Opinion
F071067
02-26-2018
THE PEOPLE, Plaintiff and Respondent, v. SMITH YANG, et al., Defendants and Appellants.
John J. Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant Smith Yang. Linda Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant Blong Yang. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. VCF266590C; VCF266590D)
OPINION
APPEAL from judgments of the Superior Court of Tulare County. Valeriano Saucedo, Judge. John J. Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant Smith Yang. Linda Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant Blong Yang. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Smith Yang and Blong Yang of committing assault with a deadly weapon and active participation in a criminal street gang. The verdicts included gang-related enhancement findings. Smith Yang now challenges the admissibility of certain trial evidence in light of the holdings in People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde) and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which were decided while this appeal was pending. These claims have merit, and prejudicial error has been shown in relation to the verdicts for the substantive gang offense and gang enhancements. We find no prejudice as to the convictions for assault with a deadly weapon.
Blong Yang joins in Smith's claims (appellants are hereafter referred to by their first names) and additionally contends there was insufficient evidence of his active participation in a criminal street gang. Blong's arguments speak to the weight of the evidence, rather than its legal sufficiency, and are unpersuasive. We affirm in part, reverse in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants were among six defendants charged in connection with an attack on a grocery store clerk in Visalia. The six defendants were of Asian descent, and most were related to each other. At least four of the defendants resided in the same home, including brothers Smith and Blong.
Three of the defendants pleaded out of the case. Smith and Blong were jointly tried with co-defendant Sou Saeteurn (not a party to this appeal) on two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts 1 & 2) and one count of active participation in a criminal street gang (§ 186.22, subd. (a); count 3). Counts 1 and 2 included enhancement allegations of gang-related conduct (§ 186.22, subd. (b)(1)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)). It was further alleged that Blong had suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term (§ 667.5, subd. (b)).
Unless otherwise specified, all statutory references are to the Penal Code.
Prosecution Case
The victim, a young man apparently of Hispanic ethnicity, testified to having been attacked at work by a group of Asian males. The perpetrators confronted him as he was assisting a patron in the parking lot of a grocery store. He recalled hearing someone use the term "Buster," which allegedly meant nothing to him at the time. Next, he was struck from behind with a wooden cane and the group converged on him, throwing punches. The victim did not know his attackers, and he denied having said or done anything to provoke the assault. Count 1 was based on this initial series of events.
The attack in the parking lot ended when the victim broke free and ran into the store. Several of the assailants followed him inside and surrounded him. The victim was hit with a few more punches before falling to the ground, at which point the Asian men kicked and stomped his head and upper body. He was also struck with some type of stick or club (presumably a piece of the now-broken cane). The perpetrators fled before the police arrived, leaving the victim with injuries that included a fractured nose and bruises on his head, arms, and back. Count 2 was based on the events inside of the store. The entire incident was captured on video by surveillance cameras, and the footage was shown to the jury at trial.
The parties did not designate the video evidence, People's Exhibit No. 6, for inclusion in the record on appeal. That exhibit was transmitted at our request. (Cal. Rules of Court, rules 8.224(d) [transmission of exhibits] and 8.320(e) [exhibits admitted in evidence are deemed part of the record in a criminal appeal].) The same is true of several photographic exhibits (People's Exhibit Nos. 25-34) and two records of conviction that were relied upon to establish the predicate offenses element of the gang charges (People's Exhibit Nos. 7 & 8).
Detective Daniel Ford of the Visalia Police Department was asked to assist in the investigation because of his expertise with regard to "Asian gangs within the City of Visalia and in the area [extending] as far as Merced." Upon reviewing the surveillance videos, he recognized Smith, Blong, and co-defendant Saeteurn as being among those who had attacked the victim. Detective Ford identified each of them again at trial, explaining to the jury their respective roles in the assault, and testified that he was "one hundred percent sure" of his identifications.
During custodial interviews, Smith and Saeteurn admitted to being present during the incident and alleged that the victim had provoked the attack by calling one of their friends a "gook." Saeteurn further admitted to kicking the victim, but denied having any gang ties. Smith admitted to participating in the assault inside of the store and also acknowledged his membership in a criminal street gang called the "Asian Bloods," though he subsequently recanted the latter admission.
