Opinion
NOT TO BE PUBLISHED.
Monterey County Super. Ct. No. SS042085A & B.
Premo, J.
Defendants Jose Monsivais and Marcos Amparo, members of the Sureño gang, were found guilty at jury trial of the attempted murders of California Highway Patrol (CHP) Officers Jeremy Bowen and Quincy Gowenlock and numerous other offenses arising out of a high speed chase as well as two vehicle thefts, two robberies, one carjacking, and firearms-related offenses occurring during a 10-day crime spree preceding the chase. They appeal, raising issues of the admissibility and sufficiency of the evidence, competence of counsel, and sentencing error.
Monsivais’s name is frequently misspelled in parts of the superior court record and in Amparo’s brief. We will use the spelling Monsivais’s appellate counsel uses in this court.
FACTS
Defendants’ July 2004 crimes, which came to the authorities’ attention, began on July 17 with the theft of a parked white 1991 Honda Accord belonging to Angel Rocha and ended on July 27, when they crashed Rocha’s car while attempting to evade Officers Bowen and Gowenlock by fleeing at over 100 miles per hour and shooting at them during the pursuit. Between July 17 and 27, on July 20, they stole a parked 1991 Plymouth van belonging to Maria Meneses and carjacked a blue 1993 Ford Escort from Jose Trinidad Chavez after they put a gun to his head, took his wallet containing $400, and pushed him and threatened to kill him. On July 21, they robbed two clerks working at a Salinas 7-Eleven at gunpoint, and on July 23, Amparo robbed a clerk at the Salinas Valley Truck Stop also at gunpoint.
Defendants were charged, convicted, and sentenced as follows:
Count, Charge (Penal Code unless otherwisestated), Victim
Monsivais: All counts guilty; total sentence 30years to life plus 54 years
Monsivais: All enhancements true; additionalsentence
Amparo: All counts guilty; total sentence 60years to life plus 15 years
Amparo: All enhancements true, additionalsentence
1. Attempted premeditated murder of Jeremy Bowen(§§ 664, 187, subd. (a))
15 years to life--stayed
Street gang (§ 186.22, subd. (b)(1)),discharge of firearm (§ 12022.53, subd.(c))--both stayed
15 years to life--stayed
Street gang, discharge of firearm--both stayed
2. Attempted premeditated murder of QuincyGowenlock
15 years to life--stayed
Street gang-- firearm--both stayed
15 years to life--stayed
Street gang, firearm--both stayed
3. Attempted murder of public official Bowen(§ 217.1, subd. (b))
15 years to life--consecutive to determinateterms
Street gang-- firearm--20 years consecutive
15 years to life--consecutive to determinateterms
Street gang, firearm--20 years consecutive
4. Attempted murder of public official Gowenlock
15 years to life--concurrent
Street gang, firearm--20 years concurrent
5 years to life--concurrent
Street gang, firearm--20 years consecutive
5. Assault with firearm on peace officer Bowen(§ 245, subd. (d)(1))
6 years--stayed
Street gang, firearm--both stayed
6 years--stayed
Street gang, firearm--both stayed
6. Assault with firearm on peace officerGowenlock
6 years--stayed
Street gang, firearm--both stayed
6 years--stayed
Street gang, firearm--both stayed
7. Shooting at occupied vehicle (§ 246)
5 years--stayed
Street gang, firearm--both stayed
15 years to life--stayed
Street gang, firearm--both stayed
8. Street terrorism (§ 186.22, subd. (a))
Dismissed before trial
Dismissed before trial
9. Vehicle taking Honda Accord Angel Rocha
8 months--consecutive
Street gang-- 1 year consecutive
8 year--consecutive
Street gang--1 year consecutive
10. Attempting to evade peace officer whiledriving recklessly (Veh. Code, § 2800.2)
N/A
N/A
5 year--consecutive
Street gang--3 years concurrent
11. Felon possessing ammunition (§ 12316,subd. (b)(1))
N/A
N/A
2 year--consecutive
Street gang--3 years concurrent
12. Carrying loaded firearm (§ 12031, subd.(a)(1))
2 years--concurrent
Street gang (§§ 186.22, subd. (b)(1);12031, subd. (a)(2)(C))--concurrent
2 year--consecutive
Street gang--3 years concurrent, stayed
13. Felon possessing firearm (§ 12021, subd.(a)(1))
N/A
N/A
2 year--consecutive
Street gang--stayed
14. Robbery 2nd degree (§ 211) Sylvia,Valley Truck Stop
N/A
N/A
3 year--consecutive
Street gang--10 years consecutive, firearm--10years consecutive
15. Robbery 2nd degree Marcos Alvarez 7-Eleven
3 years--consecutive
Street gang, firearm for benefit of street gang(§ 12022.53, subds. (b) and (e)(1))--10years each consecutive (total 20 years)
1 year--consecutive
Street gang, firearm--each 3 years, 4 monthsconsecutive (total 6 years, 8 months)
16. Robbery 2d degree Damasio Bochas 7-Eleven
1 year--consecutive
Street gang, firearm for benefit of streetgang--each 3 years four months consecutive
1 year--consecutive
Street gang and firearm--each 3 years, 4 monthsconsecutive
17. Vehicle taking Plymouth van Maria Meneses
1 year--consecutive
Street gang--8 months consecutive
N/A
N/A
18. Carjacking (§ 215) Jose Trinidad
15 years to life--consecutive
Street gang--no enhancement
N/A
N/A
19. Robbery 2nd degree Jose Trinidad (wallet)
3 years--stayed
Street gang--stayed
N/A
N/A
20. Vehicle taking Ford Escort Jose Trinidad
2 years--stayed
Street gang--stayed
N/A
N/A
After the arrest, officers found a loaded revolver, five spent casings, gloves, a blue bandanna, and a glass methamphetamine pipe in the Honda. The ignition had been “punched” so it could be started without a key. A gunshot residue test confirmed that shots had been fired from the sunroof area.
Detective Sheldon Bryan of the Salinas Police Department interviewed CHP Officers Bowen and Gowenlock as well as defendants after the chase. Gowenlock and Bowen observed a Honda traveling about 90 miles per hour on northbound Highway 101 at Salinas while they were en route to a noninjury accident call. They were traveling at 90 miles per hour and were not gaining on the Honda. Gowenlock accelerated to about three-to-four car lengths of the Honda, noted it was going 93 miles per hour in a 65-mile-per-hour posted area, and decided to pull it over to issue a speeding citation.
When Gowenlock activated the lights, the driving of the Honda became erratic, weaving within the lane. It did not pull over. When he activated the siren, the vehicle moved across the slow lane and onto the Boronda Road off-ramp. Although the Honda slowed for a red light at the bottom of the ramp, fire and sparks were shooting out from the front tires and the vehicle went through the red light and turned right onto Boronda Road.
The Honda went through another red light at about 70 miles per hour and onto San Juan Grade Road where it accelerated to about 100 miles per hour. The front passenger, Monsivais, stood up through the sunroof, turned toward the pursuing officers, and Gowenlock saw four or five orange muzzle flashes aimed in their direction. Gowenlock backed the patrol car off from 40 to about 100 feet behind the Honda and saw the passenger resume his seat. After passing two more intersections, the passenger stood up and fired off another four to five shots and then sat down again. Gowenlock did not see or hear any of the shots striking the CHP vehicle. The officers did not fire at the Honda. The Honda was going over 100 miles per hour, crossing over the double yellow lines, and going the wrong way a couple of times. It was around 3:00 a.m. and there was no other traffic. When the driver, Amparo, came to the T-intersection at Williams Road, he tried to make a turn, but was going too fast and ran straight through the intersection and crashed into an embankment.
