Opinion
F076530
03-16-2020
THE PEOPLE, Plaintiff and Respondent, v. NICOLAS ANDRES MARROQUIN, Defendant and Appellant.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PCF305430)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Michael B. Sheltzer, Judge. Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Nicolas Andres Marroquin was convicted of multiple counts of attempted murder and other crimes, including active participation in a criminal street gang in violation of Penal Code section 186.22, subdivision (a), arising out of a gang-related shooting at a gas station. The jury found true firearm enhancements under sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (c), as well as gang enhancements under section 186.22, subdivision (b). He was sentenced to 54 years to life in prison.
All unlabeled statutory references are to the Penal Code.
On appeal, Marroquin claims that portions of the gang expert's testimony related case-specific hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). He claims, in turn, there was insufficient evidence to support his conviction for the substantive gang offense (§ 186.22, subd. (a)) and the jury's true findings on the gang enhancements (§ 186.22, subd. (b)). He additionally contends his case should be remanded for an exercise of discretion by the trial court to consider striking the firearm enhancements. In supplemental briefing, he contends he is also entitled to a remand for a Franklin hearing.
People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
We agree there was insufficient evidence to support his conviction for the substantive gang offense, and his conviction on that count must be reversed. We also agree he is entitled to a remand for an exercise of discretion to consider striking the firearm enhancements as well as for a Franklin hearing. However, we disagree the gang enhancements were not supported by sufficient evidence, and we affirm the jury's findings on those enhancements.
STATEMENT OF THE CASE
On March 3, 2015, an information filed in the Tulare County Superior Court charged Marroquin with the following: four counts of attempted murder (§ 664/187, subd. (a); counts 1, 3, 5, & 7), with four counts of assault with a firearm (§ 245, subd. (a)(2); counts 2, 4, 6, & 8), one count of maliciously shooting at a person from a vehicle (§ 26100, subd. (c); count 9), one count of being a convicted felon in possession of a firearm (§ 29800, subd. (a); count 10), one count of being a felon in possession of ammunition (§ 30305, subd. (a)(1); count 11), and one count of active participation in a criminal street gang (§ 186.22, subd. (a); count 12). In all counts except for count 12, it was alleged Marroquin acted for the benefit a criminal street gang (§ 186.22, subds. (b)(1)(B) & (b)(5)). As to counts 1, 3, 5, and 7, it was alleged Marroquin personally discharged a firearm (§ 12022.53, subd. (c)). As to counts 2, 4, 6, and 8, it was alleged he personally used a firearm (§ 12022.5, subd. (a)(1)).
A trial begun in January 2016 ended in a mistrial. The second trial began in September 2017. On September 7, 2017, the jury acquitted Marroquin on count 1, but convicted him on the remaining counts and found true all of the enhancements.
The victim in counts 1 and 2 was R.B., who is discussed post.
On October 5, 2017, Marroquin was sentenced to 54 years to life as follows: four years on count 2, plus 10 years (§ 12022.5, subd. (a)(1)), plus five years (§ 186.22, subd. (b)(1)(B); 15 years to life on count 3, plus 20 years (§ 12022.53, subd. (c)), to run consecutively with the sentence imposed on count 2. The court imposed concurrent sentences on the remaining counts and stayed the sentences pursuant to section 654.
On October 12, 2017, Marroquin filed a timely notice of appeal.
FACTS
I. Prosecution's Evidence
In the late afternoon of August 7, 2014, R.B. went to a gas station store in Tipton to purchase beer. Inside the store, R.B. ran into Juan, his fourth grade classmate. Juan was with his brothers, E. and F. R.B. and Juan talked inside of the store.
To respect their privacy, we refer to some persons by initials or first names only. (Cal. Rules of Court, rule 8.90.) No disrespect is intended.
After the three brothers and R.B. exited the store, a van drove up. R.B. and Juan stopped in the middle of the parking lot, and Juan began arguing with people in the van. Juan and the people in the van threw gang signs at each other. Juan threw up a "three" sign, and R.B. testified he knew that was a sign associated with the "Southerners" gang. The men in the van called Juan and his brothers "scraps" and were saying "north side." E. recalled Juan and the people in the van were "flipping each other off" and Juan was cursing at them and saying, "What's up?" E. got angry and joined his brother in flipping off the people in the van. E. said he saw what he believed to be a "four" sign being thrown by the persons in the van.
Juan challenged the men in the van to a fight, but the men did not get out of the van. Juan then directed one of his brothers to get a gun. One of the brothers retrieved a black handgun that was wrapped in a blue bandana and gave it to Juan, who pointed the gun at the people in the van. R.B. headed for his car once he saw Juan with the gun.
Juan and his brothers then got into E.'s truck and were driving away when their truck was hit with gunfire. The front of the truck, the front and back windows, and the front right passenger side were hit with bullets. R.B. said he heard more than five gunshots coming from the van. After the shooting stopped, the van began to drive out of the gas station. But before the van drove out of the parking lot, the driver stopped and fired a single shot at R.B's car with R.B. inside, striking the trunk of the car. R.B. recognized Marroquin as the driver of the van because the two went to high school together. R.B. recalled that Marroquin "hung around" Northern gang members in high school.
R.B. confirmed Marroquin was not present when Juan was arguing with the people in the van, and R.B. did not see Marroquin throw any gang signs or argue with anyone. R.B. did not have a gun, was not involved in the argument, and was not a gang member.
The gas station's video surveillance system recorded the incident and the footage was played for the jury. The video captured some of the argument between Juan and the people in the van, as well as the shooting. R.B. confirmed the van in the video was the one from which he heard gunshots. The video showed Marroquin exiting the store and opening the van's driver's side door, and then a couple seconds later, E.'s truck driving away. Approximately seven seconds later, Marroquin is between the van door and the driver's seat and is shooting a firearm toward E.'s truck which is no longer in the video frame. Approximately six seconds after that, the shooting has stopped and the van begins to back out. The video then shows the van applying its brakes and slowing down behind R.B.'s vehicle before driving out of the parking lot.
E. testified he has tattoos of one dot on one elbow and three dots on his other elbow. He said he used to associate with the Southern gang in high school but is no longer associated with them, and he said he knew that Juan was currently a Vicky's Town gang member, which is aligned with the Southern gang. Juan had a Vicky's Town tattoo on his hands. F. denied being affiliated with any gang but, at the time of the shooting, he was wearing a red soccer shirt with the number 13 on it.
After the shooting, Deputy William Meek found a bullet hole in an office window and wall across the street from the gas station and collected 13 .45-caliber casings, most of which were found right in front of the gas station store.
Approximately two weeks after the shooting, on August 22, 2014, Fresno Police Officer Paul Cervantes pulled Marroquin over for a traffic violation. Marroquin had a passenger. Officer Cervantes asked Marroquin for his license and Marroquin said he had a license but did not have it with him. Officer Cervantes asked if there were any guns in the car, and Marroquin sighed and said yes. The officer found a Glock Model 21 firearm loaded with seven live .45-caliber rounds in Marroquin's waistband. The gun was later given to a ballistics expert for testing and, from the casings collected at the shooting scene, the expert determined that this gun was the one that fired the rounds.
