, his admission to being a former gang member, and his admission to the gang enhancement allegations in this case. A person without gang priors or gang contacts will typically not admit gang enhancement allegations. Although Conyers now claims he is no longer an active gang member, when he testified he hesitated to identify the gang members with whom he remains friendly because he did not want to implicate them. This suggests ongoing involvement with the gang.
Cortez did not believe Jensen was a member of the WPC, but he believed she was an associate of the gang. Cortez based his opinion on the fact McKinney came to her for assistance in using Barber's credit card information. A gang member would not normally commit crimes with someone who is not a gang member or an associate. She also committed the crimes using aliases, e-mail addresses, and passwords containing numbers and words identified with the WPC.
In addition, the father of one of Jensen's children was a WPC member and she continued to associate with WPC members after her relationship with him ended. The fact that she committed crimes with an older gang member, such as Conyers, and had access to his e-mail information shows she is respected and trusted by the gang.
In response to a hypothetical question, Cortez opined crimes like Jensen's were committed in association with and to assist WPC gang members. He explained that, by employing her knowledge of committing identity theft, a person like Jensen provided WPC members with the means of obtaining stolen property. Moreover, using aliases and e-mail addresses with gang references broadcasts the gang. Gang members frequently broadcast the gang in this fashion.
On cross-examination, Cortez acknowledged there is no proof that any of the stolen property at issue in this case was going to be sold to further aid the WPC. Nonetheless, he stated it was not probable for two gang members to be involved in a crime together without furthering or promoting the gang. He also stated it was not probable for a gang member and an associate to be involved in a crime without furthering or promoting the gang, however, on cross-examination he acknowledged it is probable a gang member and someone who was not a gang member or an associate could commit a crime without furthering the gang.
Defense Evidence
Former Riverside police officer Randal Hecht was lead investigator for the police department's gang unit for over six years. He is familiar with the WPC and has spoken with WPC members. Hecht did not believe Jensen's past relationship with the WPC member who fathered one of her children or the notations in the notebooks and address book found in her home indicated gang involvement or association, although he acknowledged the number 29 appears in WPC graffiti. He also did not believe the e-mail addresses and passwords she used to commit the crime, or her knowledge and use of Conyers's nickname, indicated gang involvement or association. In his view, someone could have a notebook with e-mail addresses and passwords referencing WPC without originating these items or representing the gang.
Hecht agreed McKinney's conduct, including being photographed making gang signs and having an iPod inscribed with "Project Crippin," could indicate gang involvement. Although Hecht acknowledged there were indications Conyers was a WPC member or associate until 1989 or 1990, he believed there were no indications Conyers was a gang member when the crimes in this case occurred.
Because Jensen has a familial relationship with Conyers and McKinney, Hecht believed it was probable she became acquainted with WPC members and learned their names and monikers from visiting with the family. He did not believe that knowing WPC members and their monikers made her a WPC associate. Similarly, he did not believe her receipt of Barber's credit card information from a WPC member made her a WPC associate, since the person she received the information from was a family member.
In response to a hypothetical question by defense counsel, Hecht opined the WPC received no benefit from a person like Jensen ordering car parts for herself with Barber's credit card information. Rather, the benefit was personal to her. However, in response to a different hypothetical question by the prosecutor, Hecht opined a person similarly situated to Jensen probably committed the crimes in association with the WPC.
DISCUSSION
I
Sufficiency of the Evidence Claim
To establish the truth of a criminal street gang enhancement allegation under section 186.22, subdivision (b)(1), "the prosecution must prove that the crime for which the defendant was convicted had been '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.' " (People v. Gardeley (1996) 14 Cal.4th 605, 616-617, italics added.) Jensen contends there was insufficient evidence to support the jury's true findings on the criminal street gang benefit enhancement allegations because the prosecution failed to prove: (1) she was a gang member, (2) she committed the offenses for the benefit of, at the direction of, or in association with the WPC, and (3) she committed the offenses with the specific intent to benefit, promote, or further aid in criminal conduct by WPC members. She further contends Deputy Cortez's expert opinion provided an insufficient basis for the true finding because his opinion was based on unreliable and inadmissible hearsay information, specifically police investigative reports, police interviews, and the guilty pleas of her codefendants.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
The requirements for establishing a criminal street gang benefit enhancement contain disjunctive elements allowing imposition of the enhancement under multiple theories. In this case, the prosecution proceeded on the theory that Jensen committed her crimes in association with the WPC with the specific intent to assist WPC members. Contrary to Jensen's assertion, neither this theory nor any other potentially applicable theory required the prosecutor to prove Jensen was a gang member. (In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207 [gang membership is not a requirement for an enhancement under section 186.22, subdivision (b)].) Thus, the absence of proof on this point does not require reversal of the enhancements.
As to the elements the prosecution was required to prove, the prosecution may meet its burden by presenting testimony from a gang expert. (People v. Gonzalez (2006) 38 Cal.4th 932, 944; People v. Gardeley, supra, 14 Cal.4th at pp. 617-620; People v. Williams (2009) 170 Cal.App.4th 587, 609, 621.) That is what occurred in this case. The prosecution presented the expert testimony of Cortez who opined McKinney and Conyers were current WPC members. As to McKinney, Cortez based his opinion on McKinney's photographs of himself making WPC hand signs and McKinney's receipt of Barber's credit card information from WPC members.
As to Conyers, Cortez based his opinion on Conyers's past admission to being a WPC member, his continued use of a moniker, and his admission to criminal street gang enhancement allegations as part of his guilty plea in this case. He also based his opinion on indications Conyers had not been excluded from the WPC, including his continued residence in WPC territory and association with WPC members, and his reluctance to state the names of WPC members he knows.