When Gowenlock saw the Honda’s wheels lock and start into a skid before crashing, he stopped the patrol car just before the intersection. He saw both of the Honda’s front doors open and both occupants get out and start to run toward the City of Salinas. Bowen yelled at defendants to get down on the ground and they did. Defendants were detained until the Salinas police arrived to arrest them. The CHP vehicle was turned over to the Salinas Police Department for forensic examination.
Amparo was transported to the Salinas Police Department by Officer Michael Rodden who found a .357-caliber bullet in Amparo’s pocket. Detective Bryan interviewed Amparo. Amparo said that he “borrowed” the car involved in the chase and that he was the driver. He knew that the CHP officers were trying to stop him, but he continued to travel at about 130 miles per hour. He had no intention of stopping and said he was “running from the police.” He knew there was a gun in the car and he had handled it earlier that day. When he crashed the car, he and Monsivais fled from the police on foot. He said he associated with Sureño gang members and that he had joined the gang at age 11.
Monsivais told Bryan in a videotaped interview that he had shot at the CHP officers from a stolen car during the chase. He stood up through the “moon roof, ” “blasted at” the officers, and tried to shoot them. The first time he sat back down in the car, it was to reload the gun. He said he did not like cops and that if he had hit one of the officers, he would gain respect from his fellow gang members. Monsivais admitted stealing the blue Ford Escort which Bryan later learned was carjacked from Jose Trinidad. When the car was recovered, someone had burned the Sureño gang numbers “X3” and “13” in the headliner.
When Monsivais testified at trial, he stated he was high on methamphetamine during the chase, and continued smoking it from a glass pipe until just before the crash. When he saw the CHP officers trying to pull Amparo and him over, he was scared because Amparo was on parole. He fired at the officers in an attempt to scare them into breaking off their pursuit. He was aiming “on top of the lights” of the patrol unit. He thought all of the bullets had missed the patrol car. He realized he could have hit the officers, but his intent was to shoot over the lights of the car, not at the windshield or directly at the officers. When he sat down after firing the first round of shots, it was to reload. The second time he sat down, he resumed smoking methamphetamine. When he was interviewed by Bryan, he was “under the influence, ” “accelerated, ” and “panicked.” When he told Bryan he was trying to shoot at the police, he did not mean he was trying to hit the car, he was only trying to scare the officers.
Monsivais’s fingerprint was found on the driver’s side door of the blue Plymouth van when it was found abandoned in Salinas two days after the July 20 theft and it contained a compact disc with “Sureño type songs” and “13” written on it. Monsivais told officers he bought the van from an acquaintance and said that it was later stolen from him but he made no police report.
Monsivais told Bryan that he went to the 7-Eleven in a stolen car whose key he found on the street, and which he abandoned after it broke down. He saw it parked somewhere else later and thought it must have been returned to its owner. Monsivais said the car was a small blue Ford with a unique sticker on one of the windows. Monsivais said when he entered the 7-Eleven, he put the gun on the counter, “ordered” money from the clerk, got $200, and left.
Bryan visited the 7-Eleven store in Salinas where two clerks were robbed on July 21. Damasio Bochas, the only clerk who testified, stated he could not identify anyone as his back was turned to the counter during the robbery and he was afraid to turn around.
Bryan viewed the surveillance camera recording. He clearly saw Monsivais on the tape, but the robbery did not occur exactly as Monsivais had said. Two men were involved. A very large man with Monsivais was the person who was armed with the gun. This “individual put the gun down on the counter just like Monsivais said he did and then the exchange of money occurred and then both individuals ran out of the store.”
Bryan said he could clearly see Monsivais’s face on the video (Monsivais had not worn any kind of mask, hat, or disguise), and that Amparo was the second man. He could not identify Amparo by face, but he believed the man on the videotape was Amparo because he was “an extremely large man. Very tall. Heavy set. Had a baseball cap pulled down very low over his eyes concealing his face. Slumped shoulders.” Bryan was certain of the identification because of “the characteristics of the robbery that occurred at the Valley Truck Stop, the details about setting the gun down on the counter, the hat being pulled down low over his eyes to conceal his face, blue jacket. Everything was the same as far as the MO [modus operandi] regarding that robbery and the 7-Eleven--I just couldn’t see his face because of the baseball cap bill.”
The Valley Truck Stop robbery had come to Bryan’s attention after talking to Monsivais when he researched criminal patterns of past robberies within the Salinas Police Department data base. He learned that the suspect in the Valley Truck Stop robbery was a large-framed man with a baseball cap pulled down. He contacted the victim, Sylvia, who described the robber as a tall man, 6 foot 1 or 6 foot 2 about 230 pounds. He was wearing a baseball cap, a dark windbreaker-like jacket, and dark, possibly blue, pants. She could see his face because although he “was wearing [the cap] pretty low down . . . he was trying to cover up some of his face[, ] but him being so tall and me being so short, I could see straight up in his face. Still he did pull it down a little bit.” Sylvia gave the officers the videotape of the Valley Truck Stop robbery.
Sylvia’s surname was stricken from the record.
Bryan showed Sylvia a photo lineup. She identified Amparo and said, “[i]t had to have been him. I didn’t recognize no one [sic] else.” Sylvia also identified Amparo in court. She stated she recalled in particular “the way his face was . . . kind of to the side or something he kind of like moved his mouth and nose kind of to the side or I don’t know if that’s the way he normally is or if he makes those faces.” His nose was “[t]wisted or something.”
Bryan showed the 7-Eleven clerks the photo lineup but they were unable to identify anyone. Bryan stated the recording of the 7-Eleven robbery could not be retrieved off the hard drive “for some reason. There was a technical issue and we could not get that burned on a disk.”
At trial, Salinas Police Officer Royce Heath testified as an expert on California gangs. He described five predicate felony convictions committed by Sureño street gang members between 2002 and 2004 which established a “pattern of criminal gang activity.” (Pen. Code, § 186.22, subd. (e).) In 2002, Miguel Rivera was convicted of murder and a gang enhancement on April 17 and Jorge Quiroz was convicted of two robberies with gang enhancements on October 19. In 2004, Jose Perez was convicted of assault with a firearm with a gang enhancement; Javier Navarro was convicted of car theft and possession of a gun with a gang enhancement on July 27; and Jesùs Chuca was convicted of shooting at an occupied vehicle with a gang enhancement on October 18.
The term “predicate offenses, ” as used in connection with the Street Terrorism Enforcement and Prevention Act, describes crimes listed in Penal Code section 186.22 which establish a pattern of criminal gang activity for purposes of penal consequences under the Act. (People v. Gardeley (1996) 14 Cal.4th 605, 621-622 (Gardeley).)
Heath stated the Salinas police had several contacts with Monsivais from 2001 to 2004 which established his membership in the Sureño gang. In Heath’s opinion, the crimes at issue were committed in furtherance of or for the benefit of the Sureño street gang and enhanced the reputation of the gang as well as of the individual gang member.
Heath explained that the possession of a weapon helps gang members commit crimes such as robberies, by instilling fear and causing intimidation, and gives them the means to protect themselves from rival gang members, and to assault police officers. The theft of vehicles provides gang members with transportation without the expense of registering, insuring, and maintaining a vehicle, and gives them the ability to obtain funds, commit other crimes such as robberies, and evade police making identification difficult if the occupants get away. Robberies, as of the clerks at the 7-Eleven and Valley Truck Stop, provide funds to support individual gang members for living expenses and personal habits both inside and outside of jail, and provide an ability for gang members to “party” and have a good time without using their personal funds.
Defendants were convicted and sentenced as stated above. These appeals ensued.
ISSUES ON APPEAL
Monsivais raises two contentions: (1) that his four convictions for attempted murder and attempted murder of a public official must be reversed because he was deprived of his federal constitutional right to the effective assistance of counsel at closing argument and (2) that the abstract of judgment must be amended because of the numerous clerical errors therein.