Officer Cervantes advised Marroquin of his Miranda rights and Marroquin provided a statement. Marroquin apologized and mentioned that he previously had been on probation for a firearms-related offense. He said he had the gun on him because he has problems with gang members. He maintained he was not a gang member, but that his family are "Norteno" gang members. He explained that rival gang members believe he is a gang member because of his association with his family members. He was arrested, the gun was confiscated, and he was released.
Miranda v. Arizona (1966) 384 U.S. 436.
On October 28, 2014, Tulare County Sheriff's Deputy Jeremy Rose executed a search warrant at Marroquin's Tulare residence. Rose found inmate-generated mail from Corcoran State Prison addressed to Marroquin, photographs of Marroquin wearing red, a gun cleaning kit, and a document from Fresno County indicated Marroquin had recently been arrested and released.
Photographs of the evidence found in Marroquin's home were admitted into evidence. However, evidence of the contents of a letter found in Marroquin's home was excluded on the ground it lacked foundation.
Marroquin was arrested and agreed to speak to Deputy Rose after being advised of his Miranda rights. Marroquin said that, about two months earlier, he and two friends had a "gang-related" confrontation with other people at a gas station. Marroquin said he recognized one of the persons because he had gone to school with him, and he knew that person had gang ties. He explained some hand gestures were thrown and it escalated from there. Marroquin told Deputy Rose the shooting victim threw three fingers to the front passenger of the van, and the front passenger threw four fingers. Marroquin was in the store when the exchange between the victim and the van's passenger occurred, but when he came out, he was informed by one of the van's passengers, "Medrano," that one of the victims had pointed a gun. Marroquin then retrieved a Glock .45-caliber handgun, pointed it at the occupants of the truck, and fired several rounds. Marroquin said he did this because the victims were rival gang members and also because he feared for his safety and the safety of his passengers. Additionally, he explained he saw a person who he believed instigated the encounter, and fired one last round at him out of spite. He said the gun he used that day was taken by the Fresno Police Department, and he said he carried the gun to protect himself because of his gang ties.
According to the gang expert's testimony, the number three is associated with the Sureno gang and the number four is associated with the Norteno gang.
Deputy Rose testified Marroquin had the word "Pixlon" tattooed across his back and also had a tattoo of his daughter's name and birth date. A photograph of the Pixlon tattoo was shown to the jury. Marroquin also told Deputy Rose he was associated with the Northern street gang.
At three different places in the reporter's transcript, the word "Pixlon" was transcribed as "Big Sloan." However, we are confident the "Big Sloan" transcription was a mistake.
Marroquin's Prior Firearm-Related Offenses
On March 19, 2010, Tulare County Sheriff's Detective Josh Howser was working with the gang violence suppression unit, conducting a surveillance detail on a house in Earlimart. Detective Howser came into contact with Marroquin as he was leaving the house. Learning Marroquin was currently on probation, Detective Howser took him to his house so a probation search could be conducted. In Marroquin's bedroom, Sergeant Merced Zamora found two daggers, 67 live .22-caliber rounds, and a gun holster. Marroquin's possession of these items was a violation of his probation terms.
On February 9, 2011, Tulare County Sheriff's Sergeant Travis Shaw heard a call over the radio about a stolen vehicle being tracked by On Star in the Pixley area. He responded to the location and saw a pickup truck in front of a house. There were individuals moving towards the garage and appearing to flee. All of the individuals were ordered to the ground, and Marroquin was among them. Deputy Shaw conducted a pat-down search of Marroquin, found a partially loaded .45-caliber handgun in his front waistband, and arrested him. Deputy Shaw advised Marroquin of his Miranda rights and completed a booking questionnaire. In response to whether he has any gang affiliation, Marroquin said he affiliates with Northerners. A certified conviction relating to this offense was admitted into evidence.
Gang Expert's Testimony
Tulare County Sheriff's Sergeant David Delacruz had been an officer for over 23 years. He previously had been assigned to the gang unit in Tulare County and was in that role for close to five years, including during the events in the instant case. Sergeant Delacruz had received over 1,000 hours of training on criminal street gangs and had attended multiple trainings involving Northern and Southern gangs. He estimated he had had contact with several hundred Northern gang members, and he was familiar with the Northern gang and had investigated crimes committed by its members. He explained Tulare County is predominantly Northern gang territory, though there are some Southern gang members in the area.
Sergeant Delacruz testified the Northern gang descended from a prison gang called Nuestra Familia. The highest ranking leaders who control the gang are in prison, and outside of prison the gang is broken down into subsets. The subsets in Tulare County include Earlimart, Tulare County; La Villains; and Pixlon. Anyone involved in illegal activity for financial gain for the Northern gang had to pay taxes to Nuestra Familia.
Sergeant Delacruz said respect was the most important thing to a gang member. Respect is gained by "putting in work," which means to commit crimes for the benefit of the gang. The consequences for disrespecting a gang member include getting assaulted or murdered. When someone disrespects a Northern gang member, it is expected there will be an order from the gang's leadership to kill that person or do whatever is necessary to ensure the gang is not disrespected.
The Northern gang's main rival is the Southern gang. Sergeant Delacruz had investigated crimes where Northerners committed crimes against rivals, and explained that the main reason for those crimes was to instill fear in their rivals and to demonstrate power. He said a Northern gang member who comes across a rival would be expected to assault or shoot the rival, and failure to do so could result in that member getting assaulted or shot by fellow Northern gang members.
Sergeant Delacruz stated the Northern gang associates with the color red, the number 14, and the 49er's football team. One of the Northern gang's main hand signs is the number four. He said the Northern gang's primary activities include murder, assault, and selling drugs. The Sourthern gang associates with the color blue, the number 13, and the letter "M" for the Mexican Mafia, which is the prison gang from which the Southern gang evolved. Sergeant Delacruz confirmed Vicky's Town is a Southern gang subset. "Scrap" is a derogatory term for a Southern gang member and "buster" is a derogatory term for a Northern gang member.
Asked whether he was familiar with a certain Tulare County Sheriff's department case involving an assault with a deadly weapon on August 14, 2009 involving a person named Daniel Mendoza, Sergeant Delacruz said he was. He had not worked on the case himself, but he had spoken with officers who did and had the opportunity to review the case and the gang information related to it. On August 14, 2009, a Southern gang member was with his family when he "mad-dogged" a Northern gang member. A fight was about to start, and the Southern gang member's sister called for their father. The father tried to jump in and stop the fight and a Northern gang member stabbed the father. The gang words "ETZ, Earlimart Tulare County, 14" were yelled during the commission of the crime. The record of conviction admitted into evidence showed Rutilio Garcia and Daniel Mendoza were charged with assault with a deadly weapon for this incident, but the record shows that only Rutilio Garcia was convicted. It is unclear whether Mendoza was convicted. Garcia plead guilty to the substantive offense and admitted a section 186.22, subdivision (b) enhancement that the crime was committed for the benefit of a criminal street gang. Sergeant Delacruz said Mendoza was a Northern gang member at the time the crime was committed and said he "believed" Mendoza was specifically with the Earlimart, Tulare County subset. Sergeant Delacruz was not asked about Garcia's gang affiliation.
