Opinion
A146341
12-06-2017
THE PEOPLE, Plaintiff and Respondent, v. IVAN SANCHEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCTM CRCR 13-72354)
Ivan Sanchez (Appellant) was convicted of assault with a deadly weapon with a gang enhancement. He argues the enhancement finding must be reversed because expert testimony, including case-specific hearsay, was admitted in violation of the rule of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and because the prosecutor committed misconduct by eliciting evidence previously excluded by the trial court. We conclude there was no reversible error and affirm.
I. BACKGROUND
In November 2013, Appellant was charged by information with assault with a deadly weapon (a wooden club) (Pen. Code, § 245, subd. (a)(1)) committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)). A jury trial commenced in February 2014.
An additional charge of unlawful participation in criminal street gang activity (Pen. Code, § 186.22, subd. (a)) was dismissed during trial.
Rachel L. testified that she was driving with her daughter through Fort Bragg on May 16, 2013, when she observed an altercation near a Rite Aid Pharmacy. A man wearing khaki pants and an oversize blue top crossed the street to approach a man wearing a red hat. She heard yelling and saw the man in blue swing a club or stick at the man in red, striking him once on the upper side or shoulder. The man in red raised the front wheel of a bicycle he was pushing to protect himself, then fled. The man in blue made hand gestures toward the man in red. Rachel's teenage daughter, provided similar testimony. She said the man in blue also made hand gestures as he crossed the street and had a "13" tattoo on the back of his head. Rachel reported the incident to the police, and she and her daughter identified Appellant as the man in blue in a photographic lineup and again in court.
Richard Olstad testified he was a Norteño gang member at the time of the incident, and Appellant was a member of the local Sureño gang in Fort Bragg, "CVC." Olstad's then girlfriend, Cheyenne, had cheated on him with Appellant's brother, Jorge, which caused problems between him and both Jorge and Appellant, but Olstad also had prior issues with Appellant.
On May 16, 2013, Olstad was wearing a red hat and a red belt that hung down, which communicated to rival gang members that he was a Norteño. As he walked a bicycle and carried groceries with Cheyenne near the Rite Aid, he noticed Appellant nearby wearing a blue shirt and khaki pants. Appellant approached "a little excited" and said, "What's up?" Olstad said he did not want any problems and kept walking. Appellant pulled out a stick and swung it at Olstad's head, but Olstad dodged the blow and the stick struck his shoulder. Olstad walked away, and Appellant walked toward the Rite Aid.
Fort Bragg Police Officers Charles Gilchrist and Jeremy Mason responded to a dispatch about the altercation. Both were familiar with Appellant from previous law enforcement contacts and knew he was a Sureño gang member. Mason observed Appellant by the Rite Aid in an oversize blue shirt and with a blue bandanna hanging out of his pants pocket. Appellant's hair was cropped short and clearly-visible "13" and "CVC" tattoos covered most of the back of his head and neck. When Appellant noticed the police, he quickly entered the Rite Aid and exited from the other side of the store. Gilchrist intercepted Appellant and recorded an interview with him, which was played for the jury. Appellant seemed to be winded, but he had no weapons on his person and denied having been in any altercation. Appellant said he would not report an incident even if it had occurred because of (in the officer's words) the "laws of the street," but added: "I wish I could. So they could get fucked over and shit." During their conversation, Gilchrist referred to "red guys," meaning Norteños, and Appellant appeared to understand the reference.
In the interim, Olstad and Cheyenne had gone to Cheyenne's apartment. Mason and Gilchrist were dispatched to the apartment on a domestic disturbance call. Olstad reluctantly reported arguing with Cheyenne about what had happened outside the Rite Aid. The problem regarding Cheyenne's dating Jorge was also discussed. Police arrested Olstad on an outstanding warrant and for being under the influence of methamphetamine.
Olstad admitted he and Cheyenne had used crystal methamphetamine the day before and he tested positive for methamphetamine and opiates on the day of the assault.
Mason participated in a later arrest of Appellant at his residence pursuant to a warrant. Appellant lived with as many as seven people, including brothers who were also Sureño members. When there was no response to the officers' knock and notice, they forced the door open and were met with "an angry dog," a pit bull. "[A]fter several moments of us trying to catch the angry dog, [Appellant] responded out from the kitchen with his hands up. [¶] . . . [¶] I initially ordered him to the ground so that we could keep him secure so that we could detain the dog; however, we were having so much trouble detaining the dog, we ordered him out, secured him in handcuffs and then we were able to detain the dog." A search of Appellant's residence uncovered a wooden dowel similar to the weapon described by the witnesses, as well as an oversize blue shirt, khaki pants, and a blue bandana that appeared to be the clothes Appellant was wearing on the day of the incident.