Amparo asserts (1) the evidence was insufficient to support the verdicts on the attempted murder, shooting at an occupied vehicle, assault and weapons charges because no evidence that he aided and abetted was presented beyond his mere presence at the scene. (2) His counsel rendered ineffective assistance by failing to object to Detective Bryan’s identification of him as the second robber on the 7-Eleven surveillance tape. (3) He was denied his state and federal constitutional rights to confrontation and due process by the admission of a hearsay statement that he was a gang member attributed to his brother. (4) All references to gang allegations must be stricken because it was not shown that he had knowledge of the predicate acts the prosecution relied on to prove he committed the instant crimes to promote gang activity. (5) He was improperly sentenced and the abstract of judgment must be corrected. And (6), he joins in any claims advanced by Monsivais that may accrue to his benefit.
MONSIVAIS’S CONTENTIONS
1. Ineffective Assistance of Counsel
Monsivais asserts his trial attorney rendered ineffective assistance of counsel during closing argument as to counts 1 through 4 (attempted murder and attempted murder of a public official) because he failed to relate Monsivais’s intoxicated state due to the voluntary use of methamphetamine to the required mental state for the attempted murder charges and because he seemed to “distance himself from his client.”
Trial counsel’s closing argument took up only five pages in the reporter’s transcript. Monsivais complains that although counsel told the jury there was no premeditation, deliberation, or attempted murder, he “distance[d] himself from his client by telling the jury that [Monsivais’s conduct] was ‘despicable, ’ and that ‘we’re not condoning anybody’s conduct.’ ” The court instructed on the defense of voluntary intoxication with CALJIC Nos. 4.22, 4.21.1, and 4.21 which, in addition to defining voluntary intoxication, instructed the jury that it “should consider [intoxication] in deciding whether or not [Monsivais] had the required specific intent or mental state.”
CALJIC No. 4.21 states, “If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required specific intent or mental state.” CALJIC No. 4.21.1 states: “[Y]ou should consider the defendant’s voluntary intoxication in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime.” (Internal brackets in both instructions are omitted.)
Trial counsel’s remarks taken in context are not so dismissive of the defense Monsivais proffered at trial as Monsivais claims. The defense was that he was trying to shoot over the officers’ heads to scare them, not to kill them. Trial counsel stated, “look at the format, ” “[t]here’s videotape. There’s an interrogation room. You have a very skilled interrogator, the detective[, ] and someone who is a young man, not maybe the brightest in the world[, ] who’s high, and there’s a lot of questions asked and a lot of steering around, ‘Were you shooting at these people?’ ‘Yeah.’ ‘Were you shooting up in the air?’ Do you remember he pointed up. ‘No, no.’ He was shooting at them.
“So the question is was he shooting at them or was he shooting at them. At one point during the interrogation [Bryan] asked Monsivais, ‘What were you doing, ’ and he answers, ‘I was shooting to scare them, I was trying to scare them.’ Never once does Detective Bryan ask [him], ‘Were you trying to kill these two officers, was that your goal?’ He was shooting at them. And he testified here that he was shooting, pointing out like this which is higher over the car. Not up in the air.”
Trial counsel continued to insist that “[w]hat [Monsivais] was trying to tell you and wasn’t having the best luck at it was he really wasn’t trying to hit them or kill them. There clearly is no premeditation. There was no deliberation. There’s no attempted murder.” Counsel again emphasized that Monsivais was not trying to hit the police car. He said that when Monsivais “goes back in and shoots out there at the vehicle again, ” it was “[d]espicable conduct, I’m sure they were scared, an assault, that’s for you to decide probably. An assault because it doesn’t have to do anything other than put them in fear, ” and “I submit to you that the evidence here is very, very clear that Mr. Monsivais did not shoot at that vehicle. There was no intent to kill anyone and no intent to hurt anyone.” Monsivais’s trial counsel agreed with Amparo’s counsel that “the way this was set up and the testimony of the evidence provided to you, that’s all it was was two guys trying to get away from the police.”
The only comment the prosecutor made about Monsivais’s asserted drug use was, “There is no evidence of any drugs. There was an officer who said he found a pipe. And certainly Mr. Monsivais also talked about a pipe, and you know, a smoking device[, ] but there was no evidence at all that there was any drugs found on either of the defendants or in the car. . . . There certainly was a discussion at one point with Detective Bryan as far as Mr. Monsivais and he said he even asked him, made sure, ‘You know where you are; right, you know what’s happening here?’ ‘Yeah, you’re a detective, this is the police station.’ He was just readily answering questions.”
The prosecutor added that Monsivais was interviewed on another day by Gilroy Police Officer Deras, who, according to the prosecutor, said, Monsivais “ ‘wanted to talk to us. He kept telling us all this information. He was very willing, ’ and a lot of the things that he told Officer Deras were some of the same things he told Detective Bryan certainly not under the influence then but again as I said there [is] . . . no evidence of drugs there at all.”
To prevail on a claim of ineffective assistance of counsel, a defendant must show not only (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, but also (2) that, as a result, the defendant was prejudiced, i.e., there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) “[I]n order to establish ineffective assistance of counsel, a defendant must show that counsel committed ‘errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ ” (Morris v. State of Cal. (9th Cir. 1991) 966 F.2d 448, 456, cert. den. 113 S.Ct. 96 (1992).) “The decision of how to argue to the jury after the presentation of evidence is inherently tactical.” (People v. Freeman (1994) 8 Cal.4th 450, 498 (Freeman).) “ ‘It is within the permissible range of tactics for defense counsel to candidly recognize the weaknesses in the defense in the closing argument.’ ” (People v. Williams (1997) 16 Cal.4th 153, 264.) Because of “the importance of maintaining credibility before the jury, we have repeatedly rejected claims that counsel was ineffective in conceding various degrees of guilt.” (Freeman, supra, 8 Cal.4th at p. 498.)
In the instant case, Monsivais’s conduct, statements, and testimony left trial counsel with very little to work with. Before Monsivais opened his mouth after the incident, he was positively identified as the shooter who unloaded his gun at the CHP officers not once but twice. He was so cooperative and “painfully honest” when he did start talking that he admitted “Yeah, I was trying to shoot him.” First, Bryan asked Monsivais if he was shooting into the air to scare him. Monsivais’s answer was “No--no I was shooting at him. [¶] [Q.] You were shooting at him. [¶] [A.] Yeah.” A little later Bryan asked if Monsivais was “trying to kill this police officer.” Monsivais said he was trying to “scare ‘em, ” and finally, “If you . . . by trying to scare ‘em, you’re shooting in the air, but when you’re, you said you were trying to shoot him, right?” Monsivais answered, “Yeah, I was trying to shoot him.”
With this painfully incriminating state of the evidence, it was reasonable for trial counsel to use defendant’s insistence that he was high on methamphetamine to try to soften the effect of the admission that he was “trying to shoot” the CHP officers. Counsel could have decided that invoking Monsivais’s drug use solely in this context was more powerful than attempting to use it to negate the intent element of the crime. Counsel could also have been wary of prejudicing the jury by suggesting that Monsivais was refusing to accept responsibility for his actions or by insulting the jury by suggesting that the person who exhibited purposeful activity, i.e., stood up in a swiftly moving vehicle, fired, sat down and reloaded, stood up and fired again, and thrust open his door and ran when the car crashed, was incapable of forming intent.
This decision was reasonable. “[M]atters of strategy are best left to defense counsel and are based largely on their judgment. Tactical decisions will not be reviewed with the hindsight of an appellate court.” (People v. Cram (1970) 12 Cal.App.3d 37, 45 (Cram).) There is no suggestion that counsel failed to emphasize the voluntary intoxication defense during closing arguments due to “ignorance of facts [or the law] which might raise it, and, therefore, without any real judgment by counsel at all.” (Id. at p. 46.)