Sergeant Delacruz was asked about certain Tulare County Sheriff's case involving a person named Francisco Osuna. Again, Sergeant Delacruz did not work on the case, but spoke with officers who did and reviewed the case information. On February 22, 2009, Osuna was driving when an officer attempted to pull him over. Osuna tried to get away, but eventually was detained. An inventory search of his car revealed a "little ball size" of methamphetamine in the sun roof area. Osuna told law enforcement in an interview that he was a gang member with Earlimart, Tulare County, and was selling the drugs for the gang. A record of conviction admitted into evidence showed Osuna plead guilty to four crimes arising out of that incident, including possession for sale of a controlled substance (Health & Saf. Code, § 11378). Osuna also admitted a section 186.22, subdivision (b), special allegation on two of the four counts. Sergeant Delacruz opined Osuna was a member of the Northern gang at the time of the crime based on Osuna's own admission he was a gang member.
Sergeant Delacruz had never had contact with Marroquin, but researched whether Marroquin had had any prior contact with law enforcement officers. He had spoken with other officers regarding Marroquin, had read those officers' reports, and had reviewed field identification cards for Marroquin. Sergeant Delacruz was present in the courtroom for the entire trial and was the prosecution's final witness. He was aware of Marroquin's Pixlon tattoo, and had noticed Marroquin had tattoos of four dots on his fingers and one dot on another finger. Sergeant Delacruz said the Pixlon tattoo represented Marroquin's hometown of Pixley, and the dot tattoos represented the number 14. Marroquin did not have the dot tattoos at the time of the shooting.
Sergeant Delacruz opined Marroquin was a Northern gang member. The foundation of this opinion was his review of all available reports, review of field identification cards, and his conversations with other officers. Sergeant Delacruz said Marroquin met the following criteria used for identifying gang members: past self-admission, identified as a gang member by a reliable source (i.e. other officers), gang tattoos, gang clothing, involvement in gang crimes, association with other gang members, "possession of correspondence," and possession of gang material.
Sergeant Delacruz was also familiar with Antonio Medrano. Although he had never had any prior contacts with Medrano, Sergeant Delacruz had spoken with other officers who had had contact with him and had read those officers' reports. Sergeant Delacruz stated that Medrano had been identified as a gang member by a reliable source (i.e. other officers), had been involved in gang crimes, had admitted to being a gang member, and his own mother admitted that he associates with Northern gang members. Based on this, Delacruz opined that Medrano was a Northern gang member. Defense counsel's objection to Sergeant Delacruz's discussion of Medrano on foundational grounds was overruled.
The prosecutor posed a hypothetical incident to Sergeant Delacruz based upon the trial evidence. Sergeant Delacruz opined the hypothetical incident would have promoted or benefited the Northern criminal street gang by instilling fear in all rival gang members, former gang members, victims, and witnesses, and by demonstrating that the Northern gang is not to be "messed with." Also, the crime would go towards the fulfillment of the perpetrator's requirement to "put in work" for the gang. Furthermore, the shooter would be demonstrating his loyalty to the gang as well as his fearlessness.
Immediately after Sergeant Delacruz opined on the hypothetical, the prosecutor asked him if he had an opinion as to whether Marroquin was an active participant in the Northern gang on or about August 7, 2014. Sergeant Delacruz responded, "My opinion is that Mr. Marroquin was, you know, participating on behalf of the gang. Because what was said, and of course he has to participate in it to show that they can't disrespect the Northern gang. So he has to go ahead and do something about it. He has to prove that he's loyal to the Northern cause." Defense counsel objected to this as improper expert testimony about what Marroquin was thinking at the time; the court overruled the objection.
On cross-examination, defense counsel asked Sergeant Delacruz when Marroquin had "self-admit[ted]" to being a gang member. Sergeant Delacruz referred to his report and said there was an unprosecuted 2008 battery case in which Marroquin, age 16 at the time, admitted he associates with gang members. Defense counsel also asked which reliable source had ever identified Marroquin as a gang member, and Sergeant Delacruz answered it was other law enforcement officers. Sergeant Delacruz, referring to a field identification card, said Marroquin had been identified as a gang member by law enforcement officers at the following times: October 2008; January 2010; August 2010; June 16, 2011; July 2011; August 2011; and October 2011.
Defense counsel also asked Sergeant Delacruz what gang crimes he reviewed with which Marroquin was associated. Referring to his report, Sergeant Delacruz said the first was a 2008 gang-related crime in Pixley that was not prosecuted. The second was a 2009 incident involving a handgun, which Sergeant Delacruz said was previously discussed during the trial. In the third, Marroquin was implicated in a crime involving Northern gang members wherein a former gang member was shot, and through that case Sergeant Delacruz learned Marroquin's alias was "Piper." Sergeant Delacruz also mentioned a fourth incident, from 2010, wherein Marroquin was contacted by a gang detective while he was leaving a residence that was under surveillance, and Marroquin was identified in that incident as a gang member. Delacruz confirmed Marroquin had never been prosecuted for a crime with a gang enhancement, and confirmed Marroquin was not prosecuted on some of the incidents discussed.
We presume this is the 2008 battery Sergeant Delacruz had previously discussed.
We note that no incident from 2009 involving Marroquin and a handgun was ever discussed. Thus, we believe Sergeant Delacruz was referring to the February 9, 2011 incident in which Sergeant Shaw found a handgun on Marroquin's person as Marroquin was fleeing with other subjects.
II. Defense Evidence
Antonio Medrano was the only witness the defense called. On August 7, 2014, Marroquin, Medrano, and a man named Kevin drove to the gas station to buy cigars. Kevin was in the van's front passenger seat and Medrano was in the back in a wheelchair. Marroquin went into the store and Kevin and Medrano stayed in the van. Some other men kept looking at the van and one of them threw up a gang sign and said something to one of the other men outside of the van. One of the men handed a gun wrapped in a blue bandana to another, and the gunman pointed the gun at Medrano and said, "I'll kill all you busters right now." Medrano told the gunman that they did not want any problems and that they did not "bang." The gunman "got really amped, like happy," walked back to his truck, got in, rolled down the window, and pointed the gun outside of the window. Medrano thought the gunman was going to shoot at them. When Marroquin returned to the van, Kevin and Medrano told him to "watch out" because "the guy has a gun." Marroquin reacted by shooting at the men in the truck. Medrano had his head down while Marroquin was shooting. After the shooting, Marroquin shot once at another man who was in his car, and Medrano said he was concerned that man might have had a weapon as well.
Medrano was wearing a red Philadelphia baseball cap at the time of the shooting. Medrano had been shot three times and one of the shootings left him confined to a wheelchair. He admitted he still "kick[ed] it with northerners," although he had dropped out of the gang. He said Kevin was not in a gang and did not throw any gang signs. One of the other men said "What's up," and Kevin said "What's up" back to them as if to say hi to them. That is when one of the men threw up a three. Medrano admitted he lied to investigators in 2015 when he told them only he and Marroquin were in the van.
DISCUSSION
I. Substantive Gang Offense and Gang Enhancements
A. The STEP Act
"The California Street Terrorism Enforcement and Prevention Act (STEP Act; § 186.20 et seq.) was enacted in 1988 'to seek the eradication of criminal activity by street gangs.' (§ 186.21.) The STEP Act creates both a substantive offense for active participation in any criminal street gang [herein referred to as street terrorism] (§ 186.22, subd. (a)) and an enhancement to be imposed where any person is convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b))." (People v. Lara (2017) 9 Cal.App.5th 296, 326 (Lara).) In this case, Marroquin challenges both his conviction of the substantive gang offense and the jury's true findings on the gang enhancements.