Fort Bragg Police Sergeant Andrew Kendl testified as a gang expert. Kendl testified that he had "many" contacts and conversations with Appellant during his time with the Fort Bragg Police Department and opined that Appellant was a CVC Sureño member, and CVC Sureño was a criminal street gang whose primary activities included criminal activity and whose members had engaged in a pattern of criminal activity. He testified: "When a gang member is willing to go out into the public and commit a crime for everyone to see, they're saying that they are a dominant person and . . . their gang is willing to do whatever it is they feel like doing." Such conduct benefits a gang because "the stronger they are, the more they can get away with. . . . [C]itizens don't want to say anything because they're afraid of retaliation." Gangs consider rival gangs in the same area to be challenging their dominance and "trying to take what's theirs," which is disrespectful. Gang members use hand signs to identify themselves as gang members and as signs of disrespect toward rival gangs, and they gain status by disrespecting members of rival gangs.
"To prove the gang enhancement pursuant to [Penal Code] section 186.22, subdivision (b)(1), the prosecution must demonstrate that the underlying felonies (1) were committed for the benefit of, at the direction of, or in association with any criminal street gang; and (2) were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members." (People v. Roberts (2017) 13 Cal.App.5th 565, 572.) " 'To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity.' [Citation.] 'A "pattern of criminal gang activity" is defined as gang members' individual or collective "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated "predicate offenses" during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.] The charged crime may serve as a predicate offense [citations], as can "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." ' [Citation.] The prosecution need not prove, however, that the predicate offenses used to establish a pattern of criminal activity were gang-related." (People v. Ochoa (2017) 7 Cal.App.5th 575, 581, fn. omitted.) The specifics of Kendl's testimony on these topics are discussed in greater detail post.
The prosecutor asked Kendl the following hypothetical question: "If you encountered a case where a Sureño gang member, wearing the colors, wearing an oversized blue shirt, blue bandanna, approaches another young man on the street in the middle of town in still daylight hours . . . [who] was wearing the colors of a Norteño, red hat, red belt buckle, things of that nature, and as he approaches him, without provocation essentially, strikes him with a weapon, do you have an opinion as to whether or not that crime was committed for the benefit or at the direction of or in association with a criminal street gang?" Kendl opined it would be and it would be committed with the specific intent to promote or further or assist in criminal conduct by gang members. He discounted the theory that the assault arose from a personal grievance between Olstad and Appellant (arising from Cheyenne's relationship with Jorge) rather than for the benefit of the gang. Kendl acknowledged that Cheyenne's relationships with Olstad and Jorge could be problematic, but "I would see that Olstad would more have a problem with Jorge [because] it was Olstad's girlfriend that had sex with Jorge. Not the other way around."
Karina Martinez testified for the defense. Appellant concedes the jury did not find her testimony credible and does not rely on her testimony for his arguments on appeal. Therefore, we do not summarize her testimony.
The jury found Appellant guilty of assault with a deadly weapon and found the gang enhancement to be true. The court sentenced Appellant to three years for the assault and five years for the gang enhancement.
II. DISCUSSION
A. Timeliness of Appeal
The People urge us to dismiss Appellant's appeal as untimely. We conclude the appeal was timely filed.
1. Background
After the jury verdict was returned, Appellant waived time for sentencing until resolution of a separate matter. In March 2015, he entered a plea of no contest in the other matter for a maximum sentence of one year and, as part of the plea agreement, he was promised a maximum eight-year sentence in this case. Consistent with the plea agreement, Appellant was sentenced on June 8, 2015, to total of nine years.
On July 28, 2015, Sanchez's then-retained attorney, Mark Kalina, filed a motion to recall the sentence in this case pursuant to Penal Code section 1170, subdivision (d)(1). The motion was based on a letter by Olstad that requested leniency for Appellant. At an August 5 hearing on the motion, the court took the matter under submission. Kalina said, "[T]he only concern I have is that the 60-day appeal period from sentencing on June 8th would run by about August 6th." The court said, "Tomorrow? Well, I'll keep that in mind."