Furthermore, there was no withdrawal of a potentially meritorious defense where “the evidence of intoxication was slight and ran headlong into other evidence which disproved it” and asking a jury to find lack of the requisite intent “would be foolhardy.” (Cram, supra, 12 Cal.App.3d at p. 45.)
The jury was instructed on the defense of voluntary intoxication. Although defense counsel did not highlight these instructions during his closing argument, a reviewing court will ordinarily conclude that the jury followed the instructions, even where counsel fails to discuss them, for “[w]e presume that jurors treat the court’s instructions as a statement of law by a judge, and the [attorney’s] comments as words spoken by an advocate in an attempt to persuade.” (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.)
Monsivais has not shown he was prejudiced by his attorney’s closing argument. The evidence of guilt was overwhelming and Monsivais established no reasonable probability that counsel’s actions affected the outcome. (People v. Medina (1995) 11 Cal.4th 694, 726.)
Monsivais also asserts that there are clerical errors in his abstract of judgment. We will discuss them in the “sentencing error” section post.
AMPARO’S ISSUES
1. Sufficiency of the Evidence
Amparo, who did not personally shoot at the CHP officers, asserts that there was no evidence that he was an aider and abettor of Monsivais, because there was no showing that, as the jury instructions require, he had “knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, by act or advice, aid[ed], promote[d], encourage[d], or instigate[d] the commission of the crime.” (CALJIC Nos. 3.00, 3.01.) Amparo claims he was a “passive observer, ” a “ ‘bystander’ who was present at the scene of the offenses but took no active role in aiding the perpetration of the offenses; [he] . . . merely continued what he had been doing: Driving the Honda at a high rate of speed. There is no evidence . . . that [he] did any affirmative act, apart from continuing to drive, that intentionally aided, abetted or encouraged Monsivais’ assaults on the officers.”
Amparo asserts that his “mere act of continuing to drive the Honda, while Monsivais fired at the officers, ” may not be used to establish liability on an aiding and abetting theory because it “would impose a duty upon an innocent bystander (including one who happened to be driving a car who observed criminal activity in progress) a duty to act affirmatively to intervene in the unlawful act of the actual perpetrator . . . . [A] bystander is under no duty to act to prevent a crime, absent clear statutory or common-law authority to the contrary. . . . [T]his rule is fully applicable to drivers of moving vehicles.” (Italics Amparo’s.)
In assessing a sufficiency-of-the-evidence argument, the test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) The court must view the evidence in light of the whole record, drawing all inferences in favor of the judgment and must presume the existence of every fact in support of the judgment that could reasonably be deduced from the evidence. To uphold conviction, the record must contain evidence that is reasonable, credible, and of solid value such that any rational trier of fact could have been persuaded of the defendant’s guilt. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382; In re Jose P. (2003) 106 Cal.App.4th 458, 465; Jackson v. Virginia (1979) 443 U.S. 307, 319.)
Whether a person has aided and abetted the commission of a crime is ordinarily a question of fact and reasonable inferences must be resolved in favor of the jury’s verdict. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094 (Lynette G.).) “ ‘[A]ll intendments are in favor of the judgment and a verdict will not be set aside unless the record clearly shows that upon no hypothesis whatsoever is there sufficient substantial evidence to support it.’ ” (People v. Moore (1953) 120 Cal.App.2d 303, 306.)
Aiding and abetting occurs when the defendant, “acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561 (Beeman).) Consequently, whether a person concerned in the commission of a crime directly commits the act constituting the offense, or aids and abets in its commission, he is a principal in any crime so committed. (Pen. Code, § 31.) Accordingly, an aider and abettor “shares the guilt of the actual perpetrator.” (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).)
The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. The actual perpetrator must have whatever mental state is required for each crime charged, here shooting at an occupied vehicle, attempted murder, and attempted murder of public officials. An aider and abettor, on the other hand, must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (Beeman, supra, 35 Cal.3d at p. 560, also quoted in Prettyman, supra, 14 Cal.4th 248.) The jury must find “ ‘the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense.’ ” (Prettyman, supra, 14 Cal.4th at p. 261.) Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. (Ibid.)
Aiding and abetting may be shown by circumstantial evidence such as presence at the crime scene, companionship with the perpetrators, and conduct before and after the offense. (Lynette G., supra, 54 Cal.App.3d at p. 1094.) While presence at the crime scene alone is not sufficient to support a finding of aiding and abetting, it is one factor that tends to show intent. (People v. Hill (1998) 17 Cal.4th 800, 851.) Another factor is the defendant’s failure to take steps to prevent the commission of the crime. (People v. Pitts (1990) 223 Cal.App.3d 606, 693, superceded by statute on other grounds in People v. Levesque (1995) 35 Cal.App.4th 530.) An aider and abettor need not actually assist in the commission of the crime. (People v. Booth (1996) 48 Cal.App.4th 1247, 1256.)
In the instant case, the evidence shows that Amparo acted with Monsivais before, during, and after the shootings. Amparo was involved in a “joint expedition which involved the commission of robberies” (People v. Durham (1969) 70 Cal.2d 171, 185) and other crimes with Monsivais before Monsivais fired on the officers. Monsivais admitted taking part in the July 21 7-Eleven robberies and Amparo was recognized as the coparticipant on the surveillance tape. In addition, Monsivais had carjacked the blue Ford Escort on July 20 which was the vehicle he and Amparo used in the 7-Eleven robberies the next day.
On July 27, Amparo and Monsivais were in possession of stolen property, the Honda. They both admitted knowing that the Honda Amparo was driving on July 27 was stolen (Amparo told Detective Bryan that he had “borrowed” it). Amparo knew there was a gun formerly belonging to his gang-member cousin in the Honda. This was the gun Monsivais stated he got from Amparo’s cousin.
At the time of Amparo’s arrest after the crash, he unlawfully possessed ammunition (he had in his shirt pocket a .357-caliber bullet that fit the gun Monsivais had just fired). Five spent .357 casings were on the floorboard of the Honda. The methamphetamine pipe Monsivais said he was smoking during the flight and shootings at the officers was in the ash tray. Amparo admitted speeding with Monsivais as a passenger at the time the officers first noticed them; and that when the officers attempted to pull them over, he decided to evade them and did not stop. There was no evidence that Monsivais tried to persuade him to stop.
After Monsivais started firing on the officers, Amparo made no effort to slow or stop the car, or to take any steps to stop the shooting. When Amparo crashed the car, he and Monsivais fled.
In this case, Amparo’s continuing to flee police in a stolen car while the passenger stood and fired a gun at the officers, sat down and reloaded, and stood and fired again, demonstrates Amparo’s intent to encourage and bring about criminal conduct. Amparo was not “merely present” at the scene of crimes independently being committed by Monsivais. Amparo’s companionship and conduct before and after the offense (People v. McDaniels (1980) 107 Cal.App.3d 898, 904) and his continuing driving to flee from the officers during the shooting are substantial evidence of Amparo’s aiding and abetting Monsivais. Substantial evidence supports the verdicts in counts 1 through 7.
2. Effective Assistance of Counsel
Next, Amparo claims his trial counsel’s failure to object to Detective Bryan’s testimony identifying him as one of the robbers shown in the 7-Eleven store videotape denied him due process of law, confrontation of witnesses, and effective assistance of counsel and clearly prejudiced him as to those counts. Bochas, the sole percipient victim-witness who testified to the 7-Eleven robbery, said his back was to the counter and he did not see the robbers and was afraid to look, so he was unable to identify either of the robbers from the videotape of the event.