The STEP Act provision establishing street terrorism as a stand-alone offense provides as follows: "Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." (§ 186.22, subd. (a).)
The gang enhancement provision of the STEP Act applies when a person is convicted of a felony 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," and establishes a sentence enhancement of two, three, or four years' imprisonment for most felonies. (§ 186.22, subd. (b)(1).)
The existence of a criminal street gang is an element of both the substantive offense of street terrorism and the gang enhancement charge. (People v. Vasquez (2016) 247 Cal.App.4th 909, 922.) A criminal street gang is defined as an "ongoing organization, association, or group of three or more persons" that shares a common name or common identifying sign or symbol; has as one of its "primary activities" the commission of one or more enumerated offenses; and "whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).) A "pattern of criminal gang activity" may be established by proving that gang members committed, attempted commission of, or were convicted of, two or more enumerated offenses, known as predicate offenses. (§ 186.22, subd. (e).)
B. Marroquin's Contentions
Marroquin claims his conviction of the substantive gang offense and the jury's true finding of the gang enhancements were not supported by sufficient evidence. In making these claims, he argues that the gang expert related improper testimonial hearsay to the jury in violation of Sanchez, supra, 63 Cal.4th 665 and gave an improper opinion on Marroquin's guilt.
We first analyze Marroquin's admissibility of evidence claims and determine whether he was prejudiced by any errors. After deciding those claims, our analysis turns to whether the substantive gang offense and gang enhancements were supported by substantial evidence. Ultimately, we conclude there was sufficient evidence to support the gang enhancements, but insufficient evidence to support the substantive gang offense.
C. Standard of Review
To determine the sufficiency of the evidence to support a conviction or an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar); People v. Tripp (2007) 151 Cal.App.4th 951, 955 (Tripp).) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond (1969) 71 Cal.2d 745, 755.) If the circumstances, plus all the logical inferences the trier of fact might have drawn from them, reasonably justify a finding, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (Albillar, supra, at p. 60; Tripp, supra, at p. 955.) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' " (People v. Lee (2011) 51 Cal.4th 620, 632.)
D. Sanchez
Marroquin argues Sergeant Delacruz related testimonial hearsay to the jury in violation of Sanchez, supra, 63 Cal.4th 665 when he testified regarding the two predicate offenses (committed by Garcia and Osuna), Marroquin's past crimes and gang participation, and Medrano's gang membership. The claimed inadmissibility of this evidence forms part of the basis for his argument there was insufficient evidence to support his conviction of the substantive gang offense and the jury's true findings on the gang enhancements. We conclude that even if portions of Sergeant Delacruz's testimony should have been excluded under the standards enunciated in Sanchez, the improper admission of any testimonial hearsay does not require reversal as it was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)), and, there is no reasonable probability that Marroquin would have obtained a more favorable outcome in the absence of the admission of any nontestimonial case-specific hearsay. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)).
1. Background Law
In Sanchez, the prosecution's gang expert testified he had worked as a gang officer for 17 years and investigated more than 500 gang cases. (Sanchez, 63 Cal.4th at p. 671.) While he had never met the defendant and had never been present during any police contacts with him, the gang expert had reviewed the defendant's "STEP notice," which was provided to a suspected gang member to warn him or her of criminal exposure for participating in gang crimes. The expert also reviewed the defendant's "field identification" (FI) card chronicling his gang history. (Id. at pp. 672-673.) The gang expert described four reports of police contacts with the defendant and related statements contained in police documents. (Ibid.) The expert testified about the Delhi gang culture, its activities, territory, and the offenses committed by other Delhi gang members. (Id. at p. 672.) The expert opined, based on all this information, that the defendant was a member of the Delhi gang and had possessed the gun and drugs as charged to benefit the gang. (Id. at p. 673.)
The California Supreme Court reversed the gang enhancement, holding the expert's testimony regarding the defendant's gang membership was based on erroneously admitted evidence. (Sanchez, supra, 63 Cal.4th at pp. 670-671.) The court "adopt[ed] the following rule: When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.) The court identified testimonial hearsay statements to be those made "primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.)
The Sanchez court, however, carefully limited the reach of its holding. First, it explained, "Our decision does not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field.... Thus, our decision does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise." (Sanchez, 63 Cal.4th at p. 685.) The court found the gang expert's testimony about general gang behavior and his descriptions of the conduct and territory of Sanchez's gang were admissible "based on well-recognized sources in [the expert's] area of expertise." (Id. at p. 698.)
Second, the Sanchez court emphasized, "Any expert may still rely on hearsay in forming an opinion and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which his opinion rests.... There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception. [¶] What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, 63 Cal.4th at pp. 685-686.)
From the facts before it, the Sanchez court concluded the gang expert's testimony relating case-specific information obtained from police reports was improper testimonial hearsay because it concerned case-specific facts "gathered during an official investigation of a completed crime." (Sanchez, 63 Cal.4th at p. 694.) The expert testified about the portion of STEP notices retained by the police, which were signed by an officer under penalty of perjury and included the "defendant's biographical information, whom he was with, and what statements he made." (Id. at p. 696.) The court held that this information was sufficiently formal to constitute testimonial hearsay. (Id. at pp. 696-697.)
Here, Marroquin contends portions of Sergeant Delacruz's testimony relating to the predicate offenses, Marroquin's past criminal conduct and gang affiliation, and Medrano's gang affiliation impermissibly related case-specific facts to the jury in violation of Sanchez.
There is a split of authority among the Courts of Appeal regarding whether a gang expert's testimony about predicate offenses entails "case-specific facts" as contemplated by Sanchez. One view holds that facts related to predicate offenses are case specific. (Lara, supra, 9 Cal.App.5th at p. 337; People v. Ochoa (2017) 7 Cal.App.5th 575, 583, 588-589.) The other view is that evidence of a gang's pattern of criminal activities by alleged members is only "general background information," and as such a qualified expert may relate hearsay while testifying about predicate offenses. (People v. Blessett (2018) 22 Cal.App.5th 903, 943-945, review granted Jun. 8, 2018, S249250 (Blessett); People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411.)
We believe the second view is the correct one based on our Supreme Court's holding in Sanchez. In People v. Meraz (2018) 30 Cal.App.5th 768 (Meraz), review granted March 27, 2019, S253629, the Court of Appeal reiterated the limitation the Sanchez court imposed on its ruling, to wit, that "facts are only case specific when they relate 'to the particular events and participants alleged to have been involved in the case being tried.' " (Meraz, at p. 781, quoting Sanchez, 63 Cal.4th at p. 676.) In contrast are facts "relevant to the 'gang's history and general operations.' " (Meraz, at p. 781, quoting Sanchez, at p. 698.) The Meraz court concluded that a gang expert's testimony about, among other topics, a gang's "pattern of criminal activities" was "general background testimony" and unrelated to the defendants or offenses tried in that case. (Meraz, at p. 781.) Accordingly, Sanchez did not require exclusion of that testimony.