On August 6, 2015, Appellant filed a pro se notice of appeal under the case number for this matter, provided his prison address, and personally signed the notice. However, he did not fill in sections of the form identifying the date of the judgment, the nature of the appeal, or whether he wanted appointment of appellate counsel. The notice was stamped "Filed" on August 6 by the clerk of the court. On August 12, the clerk filed a "Clerk's Notice re: Improper Filing of Notice of Appeal," which stated: "Defendant, having filed a Notice of Appeal - Felony in the above entitled matter on August 6, 2015, is hereby noticed that the filing was improper and cannot proceed as filed for the following reason(s): [¶] . . . Document incomplete: sections 1, 2, 3, and 4 not completed; second page is missing." A copy of this notice was served on Appellant.
On September 10, 2015, Kalina filed an amended "in pro per" notice of appeal, again only under the case number for the instant case, and signed it on Appellant's behalf. Sections 1-4 on the form were completed as follows: "08-05-2015" was the date of the order or judgment appealed from; the appeal was not "after entry of a plea of guilty or no contest" but was "after a jury or court trial" and "Other: No decision by court on defendant's P.C. Sec. 1170(d)(1) request"; and Appellant requested appointment of appellate counsel, stating he was not represented by appointed counsel in the trial court. This notice of appeal was stamped "Filed" by the clerk of the court on September 10, but a handwritten notation " 'Premature' " appears in the file stamp box.
On September 14, 2015, the court filed an order denying Appellant's motion to recall the sentence. On September 18, Kalina filed and signed a second amended "in pro per" notice of appeal, again solely under the case number for this matter. The form noted the appeal was based upon "Court's denial of Defendant's P.C. § 1170 (d)(1) request (9/14/15)." This second amended notice was filed September 18.
2. Analysis
"Unless the notice [of appeal] is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal." (In re Jordan (1992) 4 Cal.4th 116, 121.) California Rules of Court, rule 8.308(a), provides that a notice of appeal in a criminal case "must be filed within 60 days after the rendition of the judgment or the making of the order being appealed from." Judgment is rendered "when the trial court orally pronounces sentence." (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.)
Appellant's August 6, 2015 notice of appeal was filed within 60 days of oral pronouncement of his sentence on June 8. The People argue, however, that "as the clerk of the superior court informed appellant, the attempt was ineffective. It did not identify the judgment or order appellant intended to appeal . . . [and] it was not reasonably clear what appellant intended to appeal." The clerk of the court did not declare the notice "ineffective" or refuse to file it. Instead, the court informed Appellant the notice was "improper" because it was incomplete. Appellant responded by filing amended notices of appeal providing the missing information.
Notices of appeal "must be liberally construed." (California Rules of Court, Rule 8.304(a)(4).) Although rule 8.304(a)(4) provides that "the notice is sufficient if it identifies the particular judgment or order being appealed," it does not necessarily follow that a notice of appeal is insufficient if it does not expressly identify the particular judgment or order being appealed. An appeal from an unappealable order denying a motion for new trial should be construed as an appeal from the underlying judgment—even if the notice of appeal does not identify the judgment as a subject of the appeal—"when it is reasonably clear the appellant intended to appeal from the judgment and the respondent would not be misled or prejudiced." (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22, fn. omitted; see Vibert v. Berger (1966) 64 Cal.2d 65, 67-68 [construing notice of appeal from order sustaining demurrer as appeal from judgment].) The Walker court explained that the appellate court's jurisdiction is based on the existence of an appealable judgment or order as to which the notice of appeal is timely, not express identification of an appealable judgment or order in the notice of appeal. (Walker, at p. 21.) Under the rule of liberal construction, " 'the notice can be interpreted to apply to an existing appealable order or judgment, if no prejudice would accrue to the respondent . . . [and] it is reasonably clear what appellant was trying to appeal from . . . ." ' " (Id. at p. 20.)