Monsivais, the sole participant-witness, had admitted to Bryan that he robbed the clerks at gunpoint and explained how the robbery was committed even though he did not repeat this evidence at trial. He did state that everything shown on the tape was correct. Bryan’s testimony of the robbery was based on Monsivais’s statement and the tape of the robbery. Because “[t]here was a technical issue, ” the video was not available for trial. Since Bryan’s testimony that Amparo was the second robber was the only solid evidence connecting him to the crime, Amparo claims his counsel was ineffective and his conviction should be reversed because counsel “committed ‘errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ ” (Morris v. State of Cal., supra, 966 F.2d 448, 456, cert. den. 113 S.Ct. 96 (1992).) Furthermore, counsel could have had “ ‘no rational tactical purpose for his act or omission.’ ” (People v. Frye (1998) 18 Cal.4th 894, 980.)
In the complained of testimony, Bryan stated that he viewed the videotape at the 7-Eleven store and compared the second robber in that robbery to Amparo, the robber shown in the Valley Truck Stop robbery tape and identified by Sylvia, the clerk and percipient witness to the Valley Truck Stop robbery. Bryan described the second 7-Eleven robber as “an extremely large man. Very tall. Heavy set. Had a baseball cap pulled down very low over his eyes concealing his face. Slumped shoulders.” Bryan stated he was certain that the second robber was Amparo “but I couldn’t identify him by face.”
Amparo asserts that Bryan’s identification of him was “blatantly inadmissible hearsay” (Ashford v. Culver City Unified School Dist. (2005) 130 Cal.App.4th 344, 350), inadmissible opinion evidence, and was prejudicial to him because there was no other evidence of the identity of the second robber. Amparo states that “to the extent Detective Bryan was interpreting the tape as making a statement that ‘[Amparo] was the other robber, ’ which he [Bryan] surely was, that statement was hearsay because it was an out-of-court statement offered to prove the truth of the matter asserted, i.e., that [Amparo] was the other robber.”
The People counter that the statement was not hearsay because Bryan was a witness and was available for cross-examination. “He did not describe statements or identifications that he had made prior to the trial, but instead described in court what he personally observed on a 7-11 [sic, 7-Eleven] surveillance tape.”
“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200.) The content of the videotape, namely, what it depicted, was the statement that was made. A videotape is equivalent to a “writing” for Evidence Code purposes. (People v. Rich (1988) 45 Cal.3d 1036, 1086, fn. 12.)
Further statutory references are to the Evidence Code unless otherwise stated.
“ ‘Writing’ means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” (§ 250.)
Authentication of a writing is required before it or secondary evidence of its contents may be received into evidence. (§§ 1401, 1521.) The authenticity of a video recording may be established by any testimony or other evidence which demonstrates that it accurately depicts what it purports to show. (People v. Mayfield (1997) 14 Cal.4th 668, 747; § 1400.) The content of a writing may be proved by secondary evidence including oral testimony. (§ 1523.) As is relevant here, oral testimony is admissible to prove the content of a writing when the proponent did not have possession or control of a copy of the writing and the original was lost or destroyed without fraudulent intent on the part of the proponent of the evidence. (Id., subd. (b).)
Nevertheless, the court shall exclude secondary evidence of the content of the writing if the court determines that a genuine dispute exists concerning material terms of the writing and justice requires the exclusion. (§ 1521, subd. (a)(1).)
In the instant case, there was a genuine dispute concerning material terms of the videotape: Amparo pled not guilty to the counts charging him with the robberies of the two 7-Eleven clerks. He did not dispute that the events took place, only that he was the second robber. In summation, his counsel vigorously argued that the person who committed the Valley Truck Stop offense was about four inches shorter and lighter-framed than Amparo according to witnesses’ descriptions. Furthermore the Valley Truck Stop robber wore a blue shirt while the 7-Eleven robber wore a red shirt, the significance being that red is the Norteño gang color and blue is the color of its rival criminal street gang, the Sureños. Amparo was a committed Sureño gang member since age 11, had the gang number “X3” (“13”) tattooed on his face over his left eyebrow and on the back of his head, and “a number” of Sureño tattoos on his body. By his own admission, he also had a manner of walking and carrying himself so that people seeing him on the street and viewing the way he dressed and his tattoos and mannerisms would think he was a Sureño.
Counsel stated the Valley Truck Stop robber “is 5 [feet] 9 [inches] according to the witnesses. 6 [feet] 1 [inch] over here [on counsel’s list on the courtroom chalkboard of similarities and differences between the two robberies]. 200 pounds. 200 pounds. Of course, the guy 6 [feet] 1 [inch], 200 pounds looks different. So this guy has a medium build. This one is heavy. Red shirt blue. Gun on the counter. [¶] . . . Looking at that, could you say that the same guy did those two offenses. I mean there’s a big difference between 5 [feet] 9 [inches] and 6 [feet] 1 [inch], heavy build, medium. There’s a huge difference. Four inches is a lot. Marcos Amparo is 6 [feet] 3 [inches]. 250. Or I’d say 250 to 300 based on what Detective Bryan said. I know some of you might watch football on Sundays. You know, guy about 200 is about the same size as a small running back. A guy 6 [feet] 3 [inches], 300 is a lineman. Big one. When those two people stand together, . . . there’s difference in who’s bigger and it’s significant.” Counsel acknowledged that the clerk, Sylvia, testified both that the gun was pointed at her and was laid on the counter and he discussed the significance of the red shirt in one robbery and the blue shirt in the other, and the fact that Amparo had a tattoo over his left eye, but that if he pulled the cap forward to hide it, he would be revealing the “13” on the back of his head.
The dispositive evidence on the issue of identity of the second 7-Eleven robber was the videotape’s representation of the second robber. Amparo contested it; there was a genuine dispute concerning a material term of the writing.
The videotape was the only solid evidence the prosecution had that Amparo was involved in the 7-Eleven robbery. Absent Bryan’s identification testimony based on a comparison of the robbers in the 7-Eleven and the Valley Truck Stop videotapes and his personal view of Amparo, no evidence would have been available to the prosecution to prove the 7-Eleven counts as to Amparo. Neither defendant disputed that the content of the videotape was the visual representation of the robbery made by the store surveillance camera at the time of the robbery and that it accurately depicted the robbery. Neither defendant claimed that the videotape was misleading or unfair. Neither defendant suggested that Bryan was negligent in failing to obtain the tape, or that he altered or edited it, or acted in bad faith or with any intent to deprive either defendant of this evidence. (See In re Michael L. (1985) 39 Cal.3d 81, 87.)
Furthermore, although the sole testifying clerk did not testify that the tape was a correct representation of the events at the 7-Eleven on July 24, Bryan testified that one of the perpetrators, Monsivais, in admitting committing the robbery (§ 1220), described how the robbery was carried out. Bryan testified he compared Monsivais’s description of the 7-Eleven robbery to the events as captured on the videotape, and with the exception that the second robber, not Monsivais, was the robber who handled the gun, the taped robbery conformed to Monsivais’s description.
“A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.” (§ 1421.) Monsivais was, as it were, an “author” of the events captured by the videotape. “Pursuant to Evidence Code section 1400, it is sufficient to authenticate a . . . videotape if the proponent makes a showing the videotape is an accurate portrayal of what it purports to be.” (Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436, 440, fn. 5 (Jones).)
At trial, Monsivais authenticated the tape, not by testifying about the robbery itself, but by admitting that he had seen the videotape of his interview with Detective Bryan, and that everything he (Monsivais) said on it was true. A film reconstructing the events of a crime may be properly authenticated by one of the participants in the crime. (Jones, supra, 20 Cal.App.4th at p. 441.) The 7-Eleven videotape was not a “reconstruction” of the crime but was a representation of the crime itself. The declarant, the tape, was authenticated by a participant in the robbery and competent secondary evidence of its content was available. It was, therefore, admissible as a hearsay exception as a matter of state law. The trial court did not err in concluding that justice did not require exclusion of the identification testimony.