In Blessett, supra, 22 Cal.App.5th 903, the Court of Appeal held that facts regarding gang membership of defendants to predicate crimes used to establish a pattern of gang activity are not "case-specific." The court there first observed that Sanchez did not address predicate offenses, but instead, facts used by a gang expert to establish a defendant's gang membership. (Blessett, at p. 944.) The court then concluded that facts regarding predicate facts are "historical facts related to the gang's conduct and activities. These facts pertain to the gang as an organization and are not specific to the case being tried. They establish that the 'organization, association, or group' has engaged in a 'pattern of criminal gang activity' and is thus a criminal street gang (§ 186.22, subd. (f)) irrespective of the events and participants in the case being tried. A predicate offense and the underlying events are essentially a chapter in the gang's biography." (Blessett, at pp. 944-945, italics omitted.)
Finally, the Blessett court held an "expert's testimony concerning the underlying facts of [ ] predicate offenses [does] not violate [a] defendant's confrontation clause rights" because such evidence is "general background information about [a] gang's history and prior conduct." (Blessett, supra, 22 Cal.App.5th at p. 947.) Such general background information " 'is not considered testimonial for confrontation clause purposes.' " (Id. at p. 948.)
2. Forfeiture
The People claim that Marroquin did not object below on hearsay or confrontation clause grounds to the testimony he now contends violated Sanchez, and that his failure to do so bar reviews of his claim. Marroquin maintains he preserved his argument for appeal by filing an appropriate motion in limine. To the extent any of these claims has been forfeited, Marroquin claims counsel was ineffective. We conclude his Sanchez claims concerning testimony relating to persons other than Marroquin were preserved, but his claims concerning testimony relating to himself were forfeited. We conclude counsel was not ineffective for failing to preserve these forfeited claims because Marroquin suffered no prejudice.
"[A] motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a motion is made and denied, the issue is preserved for appeal." (People v. Morris (1991) 53 Cal.3d 152, 190, italics omitted, overruled in part by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
If a party prevails on an in limine motion to exclude evidence and the other party ignores the ruling and asks a question that will lead to testimony involving the excluded evidence, the party that prevailed on the motion to exclude "cannot simply remain silent while evidence he believes is prejudicial and has been excluded is presented to the jury." (People v. Maciel (2013) 57 Cal.4th 482, 528 (Maciel).) To preserve the issue for appeal, an objection must be raised. "A pretrial motion in limine is merely an additional protective device for the opponent of the evidence." (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 608.) However, " ' " '[a]n attorney who submits to the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waive the error in the ruling by proceeding in accordance therewith and endeavoring to make the best of a bad situation for which he was not responsible.' " ' " (Park City Services, Inc. v. Ford Motor Co., Inc. (2006) 144 Cal.App.4th 295, 311 (Park City Services).)
On January 19, 2016, Marroquin filed an in limine motion entitled: "The gang expert's testimony should be limited to exclude any incompetent hearsay and any testimonial hearsay." The motion was based in part on Crawford v. Washington (2004) 541 U.S. 36 (Crawford), specifically that such testimony would violate the confrontation clause. That Marroquin moved to exclude "any testimonial hearsay" makes the motion all-encompassing; that is, he moved to exclude testimonial hearsay regarding any persons and events.
The court granted the motion in part as follows: "[Motion in limine] Number 3, on Page 12, will be granted to the extent that it relates to testimonial hearsay if particular statements are being elicited for a case-specific evidence as it relates to the defendant as we have discussed briefly under Sanchez. It does not mean that an expert is precluded from relying on hearsay, it means case-specific hearsay needs to be admitted by other witnesses." It is clear the trial court granted the motion in limine regarding testimonial hearsay relating to the defendant only, and impliedly denied the motion to the extent it moved to exclude testimonial hearsay relating to other persons. Therefore, Marroquin's Sanchez and Crawford claims concerning testimonial hearsay relating to persons other than Marroquin were preserved. (Park City Services, supra, 144 Cal.App.4th at p. 311.) However, his claims concerning testimonial hearsay relating to himself were forfeited since he did not make contemporaneous objections during trial. (Maciel, supra, 57 Cal.4th at p. 528.)
3. Ineffective Assistance of Counsel
Anticipating at least some of his Sanchez and Crawford claims may have been forfeited for failing to object, Marroquin argues defense counsel was ineffective for failing to preserve the issues. To establish ineffective assistance of counsel based on counsel's failure to object, Marroquin must show (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To establish prejudice, Marroquin must make a showing "sufficient to undermine confidence in the outcome" that but for counsel's deficient performance there was a "reasonable probability" that "the result of the proceeding would have been different." (Strickland, at p. 694; Ledesma, at pp. 217-218.) On review, we can adjudicate an ineffective assistance claim solely on the issue of prejudice without determining the reasonableness of counsel's performance. (Strickland, at p. 697; People v. Hester (2000) 22 Cal.4th 290, 296-297.) We will do so here because, as we will explain, the strength of any improperly admitted evidence was relatively meager in comparison to the strength of other admissible evidence, and there is thus no reasonable probability the jury's verdicts and findings would have been different had counsel objected.
4. Analysis
We will address each category of evidence Marroquin claims violated Sanchez.
i. Predicate Offenses
The two predicate offenses were (1) the possession for sale of a controlled substance by Francisco Osuna and (2) (1) the assault with a deadly weapon by Rutilio Garcia. Certified convictions for Osuna showed he admitted a section 186.22, subdivision (b) enhancement. Osuna's certified conviction did not state which gang Osuna committed the crime for the benefit of, but Sergeant Delacruz testified that Osuna was a Northern gang member with the Earlimart, Tulare County subset based on Osuna's admission of that fact to investigating officers. Similarly, Garcia's certified conviction showed a section 186.22, subdivision (b) enhancement did not state which gang he committed the crime for, but Sergeant Delacruz testified that Daniel Mendoza, who was charged for the crime with Garcia, was a Northern gang member with the Earlimart, Tulare County subset.
Sergeant Delacruz did not offer any specific testimony regarding Garcia's gang affiliation.
Marroquin contends Sergeant Delacruz's testimony relating to Garcia, Mendoza, and Osuna's gang affiliation involved case-specific facts that were related to the jury in violation of Sanchez. As we have discussed, this issue was properly preserved. However, since neither Osuna nor the events surrounding his conviction for possession with intent to sell were involved in Marroquin's instant case, the facts surrounding Osuna's gang affiliation and his conviction were not "case-specific" for purposes of Sanchez, and thus no Sanchez error occurred. Also as we have explained, there was no confrontation clause issue with respect to the evidence of the predicate offenses because such evidence is only general background information about the Northern gang. (Blessett, supra, 22 Cal.App.5th at p. 948.)
ii. Delacruz's testimony regarding Marroquin's past criminal activity and gang affiliation
The following law enforcement officers with firsthand knowledge testified regarding specific facts relating either to Marroquin's past criminal conduct and gang affiliation or to the current offense: Deputy Rose, Officer Cervantes, Detective Howser, Sergeant Zamora, and Sergeant Shaw. Marroquin raises no issue with the admissibility of any of these officers' testimony.
However, Marroquin contends portions of Sergeant Delacruz's testimony regarding Marroquin's past criminal activity and gang affiliation related case-specific facts to the jury in violation of Sanchez. Marroquin is correct, but these claims were forfeited by his failure to contemporaneously object as previously discussed. We nevertheless analyze his claim on the merits and will demonstrate how he was not prejudiced by defense counsel's failure to object to these Sanchez errors.