In our view, a prisoner's pro se notice of appeal that fails to identify the judgment or order appealed from, but identifies the case number associated with the matter resulting in the conviction can be reasonably construed as being taken from the judgment in that case. That is, Appellant's August 6, 2015 notice of appeal is reasonably construed as an appeal from the judgment in this case. His amended notices of appeal further reasonably communicated that he intended to appeal from the judgment in this case as well as the judgment in the other matter and the order denying the motion to recall the sentence. The first amended notice erroneously listed August 5, 2015 as the date of the judgment or order appealed from, but stated that the appeal followed a jury trial as well as other proceedings. The second amended notice of appeal listed September 14 as the date of the judgment or order appealed from (the date of the order denying the motion to recall the sentence in this case), but also stated the appeal followed a jury trial as well as other proceedings. It is immaterial that Appellant's appellate briefs abandoned any challenge to the judgment in the other matter or the order denying his motion to recall. Significantly, the People cite no evidence they were prejudiced by any lack of clarity in the notices of appeal. (Walker v. Los Angeles County Metropolitan Transportation Authority, supra, 35 Cal.4th at p. 22.) Therefore, we decline to dismiss the appeal and address Appellant's arguments on the merits. B. Gang Expert Testimony
Appellant argues Kendl's gang expert testimony violated rules announced in Sanchez, supra, 63 Cal.4th 665, which was decided while this case was pending on appeal. The People argue Appellant's confrontation clause arguments under Sanchez are forfeited and his Evidence Code arguments under Sanchez are either meritless or harmless. We agree with the People.
1. Background
Kendl testified that he had 14 years of law enforcement experience, including six years in Fort Bragg investigating gang activity. He also attended training on gang recognition, trends, and operations; regularly encountered gang members in his patrol work, with hundreds of contacts; and had been qualified as a gang expert at about 10 criminal trials. He testified that two gangs were particularly active in Fort Bragg, the Norteños and the CVC (Crazy Vatos Controlas) Sureños. The relative dominance of Norteños and Sureños in Fort Bragg "depends on who has the strength and the numbers at the time. We've seen it come in waves . . . ." He testified the CVC Sureños had about 20 members in Fort Bragg. Norteños were associated with the number 14 and the color red, and the Sureños with the number 13 and the color blue, Norteños used hand signs for the numbers one and four. CVC members used hand signs for the numbers one and three, as well as hand signs that spelled out "CVC."
Kendl's qualifications were not challenged by the defense.
Kendl opined that CVC Sureños was a criminal street gang whose primary activities included assaults with deadly weapons, vandalism, and theft crimes. Eight packets of certified criminal convictions for these offenses from 2005-2011 were presented to the jury, and Kendl testified that each of the seven defendants convicted in those cases was a CVC member and provided his gang moniker. He further testified that he had seen photographs of Appellant with at least four of the defendants. Kendl testified that he was "very" familiar with Appellant from "many contacts, conversations throughout my career at Fort Bragg P.D." He said his opinion that Appellant was a Sureño CVC member was based on "[t]he people he's hung out with, associated with, [and] the fact he walks around proudly wearing blue. Sometimes you can see him with a [blue] rag draped over his arm walking around. [Also, h]e's got the number 13 tattooed on the back of his head, as well as CVC on the back of his neck." Kendl testified that Appellant used the gang moniker, "Silent," and his brother Jorge, also a CVC Sureño, used "Pelon."
2. Legal Standards
In Sanchez, the Supreme Court changed state law hearsay rules regarding the basis of an expert witness's opinion. (Sanchez, supra, 63 Cal.4th at pp. 678-679, 686, fn. 13.) "When an expert relies on hearsay to provide case-specific facts, considers them as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth." (Id. at p. 682.) Therefore, in explaining the basis for their opinions, experts cannot "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." (Id. at p. 686.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.)
Sanchez applies retroactively to criminal cases that were on appeal at the time it was decided. (See People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508 [so holding in a Pen. Code, § 1026.5 civil commitment case]; Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1284, fn. 7 [noting that Jeffrey G. applied criminal rules of retroactivity].)
The Sanchez court also held that, under the confrontation clause as interpreted in Crawford v. Washington (2004) 541 U.S. 36, "[i]f the case is one in which a prosecution expert seeks to relate testimonial hearsay [as the basis for his or her opinion], 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." (Sanchez, supra, 63 Cal.4th at p. 686.)
3. Forfeiture
The People argue Appellant forfeited his confrontation clause claims by failing to raise them in the trial court, even though Sanchez had not yet been decided. We agree.