Detective Ford identified Blong as being a particular individual in the surveillance videos who had been wearing a white tank top undershirt, long khaki shorts, calf-high white socks, and a pair of slippers. At the time of his arrest, two days after the subject incident, Blong was found lying on a couch next to a pair of slippers that Detective Ford believed were the same ones he had worn during the assault. A search of the home also yielded a pair of khaki shorts, which purportedly matched the length and color of those seen in the videos.
Blong had previously admitted to Detective Ford that he was a gang member. The two of them were well-acquainted; Blong himself testified that he had been in contact with the detective "several times, [approximately] seven, eight, nine times ...," adding, "He comes to my house a lot." During a custodial interview in this case, Blong denied personal involvement in the crimes but revealed knowledge of the underlying facts. He insinuated that the victim had been targeted because of an actual or perceived connection to a Hispanic gang known as the Nortenos.
The victim denied being a gang member or having any friends or relatives who were gang members.
Testifying as an expert witness, Detective Ford alleged the existence of a criminal street gang called the Asian Bloods. He claimed that there were approximately 50 members of the Asian Bloods in Visalia during the relevant time period, and that the gang's primary activities included "[a]ssaults with a deadly weapon, attempted murder, shootings, ... vehicle burglaries, [and] a lot of theft-related activity." To establish the "pattern of criminal activity" required for the gang participation charge and related enhancements (§ 186.22, subd. (f); see further discussion, post), Detective Ford related information about two prior offenses that had been committed by individuals not involved in the current case.
According to the expert, members of the Asian Bloods strongly identify with the color red and also use hand gestures to signify their gang affiliation. Although they had once been aligned with the Nortenos, or at least on good terms with them, Asian Bloods in the Visalia area viewed Nortenos as their enemies at the time of the charged offenses. Detective Ford further explained that in gang culture, the word "Buster" is a derogatory term used by rivals of the Nortenos to convey disrespect. Similarly, and particularly in the Visalia area, the racial slur "gook" is used by Nortenos as "the most common way to refer to an Asian gang member."
Detective Ford opined that Smith and Blong were active members of the Asian Bloods, and that the charged offenses were committed in association with, and for the benefit of, a criminal street gang. His opinions were based in part on their self-admissions of gang membership. As mentioned, Smith and Blong had allegedly confirmed their membership status to Detective Ford during prior conversations with him. In addition, they had made incriminating disclosures to jail personnel during intake interviews following various arrests. As documented on inmate classification questionnaires that were received into evidence, Smith had made such admissions during three separate stints in the county jail, including his arrest in the current case. He had twice acknowledged an association with the Asian Bloods, and in all three instances had written "Northerners" in response to a question regarding his "known enemies." Blong, who had been jailed at least four different times, had always denied being associated with any gangs but sometimes wrote "North" or "Buster" in response to the question about his known enemies.
Detective Ford's opinions were also based on evidence of Smith's and Blong's history of associating with other alleged gang members, wearing "gang clothing" and/or displaying gang hand signs, and their alleged involvement in gang-related crime (i.e., the currently charged offenses). It was noted that at least three of the victim's attackers had worn red clothing—one of those individuals (co-defendant Saeteurn) had also worn a red hat, and the cane that was used as a weapon had been painted red. Moreover, some of the co-defendants who pleaded out of the case, including appellants' brother, Meng Yang, had previously admitted, both to Detective Ford and on jail classification questionnaires, that they were members or associates of the Asian Bloods.