Sergeant Delacruz testified that Marroquin had been identified as a gang member on at least seven different occasions according to field identification cards. Sergeant Delacruz had no personal knowledge of any of these occasions as he had never had any contact with Marroquin.
Sergeant Delacruz also specified four gang crimes in which Marroquin was involved. Two of those crimes were previously testified to by other officers—the incident where Marroquin was stopped leaving a house under surveillance and a subsequent probation search of his home uncovered incriminating evidence, and the incident where a handgun was found on Marroquin while he was fleeing with other subjects. The other two offenses—the 2008 "non-prosecution" battery and the shooting of a former gang member—were not testified to by anyone with firsthand knowledge. Regarding the incident involving the shooting of a former gang member, Sergeant Delacruz said it was learned Marroquin's alias was "Piper."
Sergeant Delacruz's testimony regarding the seven previous incidents in which Marroquin was identified as a gang member and the two gang offenses of which Sergeant Delacruz had no personal knowledge related case-specific testimony in violation of Sanchez. However, Marroquin did not suffer prejudice from these Sanchez errors. As we explain post, we are reversing Marroquin's conviction of the substantive gang offense (§ 186.22, subd. (a)) on the ground that there was insufficient evidence Marroquin acted in concert with anyone else (in particular, a gang member), and that ground is independent of these Sanchez errors.
However, regarding the gang enhancements under section 186.22, subdivision (b), the record contained sufficient evidence, aside from the evidence that violated Sanchez, from which the jury could find Marroquin was a gang member and committed the instant offenses for the benefit of a criminal street gang. This evidence includes the firsthand testimony of Deputy Rose, Marroquin's arresting officer in this case, who testified with firsthand knowledge that Marroquin admitted he recognized one of the victims as someone who had gang ties, that gang signs were exchanged, that the shooting was gang-related, and that he shot the victims because they were rival gang members. Sergeant Shaw, who was the officer who detained Marroquin leaving a residence that was under surveillance and retrieved a handgun from his waistband, also testified with firsthand knowledge that Marroquin told him he affiliated with Northerners. Accordingly, we conclude that to the extent any portion of Sergeant Delacruz's testimony can be construed as conveying to the jury testimonial hearsay, any error was harmless beyond a reasonable doubt (Chapman, supra, 386 U.S. at p. 24), and, even if some of Sergeant Delacruz's testimony can be construed as case specific premised on inadmissible hearsay, there is no reasonable probability that defendant would have obtained a more favorable result in the absence of the error (Watson, supra, 46 Cal.2d at p. 836).
iii. Sergeant Delacruz's testimony relating to Medrano's gang affiliation
Marroquin also contends Sergeant Delacruz's testimony regarding Medrano's identity as a Northern gang member related case-specific hearsay in violation of Sanchez. He is correct. Medrano was a person who was involved in the instant case, and therefore case-specific facts relating to him fall squarely within our Supreme Court's definition of "case-specific" facts in Sanchez. Indeed, the totality of Sergeant Delacruz's testimony regarding Medrano's identity was in violation of Sanchez. As previously discussed, Marroquin's claim of Sanchez error relating to Medrano was properly preserved. Nevertheless, these errors did not prejudice Marroquin.
Although Sergeant Delacruz had never had any prior contacts with Medrano, Sergeant Delacruz had spoken with other officers who had had contact with him and had read those officers' reports. Sergeant Delacruz stated that Medrano had been identified as a gang member by a reliable source (i.e. other officers), had been involved in gang crimes, had admitted to being a gang member, and his own mother admitted that he associates with Northern gang members. Based on this, Sergeant Delacruz opined that Medrano is a Northern gang member. The case-specific facts Sergeant Delacruz related to the jury as a basis for his opinion were in violation of Sanchez.
Nevertheless, Marroquin was not prejudiced by these errors for the same reasons he was not prejudiced by the errors relating to his prior police contacts and gang affiliation as discussed above.
E. Sergeant Delacruz's Opinion Testimony
In his response to the prosecutor's hypothetical adapted from the facts of the case, Sergeant Delacruz explained the hypothetical crime would have been committed for the gang's benefit because a gang member needs to "put in work" for the gang and because the commission of the crime would demonstrate the shooter's loyalty to the gang. The prosecutor then continued:
"[The Prosecutor]: And then just to clarify one point. On or about August 7, 2014, do you have an opinion as to if Mr. Marroquin was an active participant in the northern gang?
"[Sergeant Delacruz]: Yes, sir.
"[The Prosecutor]: And what is your opinion?
"[Sergeant Delacruz]: My opinion is that Mr. Marroquin was, you know, participating on behalf of the gang. Because what was said, and of course he has to participate in it to show that they can't disrespect the northern gang. So he has to go ahead and do something about it. He has to prove that he's loyal to the northern cause."
Defense counsel objected to this as improper expert testimony regarding Marroquin's specific intent, and the court overruled the objection. On appeal, Marroquin maintains Sergeant Delacruz's opinion that Marroquin was participating on behalf of a gang when he committed the shooting was improper. We agree the opinion was improper as it was tantamount to an opinion regarding Marroquin's specific intent, but we nevertheless conclude it was harmless.
An expert may offer opinion testimony based upon facts given in a hypothetical question asking the expert to assume their truth. (People v. Vang (2011) 52 Cal.4th 1038, 1045 (Vang).) Such a hypothetical question must be rooted in the evidence presented in the case being tried. (Id. at p. 1046.) Gang experts are allowed to opine whether a crime involving a hypothetical set of given facts would have been committed for the benefit of a criminal street gang. (People v. Gardeley (1996) 14 Cal.4th 605, 618-620, disapproved of on other grounds by Sanchez, supra, 63 Cal.4th 665; see Vang, supra, 52 Cal.4th at p. 1052 [it is "settled" that an expert may express "an opinion regarding whether a crime was gang related"].) However, an expert witness is not allowed to express an opinion that a specific defendant acted for a gang purpose or to express an opinion on a specific defendant's guilt. (Vang, at pp. 1047-1048.) When a witness gives "inadmissible opinion testimony on the central question of [a defendant's] guilt," the error is "one of erroneous admission of evidence" and is reviewed under the standard of review for claims of state law error. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76.) The standard of review for claims of state law error is articulated in Watson, supra, 46 Cal.2d 818, and the question is whether it is otherwise reasonably probable defendant would have received a more favorable verdict in absence of the error. (Id. at p. 836).
Here, we agree with Marroquin that Sergeant Delacruz improperly opined as to Marroquin's guilt. His answer to the hypothetical that was asked just prior was permissible, but his answer to the pointed question that went to Marroquin's specific intent was not. However, under Watson review, it is not reasonably probable that the jury's findings on the gang enhancements would have been different but for the error because, as we have already explained, Marroquin admitted to officers he was affiliated with the Northern gang and committed the instant crimes for gang-related reasons. Also, Sergeant Delacruz's pointed answer regarding Marroquin's specific intent was, in large part, substantively repetitive to the answer he had just given to the properly constructed hypothetical.