Nevertheless, Amparo contends that use of Bryan’s testimony deprived him of the right to confront the witnesses against him. The confrontation clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides an accused with the right to be confronted with the witnesses against him or her.
“In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court announced a new standard for determining when the confrontation clause of the Sixth Amendment prohibits the use of hearsay evidence--i.e., an out-of-court statement offered for its truth--against a criminal defendant. Crawford held that this clause protects an accused against hearsay uttered by one who spoke as a ‘ “witness[]” ’ ‘ “bear[ing] testimony” ’ [citation] if the declarant neither takes the stand at trial nor was otherwise available for cross-examination by the accused.” (People v. Cage (2007) 40 Cal.4th 965, 969 (Cage).)
“Crawford declined to provide a comprehensive assessment of what kinds of hearsay fall within this ‘core class of “testimonial” statements.’ [Citation.] However, the court concluded that, even under ‘a narrow standard, ’ testimonial statements include those made, during a formal police interrogation, by one who was herself a suspect in the crime under investigation.” (Cage, supra, 40 Cal.4th at p. 969.) The “more recent high court decision, Davis v. Washington (2006) 547 U.S. __ [126 S.Ct. 2266] (Davis), . . . clarifies the distinction between testimonial and nontestimonial hearsay.” (Id. at p. 970.) Testimonial statements are “given as an analog of testimony by a witness--they [are] made in response to focused police questioning whose primary purpose, objectively considered, [is] not to deal with an ongoing emergency, but to investigate the circumstances of a crime, i.e., ‘to “establis[h] or prov[e]” some past fact.’ ” (Ibid.)
Here, the statement, the tape, was not made in response to an “interrogation”--there was not and could be no “focused police questioning.” However, the tape was made to provide a record of an event ongoing when the tape was being recorded, and its primary purpose was to prove or establish the facts of the event it was recording for investigation and for possible use at a trial. (Cage, supra, 40 Cal.4th at p. 984.) In that sense the tape was “testimonial.” “The Crawford majority did not foreclose the possibility that statements made outside the context of police investigation or interrogation could be testimonial.” (Id. at p. 979.)
In addition, Bryan’s testimony, the secondary evidence of the contents of the tape, was based on his view of the tape and was corroborated by Monsivais’s description of the goings-on to Bryan. Monsivais attested to the accuracy of Bryan’s in-court description of the robbery when he testified at trial. The 7-Eleven videotape led Bryan to Valley Truck Stop and Sylvia. Sylvia produced the Valley Truck Stop videotape for Bryan and picked Amparo out of the lineup Bryan assembled after viewing both videotapes. Bryan; Monsivais, the authenticator of the tape; and Sylvia, who provided the link between the images on the 7-Eleven tape and the Valley Truck Stop tape and an in-court identification of Amparo, were all available for cross-examination.
The correctness of Bryan’s identification of Amparo on the videotape was evidenced by Bryan’s selection of Amparo’s photograph to include in the photo lineup and by Sylvia’s identification of Amparo in the lineup as a result of viewing him during the Valley Truck Stop robbery. Sylvia testified to an excellent view of Amparo during the robbery despite his attempts to hide his face. She readily recollected his distinguishing characteristics including height, size, weight, slumped shoulders, and type of clothing. These were markedly similar to those of the large man in the 7-Eleven robbery. In addition, Sylvia described her robber’s “twisted” nose. She unhesitatingly identified Amparo in court. Admission of secondary evidence of the tape under a recognized state exception to the hearsay rule did not deprive Amparo of his right to cross-examination and confrontation.
Finally, counsel was not ineffective for failing to object to the identification testimony at trial. “Trial counsel is not required to make futile objections, advance meritless arguments or undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel.” (People v. Jones (1979) 96 Cal.App.3d 820, 827.) Where a claim of ineffective assistance of counsel is based upon counsel’s failure to make an objection, appellant can demonstrate prejudice only by showing that the objection would have been sustained. (People v. Mattson (1990) 50 Cal.3d 826, 876, superceded on other grounds in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.) That was not the case here.
3. Hearsay--Gang Membership
Next, Amparo contends the court erred in allowing gang expert Officer Royce Heath’s statement, that Amparo’s brother told him Amparo was a gang member, to be used as part of the basis for Heath’s expert opinion that Amparo was, in fact, a gang member. Amparo asserts that this evidence to prove alleged gang associations and thus the gang enhancements alleged under Penal Code section 186.22, subdivision (b), denied him his rights to due process and confrontation in violation of the federal and state Constitutions and Crawford, supra, 541 U.S. 36.
Penal Code section 186.22, subdivision (b), states as relevant here, “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as [stated in the paragraphs that follow].”
In a motion in limine before Heath testified about gang conduct, practices, membership, and indicia of membership, and Amparo’s connection to a gang, Amparo’s counsel moved to exclude mention of a June 2003 contact between Heath and Amparo’s brother (unnamed at trial, called “X” here) in which X stated that Amparo was a gang member with a “13 tattoo about his left eye” and identified Amparo as a suspect in a theft of property from X and other family members. Counsel requested that references to Amparo as a suspect in the theft be excluded as irrelevant and more prejudicial than probative. (§ 352.) The court allowed Heath to refer to the statement as part of the basis of his opinion but forbade mention that Amparo was a suspect in a theft.
Defense counsel also objected that X’s statement was not reliable and was biased and that it should be eliminated from the officer’s opinion and consideration. The court stated that X’s possible bias was a question of the weight of the evidence and not its admissibility.
During trial, Heath was asked if he researched Amparo’s record for police contacts with or about Amparo that would have been considered gang related. Heath mentioned a July 3, 2003 [sic, June 2003, ante] police contact with X who explained that part of the fear that he had was that Amparo was a gang member and he specifically pointed out to the officer that Amparo had “the Roman Numeral 13 tattooed on his face.” Heath’s testimony included other contacts and observations on other occasions.
Heath testified as an expert, that is, a person with “special knowledge, skill, experience, training, or education” in a particular field (§ 720) whose opinion testimony is admissible if the subject matter is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (§ 801, subd. (a).) The subject matter of the culture and habits of criminal street gangs meets this criterion. (Gardeley, supra, 14 Cal.4th at p. 617.) Such testimony may include “an individual defendant’s membership in, or association with, a gang [citations], . . . whether and how a crime was committed to benefit or promote a gang.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.)
“[M]atter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony. . . . [B]ecause Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter . . . upon which it is based, ’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion.” (Gardeley, supra, 14 Cal.4th at p. 618.)
“ ‘[A] trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused.’ ” (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) “California law gives the trial court discretion to weigh the probative value of inadmissible evidence relied upon by an expert witness as a partial basis for his opinion against the risk that the jury might improperly consider it as independent proof of the facts recited therein.” (People v. Coleman (1985) 38 Cal.3d 69, 91.)
Amparo asserts that Crawford, supra, 541 U.S. 36, held that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” (Id. at pp. 68-69.) Testimonial hearsay is admissible only if the declarant is unavailable and there has been a prior opportunity for cross-examination of the declarant. “Testimonial” statements are those made in contemplation of future use at a later trial. (Id. at p. 52.)
Amparo states his brother’s statement was clearly “testimonial” because it was made in the course of a statement to the police about the theft of property from a family member and he had no opportunity to cross-examine the witness. In Amparo’s analysis, “the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis, supra, 547 U.S. at pp. __ [126 S.Ct. 2266 at pp. 2273-2274].)
The People rely on People v. Thomas (2005) 130 Cal.App.4th 1202, 1210, for the statement, “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions.” Thomas continued, “This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion.” (Ibid.)