Although Cortez did not believe Jensen was a WPC member, he believed she was a WPC associate and committed her crimes in her capacity as such to assist WPC members, specifically McKinney and Conyers. He based his opinion on Jensen's past relationship with a WPC member that produced a child and her ongoing interactions with current WPC members, including McKinney and Conyers, after her relationship with her child's father ended. In addition, Cortez based his opinion on McKinney and Conyers's affirmative engagement of Jensen as a crime partner, since gang members typically do not commit crimes with people who are not gang members or associates for trust reasons. He also based his opinion on Jensen's use of aliases, e-mail addresses, and passwords containing WPC-related references to commit her crimes as these items broadcast the gang.
We conclude a jury could reasonably infer from this evidence Jensen committed her crimes in association with the WPC with the specific intent of assisting WPC members. The fact that she also personally benefited from her crimes does not preclude this inference.
Implicitly recognizing the importance of the gang expert's testimony to the prosecution's case, Jensen contends the gang expert's testimony was not sufficient to meet the prosecution's burden because it was based on inadmissible hearsay. We disagree.
A gang expert's opinion may be based on any matter perceived by or personally known or made known to the gang expert at or before trial, whether or not the matter is admissible, as long as the matter is of the type gang experts reasonably rely upon in forming their opinions and the gang expert is not precluded by law from considering the matter. (Evid. Code, § 801, subd. (b); People v. Hill (2011) 191 Cal.App.4th 1104, 1121.) "Thus, a gang expert may rely upon conversations with gang members, on his or her personal investigations of gang-related crimes, and on information obtained from colleagues and other law enforcement agencies." (People v. Hill, supra, at pp. 1121-1122.) A gang expert may also rely on records of convictions. (See, e.g., People v. Duran (2002) 97 Cal.App.4th 1448, 1464.) This, along with his experience and training, is precisely the kind of information Cortez relied upon in this case.
Jensen, nonetheless, claims the information relied upon by Cortez was unreliable. There is no question the information on which gang experts base their opinions must be reliable. (People v. Gardeley, supra, 14 Cal.4th at p. 618; People v. Hill, supra, 191 Cal.App.4th 1104, 1121.) However, Jensen has not identified in what respects the information upon which Cortez based his opinion was unreliable. Her chief complaint about the information, other than the confrontation clause issue discussed in part II, post, is that the information was inadmissible. Since Evidence Code section 801, subdivision (b), and the case authorities interpreting and applying it in the gang context permit gang experts to rely on the type of information upon which Cortez relied, the mere inadmissibility of the information is not sufficient to demonstrate its unreliability. Consequently, Jensen has not established any error in Cortez's utilization of the information or any related infirmity in his opinions. As his opinions provide ample support for the jury's findings, we conclude there is substantial evidence to uphold the findings.
II
Violation of Constitutional Right of Confrontation Claim
Jensen next contends Cortez's reliance on Conyers's out-of-court statements, McKinney's out-of-court statements, McKinney's guilty plea, and information obtained from police reports and police interviews violated her constitutional right of confrontation as she had no opportunity to cross-examine the source witnesses. We disagree.
"As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness." (Bullcoming v. New Mexico (2011) ____ U.S. ____ [131 S.Ct. 2705, 2713].) However, California courts have consistently held "admission of expert testimony based on hearsay will typically not offend confrontation clause protections 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.' " (People v. Sisneros (2009) 174 Cal.App.4th 142, 154, citing People v. Thomas (2005) 130 Cal.App.4th 1202, 1210; see also People v. Hill (2011) 191 Cal.App.4th 1104, 1127, 1131; People v. Ramirez (2007) 153 Cal.App.4th 1422, 1424, 1426-1427; People v. Cooper (2007) 148 Cal.App.4th 731, 746-747; but see People v. Hill, supra, at pp. 1129-1137 [critiquing the rule and offering an alternative analysis].)
Federal courts have generally followed the same reasoning, but have held an expert's testimony may violate a defendant's right of confrontation when the expert "simply parrots another individual's testimonial hearsay, rather than conveying her independent judgment that only incidentally discloses testimonial hearsay to assist the jury in evaluating her opinion." (United States v. Pablo (4th Cir. 2010) 625 F.3d 1285, 1292-1293.) In that circumstance, "the expert is, in effect, disclosing the testimonial hearsay for its substantive truth and she becomes little more than a backdoor conduit for otherwise inadmissible testimonial hearsay." (Ibid.) Thus, as long as the expert is "giving an independent judgment" and not "merely acting as a transmitter for testimonial hearsay," the expert's testimony does not violate a defendant's right of confrontation. (United States v. Ayala (4th Cir. 2010) 601 F.3d 256, 275; United States v. Johnson (4th Cir. 2009) 587 F.3d 625, 635.)
Here, Cortez's reliance on Conyers's out-of-court statements plainly did not violate Jensen's right of confrontation as Conyers testified at trial, providing Jensen's counsel an opportunity to question Conyers about these statements. Cortez's reliance on other inadmissible evidence, including McKinney's out-of court statements and various types of information obtained from other law enforcement officers, also did not violate Jensen's right of confrontation. The record shows the information was not offered for its truth and the trial court instructed the jury on the limited purpose of the information. We presume the jury understood and followed this instruction. (People v. Murtishaw (2011) 51 Cal.4th 574, 591.) Further, the record shows Cortez used the information to form and convey his independent judgment on the gang issues and did not act merely as a transmitter for testimonial hearsay. Jensen's gang expert used essentially the same information in essentially the same fashion. Accordingly, we conclude Jensen has not established Cortez's testimony regarding the basis for his opinions violated her constitutional right of confrontation.
DISPOSITION
The judgment is affirmed.
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MCCONNELL, P. J.
WE CONCUR:
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HALLER, J.
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MCINTYRE, J.