F. Sufficiency of the Evidence
1. Substantive Gang Offense
The substantive gang offense provision of the STEP Act provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." (§ 186.22, subd. (a), italics added.) "One may promote, further, or assist in the felonious conduct by at least two gang members by either (1) directly perpetrating the felony with gang members or (2) aiding and abetting gang members in the commission of the felony." (People v. Johnson (2014) 229 Cal.App.4th 910, 920-921 (Johnson).) "Not every crime committed by gang members is related to a gang." (Albillar, supra, 51 Cal.4th at p. 60.) Rather, the substantive gang offense targets "gang members who act[ ] in concert with other gang members in committing a felony regardless of whether such felony [is] gang related." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138.) The offense requires the commission of felonious criminal conduct by at least two members of the criminal street gang. (Id. at p. 1132; accord, Johnson, supra, at pp. 920-921.)
Here, the evidence, even viewed in the light most favorable to the judgment, is insufficient to prove Marroquin acted in concert with anyone—Medrano, in particular—in committing the instant offenses. The evidence is clear that Medrano apprised Marroquin of the encounter that had just taken place between the occupants of Marroquin's van and the shooting victims. However, there was absolutely no evidence that Medrano requested, advised, ordered, or encouraged Marroquin to shoot at the victims. No witnesses testified that Medrano was armed with a weapon, much less brandished a weapon, nor was there any evidence that Medrano made any threats to the victims. There is also no evidence Medrano handed Marroquin the gun. Had there been any evidence Medrano had brandished a weapon or otherwise threatened the victims, perhaps a reasonable inference could be drawn that Medrano requested or encouraged Marroquin to shoot at the victims. However, even were we to assume there was sufficient evidence Medrano was a gang member, there is no evidence he played any role in Marroquin's crimes that day. It would be speculation to conclude Marroquin acted in concert with Medrano. Accordingly, Marroquin's conviction of the substantive offense must be reversed.
2. Gang Enhancements
The STEP Act's gang enhancement provision applies when a person is convicted of a felony 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," and establishes a sentence enhancement of two, three, or four years' imprisonment for most felonies. (§ 186.22, subd. (b)(1).)
Marroquin contends there was insufficient evidence of the existence of a criminal street gang. Specifically, he contends there was insufficient evidence to prove the Northern gang's primary activities as well as a pattern of criminal activity by the gang's members. He further appears to contend there was insufficient evidence he acted with the specific intent to promote, further, or assist in any criminal conduct by gang members. We disagree.
i. Primary Activities
A gang's primary activities can be proven solely by expert testimony. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) Here, Sergeant Delacruz, a gang expert who had spoken with hundreds of Northern gang members and had investigated crimes committed by the Northern gang, testified the Northern gang's primary activities include murder, assault, and selling drugs. This testimony was of solid and credible value and the jury reasonable could have relied on it in determining the Northern gang's primary activities.
ii. Predicate Offenses
As discussed, there was no Sanchez error with respect to the predicate offenses. Furthermore, the predicate offenses were supported by sufficient evidence. A certified conviction showed Francisco Osuna was convicted of possession of methamphetamine with intent to sell and had admitted a section 186.22, subdivision (b) violation, which proved he admitted to being in a gang. Sergeant Delacruz testified Osuna was a Northern gang member because Osuna had admitted to the arresting officer that he was a gang member with the Earlimart, Tulare County subset and was selling the drugs in his possession for the benefit of his gang.
A certified conviction also showed Rutilio Garcia and Daniel Mendoza were charged with assault with a deadly weapon with a section 186.22, subdivision (b) allegation. The certified conviction showed Garcia was convicted of the crime and admitted the gang enhancement, but the record is silent as to the disposition of the case with respect to Mendoza. Sergeant Delacruz testified Mendoza was a Northern gang member and "thought" he was with the Earlimart, Tulare County subset. However, Sergeant Delacruz also testified that, during the assault, the gang words "ETZ, Earlimart Tulare County, 14" were yelled, and this evidence was sufficient to prove that Garcia was a Northern gang member.
iii. Marroquin's Specific Intent
The evidence was sufficient to show Marroquin was not only a gang member, but that he committed the shooting with the specific intent to benefit the Northern gang. Regarding his gang membership, he admitted to Deputy Rose he recognized one of the victims as someone who had gang ties, that gang signs were exchanged, that the shooting was gang-related, and that he shot the victims because they were rival gang members. Two weeks after the shooting, when he was pulled over in Fresno by Officer Cervantes and arrested for being in possession of a loaded gun, he said he had the gun on him because he has problems with gang members. Though he maintained he was not a gang member, he said his family members are "Norteno" gang members. Additionally, Sergeant Shaw testified that after he arrested Marroquin in February 2011 when he was caught fleeing from law enforcement and was found in possession of a gun, Marroquin admitted during booking that he affiliates with Northerners. Finally, Marroquin had the word "Pixlon" tattooed on his back, and Sergeant Delacruz testified Pixlon was a Northerner gang subset.
In conclusion, there was sufficient evidence of solid and credible value to prove the existence of a criminal street gang and to prove Marroquin committed the shooting for the benefit of the Northerner criminal street gang. Thus, the jury's true findings on the section 186.22, subdivision (b) enhancements are affirmed and Marroquin's claim of ineffective assistance of counsel for failure to object to the introduction of certain evidence is rejected.
G. Cumulative Error
Marroquin contends even if none of the trial court's foregoing errors are prejudicial standing alone, the cumulative effect of the errors deprived him of his right to due process and a fair trial. "Under the 'cumulative error' doctrine, we reverse the judgment if there is a 'reasonable possibility' that the jury would have reached a result more favorable to defendant absent a combination of errors." (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.' " (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) As we are already reversing Marroquin's conviction for the substantive gang offense, we analyze this claim of cumulative error only with respect to the jury's gang enhancement findings.
We have determined Sergeant Delacruz's testimony regarding Marroquin and Medrano's past criminal activity and gang affiliation was violative of Sanchez, and we will ignore for the purpose of analysis that Marroquin forfeited his claim of error with respect to his own past criminal activity and gang affiliation. We also have determined Sergeant Delacruz improperly opined regarding Marroquin's specific intent at the time of the shooting. Even when these errors are considered together, they are offset by Marroquin's admissions to law enforcement he is affiliated with the Northern street gang and the shooting was gang-related. We will not reverse a judgment for cumulative error "absent a clear showing of a miscarriage of justice." (People v. Hill (1998) 17 Cal.4th 800, 844.) No such showing has been made here.
II. Firearm Enhancements
Marroquin contends, and the People concede, the section 12022.5, subdivision (a)(1) enhancements on counts 2, 4, 6, and 8, and the section 12022.53, subdivision (c) enhancements on counts 1, 3, 5, and 7 must be vacated and remanded for the court to exercise its discretion under newly amended section 12022.5, subdivision (c) and section 12022.53, subdivision (h) to strike those enhancements. We agree.
At the time of Marroquin's sentencing, sections 12022.5, subdivision (c) and 12022.53, subdivision (h) stated, "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Former §§ 12022.5, subd. (c); 12022.53, subd. (h).) However, on October 11, 2017, after Marroquin's sentencing, Senate Bill No. 620 was signed by the Governor, amending those two sections as of January 1, 2018, to read as follows: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, §§ 1, 2.) Furthermore, multiple appellate decisions have concluded that Senate Bill No. 620 applies retroactively to non-final judgments. (See, e.g., People v. Chavez (2018) 22 Cal.App.5th 663, 712; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
We remand the matter for an exercise of discretion, but we take no position on how the trial court should exercise its discretion. III. Franklin Hearing
Marroquin also requests we remand his case to allow him to present evidence for use at future youth offender parole hearings. The People do not object to a remand for this purpose, and we believe remand is proper.