Prior to Appellant's trial, a majority of United States and California Supreme Court justices appeared to agree that out-of-court statements admitted as the basis of an expert's opinion were admitted for the truth of the facts asserted in those statements—thus, for confrontation clause purposes, the Crawford rule would apply to such testimony. (People v. Mercado (2013) 216 Cal.App.4th 67, 89 & fn. 6; see Williams v. Illinois (2012) 567 U.S. 50; People v. Dungo (2012) 55 Cal.4th 608; see also Sanchez, supra, 64 Cal.4th at pp. 681-683.) Appellant's trial counsel, therefore, could have raised a confrontation clause objection to any testimonial hearsay offered as a basis for Kendl's expert opinions at Appellant's trial, even though the trial predated Sanchez. Counsel's failure to do so resulted in a forfeiture of Appellant's confrontation clause claim. (See People v. Perez (2017) 16 Cal.App.5th 636, 638 [pre-Sanchez confrontation clause objection forfeited]; People v. Ochoa, supra, 7 Cal.App.5th at p. 584 [implying confrontation clause objection forfeited because defendant failed to develop trial record as to whether hearsay statements were testimonial]; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 415 [following Ochoa's approach]; People v. Hill (2011) 191 Cal.App.4th 1104, 1128-1131 [before Sanchez decision, critiquing pre-Sanchez law on confrontation clause challenges to facts related as the basis of expert testimony].)
Appellant does not argue his counsel was ineffective for failing to raise a confrontation clause objection. The People wisely do not argue that Appellant's Evidence Code claims are forfeited. (See People v. Jeffrey G., supra, 13 Cal.App.5th at p. 507 & fn. 4.)
As discussed post, even if Appellant's confrontation clause claim was not forfeited, we would conclude the claim is meritless as no impermissible testimonial hearsay was presented to the jury.
4. Analysis
Appellant argues reversal is required under the Evidence Code holding of Sanchez, supra, 63 Cal.4th 665, because Kendl related case-specific facts to the jury as the foundation for his opinions that Appellant was a CVC Sureño gang member, CVC Sureño was a criminal street gang, and Appellant committed the assault on Olstad for the benefit of that gang. He argues the record does not demonstrate those facts were within Kendl's personal knowledge or were proved by independent competent evidence, and the errors were prejudicial. We conclude there was no reversible error.
Kendl's opinion that the CVC Sureño gang was a criminal street gang was largely based on his review of eight certified court records of criminal convictions of seven individuals other than Appellant whom Kendl identified as CVC Sureño gang members. Appellant does not challenge admissibility of those court records. However, the records themselves did not identify the seven individuals as CVC Sureño members; Kendl testified he was familiar with each of them and identified them as CVC Sureño members, also providing their gang monikers. Kendl did not identify a basis for this testimony other than his general testimony about his expert background, and Appellant insists the testimony must necessarily have been based on hearsay.
In making this argument, Appellant effectively acknowledges the record does not affirmatively support his speculation, and ignores the fact that " ' "[a]ll intendments and presumptions are indulged to support [a judgment] on matters as to which the record is silent, and error must be affirmatively shown." ' " (People v. Giordano (2007) 42 Cal.4th 644, 666.) Appellant also appears to misapprehend the scope of Sanchez. "Gang experts, like all others, can rely on background information accepted in their field of expertise under the traditional latitude given by the Evidence Code. They can rely on information within their personal knowledge, and they can give an opinion based on a hypothetical including case-specific facts that are properly proven." (Sanchez, supra, 63 Cal.4th at p. 685.) An "expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. . . . [¶] 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." (Id. at pp. 685-686.) Kendl did not present any case-specific hearsay facts to the jury in support of his opinion that the convicted individuals were CVC Sureño members, and there was no Sanchez error.