Amparo responds that Thomas and cases like it “are badly reasoned.” Amparo points out that “an expert’s opinion must be based on facts and there is a threshold requirement of reliability before out-of-the-record hearsay can be utilized by an expert. (People v. Gardeley, supra, 14 Cal.4th at pp. 618-619.) And if Crawford teaches anything, it is that there is an irrebuttable presumption that testimonial hearsay by an unavailable declarant is unreliable.” Amparo concludes, “[h]ence, it cannot be relied upon by the expert in forming an opinion. The fact that the expert and not the declarant[] is available for cross-examination is an assertion that flies in the face of Crawford. Indeed, the present case presents a pristine case of an uncross-examined hearsay statement embedded within expert testimony that, necessarily, will be considered by the jury as independent proof of the fact asserted apart from the expert opinion; i.e., appellant is a gang member.” “[G]iven the nature and source of the testimony, it is extremely unlikely that the jury would not consider appellant’s brother’s testimony for the truth of the matter asserted, i.e., that appellant is a gang member.”
“Expert testimony may . . . be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert’s opinion testimony must be reliable. [Citation.] For ‘the law does not accord to the expert’s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.’ ” (Gardeley, supra, 14 Cal.4th at p. 618.)
As regards X’s statement, it was offered to prove the truth of what he stated, namely, that Amparo was a gang member. As the New York high court has said, “We do not see how the jury could use the statements of the interviewees to evaluate [the expert’s] opinion without accepting as a premise either that the statements were true or that they were false. Since the prosecution’s goal was to buttress [the expert’s] opinion, the prosecution obviously wanted and expected the jury to take the statements as true. . . . The distinction between a statement offered for its truth and a statement offered to shed light on an expert’s opinion is not meaningful in this context. (See Kaye et al., The New Wigmore: Expert Evidence § 3.7, at 19 [Supp. 2005] [‘[T]he factually implausible, formalist claim that experts’ basis testimony is being introduced only to help in the evaluation of the expert’s conclusions but not for its truth ought not permit an end-run around a Constitutional prohibition’].)” (People v. Goldstein (2005) 6 N.Y.3d 119, 127-128.)
The court concluded that the statements of the interviewees that were offered for their truth were hearsay, and were testimonial “in the sense that Crawford used that term.” (People v. Goldstein, supra, 6 N.Y.3d at p. 128.) “In short, defendant’s rights under the Confrontation Clause were violated when [the expert] was allowed to tell the jury what witnesses defendant had no chance to cross-examine had said to her.” (Id. at p. 129.)
In this case, X’s statement was inadmissible because it was admitted for the truth of the matter asserted, that Amparo was a gang member, and X was not available for cross-examination. The trial court should have excluded that statement. A trial court “ ‘has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.’ [Citation.] A trial court also has discretion ‘to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.’ [Citation.] This is because a witness’s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into ‘independent proof’ of any fact.” (Gardeley, supra, 14 Cal.4th at p. 619.)
This does not mean that the error is reversible per se. In discussing Crawford, Cage stated, “[w]e presume that . . . lower courts remain[] free to determine, by appropriate standards, whether the admission of [the improper evidence] was prejudicial or harmless.” (Cage, supra, 40 Cal.4th at p. 979, fn. 8.)
Amparo declares the conviction should be reversed because he was prejudiced, that is, the admission of the improper evidence was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Amparo “acknowledges that evidence was presented of [his] gang associations stretching over the previous eleven years. Yet [his] defense . . . was that he had recently (and repeatedly) renounced his gang affiliations, e.g., in 2002, 2003 and 2004. [His] status as a gang ‘drop out’ was documented by law enforcement and confirmed by [his] codefendant.” Amparo claims the defense was “seriously undermined” by the statement of his “own brother, ” by the timing of the inadmissible hearsay statement (it was made during “the period . . . [in] which [he] renounced his gang affiliations”); its source (“an intimate family member whom the jury would naturally assume to be . . . ‘reliable’ ”); and the “unassailable nature of the statement” (the declarant could not be cross-examined). These factors render the error harmful beyond a reasonable doubt. (Original italics.)
We disagree. First, the jury was instructed that evidence of the hearsay statements Heath relied on in forming his opinion that a specific act would be considered gang related, was received only to show the basis for that opinion. The court stated it was up to the jury to decide the believability of the information, the weight if any, and the value, if any, that the hearsay statements had in aiding the jury to decide the ultimate question, namely, whether one or both of the defendants committed a crime, and whether that crime was committed for a gang purpose.
Second, the evidence that Amparo was a Sureño gang member was overwhelming. He associated with Monsivais who was a gang member. When Amparo was arrested, he admitted he associated with Sureños and he was wearing a blue sweatshirt, the gang color.
His body advertised his gang membership. He had unmissable tattoos on his face, head, neck, back, hands, and arms. Photographs showed three dots next to the left eye and above the left eye, the Roman numeral “XIII” and the 13th letter of the alphabet, “M” for “Mexican mafia.” “Salinas” was tattooed on his neck. A “very large” “13” was on the back of his head “with the head shaved so that that can be easily displayed and his association shown. Directly below that . . . [his gang moniker] Mr. Baby Face . . . on his back.” Amparo also had “brown” tattooed on his back, often used as “brown pride” or in his case, “brown and proud.” His arms had tattoos that, taken together, read “south side 13.” He had a “3” on a middle finger. Finally, his clothing, manner, and demeanor broadcast a message making a person seeing him on the street think he was a Sureño member.
In contacts with Amparo from 1994 to the time of the trial in 2004, police recorded that in November 2000, Amparo was wearing blue clothing, and carried a small tape recorder with his moniker and gang slogans or sayings carved into the tape recorder itself. He also admitted belonging to a new Sureño gang called “South Side Trece.” In June 2000, Amparo was contacted in the company of admitted and certified gang members. He hung out on a specified street controlled and frequented by Sureños. In 1998, Amparo admitted he was a La Posada Trece Sureño gang member. Heath stated Amparo also admitted associating with southerners and said that northerners or Norteños are his enemies.
“Certification” was a process undertaken in conjunction with the Monterey County District Attorney’s Office in which police department gang unit members would gather certain categories of information about gang members and serve individuals with formal notices letting them know that the Sureño is considered a criminal street gang and that there were ramifications and enhancements which could be filed for criminal conduct.
The 2004 Valley Truck Stop robbery involved gang colors and the use of a firearm. Heath stated the use of firearms in connection with crimes is meant to cause fear and intimidation in victims and witnesses as a means of dissuading them from testifying or coming forward with information. Excluding the July 2003 contact with X, six months earlier in January 2002, there was a contact with Amparo in which he was wearing blue clothing and a belt with a silver or chrome buckle reading “S” for Sureño.
After the arrest on the instant offenses, Amparo was housed in the separate unit at the Monterey County jail for “drop outs” because at the time of booking, Amparo claimed to be a drop out. He was also housed in the “drop out” unit when he was jailed in 2002 and 2003. Heath’s expert opinion was that Amparo was an active gang member involved in crime for the benefit of the Sureño street gang.
The jury agreed and found true the gang enhancements alleged against Amparo. Substantial evidence supports the jury’s finding. Although Amparo might have claimed to be a gang “drop out, ” weighing the credibility of witnesses and resolving conflicts in the evidence are matters for the jury. (§ 312; Pen. Code, § 1127; Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.) The admission of the improper evidence of X’s hearsay statement was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
4. Knowledge of the Predicate Offenses
Next, Amparo states that his gang enhancements must be stricken because the prosecution did not present evidence that he had knowledge of the “predicate offenses.” Amparo states that punishing him for promoting conduct by gang members (Pen. Code, § 186.22, subd. (b)(1), (5), hereafter, section 186.22(a), (b), etc.) when there is no proof that he knew of facts that rendered his activity “gang activity” (i.e., the predicate acts) violated his state and federal due process rights.