On October 11, 2017, the Legislature amended section 3051 to raise the age of those eligible for youth offender parole hearings from those who were under 23 years old to those who were 25 years of age or younger when they committed their controlling crimes, and this amendment took effect on January 1, 2018. (Stats. 2017, ch. 675, § 1.) The law provides certain dates by which a youth offender must be considered for release at a youth offender parole hearing. (See § 3051, subd. (b)(1)-(4).) At the hearing, the Board of Parole Hearings must "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).)
In Franklin, supra, 63 Cal.4th 261, the California Supreme Court, in evaluating former section 3051 as it applied to juvenile offenders under the age of 23, held that juvenile offenders must be given the opportunity to compile information regarding their characteristics and circumstances at the time of the offense to be considered at future youth offender parole hearings, including statements by family members, friends, school personnel, faith leaders, and representatives from the community. (Id. at p. 283.) Noting that such statements are more easily compiled at or near the time of the juvenile's offense rather than decades later when memories have faded or records have been lost, the high court remanded the matter to allow the defendant "sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Id. at p. 284.) Given its origin, this type of hearing is often referred to as a Franklin hearing.
Given that Marroquin was sentenced before the latest amendment to section 3051 was signed into law, the parties agree, as do we, that this matter must be remanded pursuant to Franklin to afford him the opportunity to develop a record relevant to his future youth offender parole hearing.
DISPOSITION
The section 186.22, subdivision (a) conviction is reversed. In all other respects, the judgment is affirmed. The matter is remanded for resentencing at which time the trial court is to exercise its discretion to consider striking the section 12022.5 and section 12022.53 enhancements, and also afford Marroquin an opportunity to present evidence pursuant to Franklin.
/s/_________
SNAUFFER, J. I CONCUR: /s/_________
SMITH, J. Franson, Acting P.J., concurring and dissenting,
I concur with the majority that there was insufficient evidence to support Marroquin's conviction for the substantive gang offense, and his conviction on that count must be reversed. I also agree that he is entitled to a remand for an exercise of discretion to consider striking the firearm enhancements as well as for a Franklin hearing. However, I dissent from the majority's conclusion on the gang enhancements and would reverse those true findings.
People v. Franklin (2016) 63 Cal.4th 261.
Predicate offenses involve two elements: (1) commission of two or more enumerated crimes and (2) by gang members. (Pen. Code, § 186.22, subd. (f).) Certified crime records proved that Rutilio Garcia and Francisco Osuna committed the predicate crimes.
Sargent Delacruz opined that the individuals who committed the predicate offenses—Garcia and Osuna—were members of the Northern street gang at the time of their crimes. In explaining the basis for his opinion, Delacruz stated that he relied on his review of police records and his conversations with other officers. The majority concludes that Sergeant Delacruz's hearsay testimony was sufficient to prove that predicate offenders Garcia and Osuna were Northern gang members.
Based on the legal principles set forth in People v. Sanchez (2016) 63 Cal.4th 665, (Sanchez) I would conclude the trial court erred in admitting Delacruz's hearsay testimony identifying each of the predicate offenders as validated Northern gang members, and that the error was not harmless under the circumstances of this case.
There is a split of authority regarding whether a gang expert's testimony about predicate offenses entails "case-specific facts" as contemplated by Sanchez. One view holds that evidence of a pattern of criminal activity by alleged gang members should be classified as "general background information" and thus treated as subject matter about which a qualified expert may relate hearsay. (People v. Blessett (2018) 22 Cal.App.5th 903, 943-945, review granted Aug. 8, 2018, S249250; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411; People v. Meraz (2016) 6 Cal.App.5th 1162, 1174-1175 [predicate acts are background information rather than case-specific facts].) The opposing perspective is that facts related to predicate offenses are necessarily case specific. (People v. Lara (2017) 9 Cal.App.5th 296, 337; People v. Ochoa (2017) 7 Cal.App.5th 575, 583, 588-589.) I endorse the latter view.
Sanchez has been interpreted as a new "litmus test" for allowing hearsay as a basis for expert opinion—" 'it depends on whether the matter the prosecution seeks to elicit is "case-specific hearsay" or, instead, part of the "general background information" acquired by the expert through out-of-court statements as part of the development of his or her expertise.' " (People v. Ochoa, supra, 7 Cal.App.5th at p. 588, quoting People v. Stamps (2016) 3 Cal.App.5th 988, 995.) A distinction must be made between an expert providing background information regarding his knowledge and expertise, and premises generally accepted in his field, to opine on the existence, culture and habits of a gang, versus something more specific to a case. The basis for an expert witness opinion establishing that a predicate offender is a gang member requires the expert to (1) utilize his or her general background information, such as special knowledge, skill, experience, training and education and then (2) apply that expertise to case-specific facts to opine whether a predicate offender is a gang member.
As noted, case-specific facts are defined as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) By definition, the predicate offenders are participants in the street gang at issue in the present case, although not defendants. "Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge." (Ibid.)
The Sanchez decision expressly "restores the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Sanchez, supra, 63 Cal.4th at p. 685.) To illustrate this distinction, the high court provided the following example: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Id. at p. 677.)
In my view, whether the second element of the predicate offenses was satisfied is a case-specific fact, i.e., were they committed by a member of the Northern gang? This is analogous to the presence of a diamond tattoo on an associate's arm in the above example, not to an expert's opinion of what the tattoo may signify. Since the existence of a criminal street gang is an element of section 186.22 that requires proof of a pattern of criminal gang activity, and the occurrence of specific predicate offenses is a factual matter upon which the prosecution's theory of the case depends, testimony concerning the predicate offenses may be construed as "relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) This admittedly broad construction of the term "case-specific facts" seems reasonable and correct in light of the only alternative, which would be to characterize details about specific crimes committed by specific individuals as "general background information," i.e., "testimony regarding [the expert's] general knowledge in his field of expertise." (Id. at pp. 676, 678.)
In this case, Detective Delacruz was relying on the fact the predicate offenses were committed by Northern gang members derived entirely from hearsay sources—police reports, field interviews and conversations with other police officers. He admitted he did not work on either the Garcia or Osuna cases. "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686.)
Certified conviction records were used to establish the first element of the predicate offenses requirement for the gang enhancement allegations. However, without Delacruz's hearsay testimony, the jury had no basis upon which satisfy the second predicate offense element and to conclude at least two of those crimes were committed by members of the Northern gang, leaving an evidentiary gap in the People's theory of liability. (E.g., People v. Vasquez (2016) 247 Cal.App.4th 909, 922 [" 'The existence of a criminal street gang street gang is unquestionably an element of ... the enhancement' "].)
Without Delacruz's inadmissible hearsay testimony that members of the Northern street gang committed two or more predicate offenses, the prosecution could not establish the second element of the gang enhancement allegations. Under these circumstances, I cannot conclude beyond a reasonable doubt that the jury would have found the gang enhancement allegations to be true had Sargent Delacruz's testimony about the predicate offenses been properly excluded. The jury's true findings on the gang enhancements alleged against Marroquin should accordingly be reversed.
/s/_________
FRANSON, Acting P.J.