Kendl's opinion that Appellant was a CVC Sureño gang member was based on "the people he's hung out with, associated with, [and] the fact he walks around proudly wearing blue. Sometimes you can see him with a [blue] rag draped over his arm walking around. [Also, h]e's got the number 13 tattooed on the back of his head, as well as CVC on the back of his neck." The specific statements that Appellant walked around wearing blue or with a blue rag draped over his arm were expressly based on Kendl's personal observations and his many contacts with Appellant. While it is almost certainly true that Kendl's gang knowledge may also have been based, in part, on hearsay, e.g., contacts Appellant had with other police officers who then related the information to Kendl, he recited no such hearsay to the jury, and he could, in any event, still rely on hearsay sources, consistent with Sanchez, as a basis for any of his opinions. The description of Appellant's tattoos was also apparently based on Kendl's personal knowledge, but was permissible regardless because it was "independently proven by competent evidence" (Sanchez, supra, 63 Cal.4th at p. 686)—Mason's testimony and a photograph admitted into evidence. Moreover, any error in admitting this evidence would be harmless in light of the substantial direct trial evidence of Appellant's gang membership. (Conservatorship of K.W., supra, 13 Cal.App.5th at p. 1286 [Evidence Code error under Sanchez is subject to harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836].) Gilchrist and Mason testified they knew Appellant was a Sureño from their own prior law enforcement contacts, and Olstad testified he personally knew Appellant was a CVC Sureño member. There was additional percipient witness testimony that at the time of the assault Appellant's hair was cropped short to expose very large gang tattoos, conspicuously self-identifying his allegiance to CVC, he was wearing an oversize blue shirt and blue bandanna, and he made what appeared to be gang hand signals toward a gang rival. Any error was clearly harmless.
We reject Appellant's characterization of Gilchrist's and Mason's testimony as "opinions" that "relied on" Kendl's testimony for their underlying facts. Neither officer was offered or qualified as an expert witness and the clear implication of their testimony was that they were relying on their own knowledge of prior law enforcement contacts, not Kendl's knowledge of such contacts.
Appellant complains that Kendl testified that Appellant appeared in photographs with at least four of the convicted CVC Sureño members. He correctly notes there was no independent evidence of these facts. He argues the photographs' "existence or validity [was not] supported by any evidentiary foundation whatsoever" and "[t]o the extent such photographs do exist and communicate what Kendl interpreted them to mean, that amounts to hearsay." Appellant cites only cases that discuss the authentication of photographs, not the hearsay nature of photographs. (See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 525; People v. Beckley (2010) 185 Cal.App.4th 509, 514 [citing Evid. Code, §§ 250, 1401, subd. (a)]; cf. People v. Goldsmith (2014) 59 Cal.4th 258, 262, 273-275 [distinguishing authentication and hearsay and holding photographs are not hearsay].) Even if the testimony concerning the photographs was inadmissible hearsay under Sanchez, any error was harmless. This evidence was merely cumulative because, as noted ante, ample evidence was in the record that Appellant was an active CVC Sureño member, a gang with only about 20 members, making it highly unlikely that Appellant would not know and associate with all other members.
Because we conclude any error is harmless, we need not address the People's invited error argument.
Appellant also complains Kendl provided the only testimony that Appellant's gang moniker was "Silent" and his brother's gang moniker was "Pelon." Appellant points to nothing in the record that establishes this testimony was hearsay, and again, any error would be harmless. Proof of the monikers was not necessary to the prosecution's case and there was no reasonable probability it inflamed the jury against Appellant in light of the other evidence of his gang membership, including the highly conspicuous gang tattoos on the back of Appellant's head and neck.
We reject all of Appellant's claims of error under Sanchez, supra, 63 Cal.4th 665. C. Prior Bad Acts Evidence and Prosecutorial Misconduct
Appellant argues the prosecutor committed misconduct by eliciting evidence the court had excluded in response to a motion in limine. The People argue the prosecutor did not violate any pretrial rulings and in any event Appellant forfeited his argument by failing to object during trial. We conclude there was no prosecutorial misconduct.
1. Background
Appellant moved in limine "for an Order prohibiting any reference . . . to defendant's 'rap sheet' or the contents thereof." In a supporting brief, he asked the court to exclude "all evidence as to defendant's prior contacts with law enforcement" as inadmissible under Evidence Code sections 1101, subdivisions (a) and (b), and 352. In oral argument on the motion, the prosecutor said she did not intend to elicit "any specific prior bad acts" in her case-in-chief, but "I do intend on eliciting from law enforcement the fact that they are familiar with [Appellant] . . . as a member of CVC, which is a [sub]set of the Sureño criminal street gang." Appellant responded by discussing two specific prior incidents in his record that he wanted excluded from evidence. First, in a police report on his arrest in this case, an officer wrote, "The last time officers responded to this residence, several of the residents stalled officers at the front door while [Appellant] attempted to conceal a handgun." The prosecutor confirmed she did not intend to elicit that specific information, and the court barred its use absent a further offer of proof. The prosecutor never elicited that evidence at trial. Second, Appellant cited a statement in a police report that he was on probation with gang terms and violated those terms by his manner of dress. The prosecutor argued this evidence was relevant to the gang allegation. The court ruled the gang expert could refer to that evidence as a basis for his expert opinion, but law enforcement officers could not otherwise testify to the prior conduct. No prosecution witnesses testified about the gang terms or the probation violation at trial.