Reading from police reports and court records, Officer Heath listed the following offenses committed by Sureño gang members: (1) shooting at an occupied vehicle, defendant Jesùs Chuca, case No. SS042755A; (2) vehicle theft, defendant Javier Navarro, case No. SS042121A; (3) assault with a firearm, defendant Jose Perez, case No. SS040596A; (4) two counts of robbery, defendant Jorge Quiroz, case No. SS022622A; (5) murder, defendant Miguel Rivera, case No. SS022302.
Amparo acknowledges that it has been held that proof of the defendant’s knowledge of the “predicate acts” is not a condition precedent to imposition of a “gang” enhancement. (See People v. Gamez (1991) 235 Cal.App.3d 957, 974-975 (Gamez), disapproved on other grounds in Gardeley, supra, 14 Cal.4th at p. 624, fn. 10.) Nevertheless, Amparo states these cases rely on federal authority interpreting and upholding RICO (Racketeer Influenced Corrupt Organizations) statutes. (18 U.S.C. § 1961.) The government must show the organization is involved in racketeering activity, namely, the commission of various predicate offenses within a certain time period. Defendant’s association with the organization is for the purpose of promoting such racketeering activity and knowledge of the predicate offenses themselves is not required. (See United States v. Tripp (6th Cir. 1986) 782 F.2d 38, 42; Gamez, supra, 235 Cal.App.3d at p. 975.)
In California, in order to impose enhanced punishment for persons who participate in a gang knowing that its members have engaged in “a pattern of criminal gang activity, ” and who are convicted of a crime “committed for the benefit of, at the direction of, or in association with any criminal street gang” (§ 186.22(a), (b)(1)), the prosecution must prove that gang members have committed two or more of the criminal offenses specified in section 186.22(e) (such as robbery, section 186.22(e)(2)), within a particular time period, or a single offense committed by two or more persons on the same occasion. (Gardeley, supra, 14 Cal.4th at p. 610.)
The prosecution may rely on the “current offense for the purpose of establishing a pattern.” (Gardeley, supra, 14 Cal.4th at p. 625.) Evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member can establish the requisite pattern. (People v. Loeun (1997) 17 Cal.4th 1, 5.)
So, “[w]hile Officer Heath did testify about the criminal activities of the Sureño gang” (see fn. 10, ante), he did so in response to a question asking him to give examples of the “ ‘primary activities of the Sureño criminal street gang.’ ” (Gardeley, supra, 14 Cal.4th at pp. 617-620 [expert permitted to testify as to gang’s “primary activities”].) The “predicate offenses” about which Heath testified, after listing the gang’s primary activities, were those committed by Amparo and Monsivais on July 27, 2004: robbery, driving a stolen car, and shooting at an occupied vehicle and shooting from a motor vehicle. (§ 186.22(e)(1) [assault with a deadly weapon], (e)(2) [robbery], (e)(5) [shooting at an occupied motor vehicle], (e)(6) [discharging or permitting the discharge of a firearm from a motor vehicle], (e)(10) [grand theft of any firearm, or vehicle].)
Although there is no requirement that the prosecution prove that the defendant knew of the gang’s “primary activities, ” this evidence rebuts Amparo’s claim that he did not “knowingly further[] the ends of his ‘gang’ as that term is defined by statute.” There was no error.
SENTENCING ERROR
1. Amparo’s Claims
Finally, Amparo claims that the trial court erred in imposing sentence on counts 1, 2, and 4 because it imposed and stayed the sentence as to those counts. Amparo states the correct procedure was not to impose and stay the sentences but merely to stay them. According to People v. Bonillas (1989) 48 Cal.3d 757, 802, the court is required to impose sentence before staying it pursuant to Penal Code section 654.
Amparo also argues that the 20-year personal use of a firearm enhancement (Pen. Code, § 12022.53, subd. (c)) imposed on count 3, attempted murder of a peace officer (id., § 217.1, subd. (b)), was improperly imposed pursuant to Penal Code section 12022.53, subdivision (e)(2) because he did not personally use or discharge a firearm in the commission of the offense and the jury did not so find. The latter subdivision provides that the personal use of a firearm enhancement “shall not be imposed” in addition to an enhancement for participation in a criminal street gang.
Contrary to Amparo’s argument that “the jury did not so find” that he personally used or discharged a firearm, the verdict form states that Amparo “was a principal in Count 3” and that he “did intentionally and personally use and discharge a firearm in violation of Penal Code [section] 12022.53 and that crime was committed for the benefit of, . . . a criminal street gang, within the meaning of Penal Code Section 186.22(b)(1).)”
Amparo’s abstract of judgment, which mistakenly labels count 3 “carjacking, ” although it correctly stated the charged Penal Code section number, section 217.1, subdivision (b), states that the court imposed the 20-year enhancement pursuant to Penal Code section 12022.53, subdivision (c). At sentencing, the trial court stated “[t]here is a 20-year enhancement that is served separately, which is a determinate term.” The court did not impose a sentence on the Penal Code section 186.22, subdivision (b) enhancement for count 3. There was no error.
Amparo also claims the gang enhancements were wrongly imposed as to counts 1 through 4, 9 through 12, and 14 through 16. Since we have found that the gang enhancements were correctly imposed ante, there is no basis for this contention.
2. Monsivais’s Claims
Monsivais asserts his abstract of judgment must be corrected because of “numerous clerical errors . . . that could adversely affect his prison sentence.” Clerical errors in an abstract of judgment may be corrected at any time. (In re Candelario (1970) 3 Cal.3d 702, 705.)
He finds mistakes on page one of the indeterminate prison commitment abstract of judgment in the listing of sentences of 15 years to life on counts 1 through 4, 7, and 18 on line 6a. He states counts 1, 2, 4, and 7 should not be listed there because they were either concurrent or stayed. The sentences were correctly listed. That they were concurrent or stayed is shown in the first matrix on the indeterminate sentencing commitment form relating the counts, charges, and sentences.
He correctly points out the correct Penal Code section for count 3 is section 217.1, subdivision (b), attempted murder of a public officer, not, as stated, attempted murder, sections 664, 187, subdivision (a). The correct sections for the conduct enhancements on the first page of the determinate sentence abstract of judgment for counts 15 and 16 are Penal Code section 12022.53, subdivision (b).
Finally, Monsivais correctly states all of the gang enhancements on the determinate sentencing page should be listed with the conduct enhancements and tied to a specific count instead of being placed in the prior convictions box.
DISPOSITION
The judgment is affirmed. The clerk of the court shall correct Amparo’s abstract of judgment on page 566 of the clerk’s transcript to state the section number listed for count 4 as Penal Code section 217.1, subdivision (b), and state the crimes listed in counts 3 and 4 are attempted murder of a public officer.
The clerk of the court shall correct Monsivais’s abstract of judgment on page 561 of the clerk’s transcript to correct the Penal Code section 12022.53 enhancements for counts 15 and 16 to read section 12022.53, subdivision (b). The clerk shall correct count 3 on the indeterminate prison commitment page of the abstract of judgment (page 563 of the clerk’s transcript) to read Penal Code section 217.1, subdivision (b), attempted murder of a public officer.
The clerk of the court shall correct both Monsivais’s and Amparo’s abstracts of judgment to remove the Penal Code section 186.22, subdivision (b)(1) gang enhancements from the prior convictions box on the determinate abstracts of judgment (pages 561 and 568 of the clerk’s transcript) and list them with the conduct enhancements tied to a specific count.
Corrected abstracts of judgment for both defendants shall be forwarded to the Department of Corrections.
WE CONCUR: Rushing, Elia, J.