Appellant argues the prosecutor violated the court's pretrial rulings by eliciting testimony from Gilchrist, Mason, and Kendl that they were familiar with Appellant from previous law enforcement contacts, and by eliciting Mason's testimony about the angry dog encountered during Appellant's arrest. However, Appellant did not object during trial when this evidence was introduced.
2. Forfeiture
Appellant argues any objection to the testimony would have been futile because the trial court had already admitted gang evidence of a type since ruled inadmissible under Sanchez, supra, 63 Cal.4th 665. We are not persuaded. We have already rejected the claims of Sanchez error. Appellant contends that the admission of the evidence was prejudicial even separate and apart from the Sanchez error. But he cites no authority that a defendant need not object to the admission of prejudicial evidence on available legal grounds simply because other similar evidence may have been admitted at trial. He cites People v. Hill (1998) 17 Cal.4th 800, where a defendant's failure to object to every incidence of prosecutorial misconduct was excused because the defendant "was subjected to a constant barrage of . . . unethical conduct" and "the trial court's failure to rein in [the prosecutor's] excesses . . . created a trial atmosphere so poisonous that [defense counsel] was thrust upon the horns of a dilemma," whether to object and incur the court's wrath and possibly prejudice the jury against his client or to remain silent. (Id. at pp. 820-821.) We find nothing comparable on this record.
Appellant also suggests he preserved his objection by litigating the motion in limine. (See People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648-649 [failure to object excused where objection had been repeatedly raised and rejected by trial court].) However, Appellant did not specifically object to the evidence he now complains of during the in limine proceedings, nor did he obtain clear rulings that would have rendered any later objections superfluous. Moreover, Appellant's theory is that the trial court had excluded the relevant evidence during the in limine proceedings and the prosecutor therefore committed misconduct in eliciting the evidence. This theory begs the question why Appellant did not object during trial when the prosecutor allegedly violated the court's order.
Appellant finally argues that, if his trial counsel failed to raise a necessary objection at trial, he has a valid claim for ineffective assistance of counsel. (See People v. Ledesma (2006) 39 Cal.4th 641, 746.) Trial counsel's failure to object was deficient performance, however, only if the objection would have been successful. Because we conclude the prosecutor did not commit misconduct, Appellant cannot prevail on this ineffective assistance claim.
3. Analysis
"Under federal constitutional standards, a prosecutor's ' " 'intemperate behavior' " ' constitutes misconduct if it is so ' " ' "egregious" ' " ' as to render the trial 'fundamentally unfair' under due process principles. [Citation.] Under state law, a prosecutor commits misconduct by engaging in deceptive or reprehensible methods of persuasion." (People v. Caldwell (2013) 212 Cal.App.4th 1262, 1269.) Eliciting evidence that has been ruled inadmissible may amount to prosecutorial misconduct. (People v. Parsons (1984) 156 Cal.App.3d 1165, 1170-1171.)
No prosecutorial misconduct occurred here because none of the challenged testimony had been excluded by the trial court. The prosecutor specifically stated during argument on the motion in limine that she would elicit testimony that the officers were familiar with Appellant from prior law enforcement contacts. Defense counsel did not object, but simply argued that two specific prior contacts be excluded, and the court in effect excluded those specific incidents. Appellant did not request exclusion of the angry dog evidence before trial (or object at trial).
Appellant argues the court's pretrial order should be liberally construed to exclude the contested evidence, but he provides no factual or legal basis for doing so. He claims that, after discussion of the arrest report during the in limine hearing, the prosecutor said "she intended to refrain from eliciting . . . evidence of the hostile dog" and the court "order[ed] that such evidence concerning prior contacts with police was excluded absent further ruling." In fact, a plain reading of the transcript shows that at the hearing the prosecutor discussed and the court excluded only the statement about Appellant's apparent concealment of a handgun. Trial counsel's failure to raise a prosecutorial misconduct objection when the prosecutor elicited the "angry dog" evidence suggests that his understanding of the court's order differs from that of appellate counsel. Appellant does not argue on appeal that trial counsel provided deficient performance by failing to object to the dog evidence on other grounds.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.