To further establish the defendants' gang ties and their identities in the surveillance videos, the jury was shown photographs taken of them on the day of their arrest. Neither Smith nor Blong wore red during the subject incident, but both had been photographed on prior occasions either wearing red (Smith) or flashing gang signs (Blong). The prosecution introduced photos obtained from Blong's Myspace page, which included a profile picture of him contorting his fingers to form what Detective Ford alleged was a gang sign. Eight additional photos from the same social media page showed Smith and Blong congregating with a group of Asian males, many of whom were wearing red jackets, red shirts, and red hats, and flashing alleged gang signs with their hands and fingers. Several of those people wore hats with the "B" logo of the Boston Red Sox, which Detective Ford opined was not indicative of sports fandom but rather signified their affiliation with the Asian Bloods. In six of the photos, Smith was wearing a red Cincinnati Reds jacket and matching red hat, which Detective Ford likewise opined was because his gang identifies with the color red and not because he is a fan of a baseball team from Ohio. Blong appeared in several of the group photos, and, though not in red, he repeatedly displayed the same alleged gang sign (i.e., the one seen in his profile picture) and wore oversized khaki/light grey shorts that extended down over long white socks—the same distinctive style of dress as was exhibited by one of the victim's attackers.
Defense Case
Each defendant testified on his own behalf. Co-defendant Saeteurn alleged that he was intoxicated on the night in question and could only recall two things: (1) the victim called someone a "gook" and (2) he reacted by assaulting him. Saeteurn claimed to have amnesia with regard to every other aspect of the incident, to the point of not even knowing if he had acted alone or with other people. Nevertheless, he confirmed that Detective Ford had accurately identified him from the surveillance videos.
Smith admitted to being present when the incident occurred but denied participating in the assault. He claimed Detective Ford had mistakenly identified him and Blong from the surveillance videos, and testified that Blong was not at the grocery store that evening. On cross-examination, when questioned about the photographs of Blong from Blong's Myspace page, he told the prosecutor, "I don't recall that being my brother." Smith confirmed that some of the photos were of him, and he admitted having "family and friends who are known as - or classified as Asian Blood," but denied that he was a gang member. As for the alleged display of gang signs by the people with whom he had posed for pictures, he said, "I wasn't aware of them, but I can't speak for those individuals who are throwing up signs."
Blong denied being a gang member but admitted that he and some of his relatives "associate" with gangs. He denied any involvement in the charged offenses and testified that none of the photographs from his Myspace page were actually of him. Blong's credibility was impeached with evidence of multiple prior felony convictions: first degree residential burglary (§§ 459, 460, subd. (a)), possession of a firearm by a convicted felon (former § 12021, subd. (a)), receiving stolen property (x 2) (§ 496, subd. (a)), and possession of marijuana for sale (Health & Saf. Code, former § 11359).
Smith and Blong proffered testimony from two expert witnesses to refute the gang allegations. These experts essentially opined that their respective clients were not gang members and that the subject incident did not involve any gang-related crimes.
Verdicts and Sentencing
Appellants were convicted as charged and all enhancement allegations were found to be true.
Smith was sentenced to an aggregate prison term of seven years, calculated as follows: the middle term of three years for count 1, plus a consecutive three-year term for the great bodily injury enhancement and a consecutive one-year term for count 2 (one third of the middle term). Punishment for both the great bodily injury enhancement on count 2 and the count 3 conviction of active participation in a criminal street gang was stayed pursuant to section 654. Punishment for the gang enhancement findings on counts 1 and 2 was stricken pursuant to section 186.22, subdivision (g).
The parties' briefs erroneously state that Smith's gang enhancements were stayed. The reporter's transcript and the second amended abstract of judgment (dated 2/26/16) clearly indicate that punishment for the gang enhancement findings, which would have otherwise added a consecutive 10-year term of imprisonment (§ 186.22, subd. (b)(1)(C)), was stricken pursuant to section 186.22, subdivision (g) based on the trial court's finding that the interests of justice would best be served by such a disposition. We note that striking the punishment for a gang enhancement pursuant to section 186.22, subdivision (g), as occurred here, is not the same as striking the enhancement itself, which can only be done pursuant to section 1385, subdivision (a). (People v. Fuentes (2016) 1 Cal.5th 218, 222, 224-225.)
Blong was sentenced to an aggregate prison term of 23 years, calculated as follows: the upper term of four years for committing assault with a deadly weapon as alleged in count 1, doubled to eight years because of the prior strike, plus a consecutive 10-year term for the gang enhancement (§ 186.22, sub. (b)(1)(C)). A concurrent sentence was imposed for count 2. The trial court stayed punishment for the great bodily injury enhancements and the count 3 conviction of the substantive gang offense. Blong's sentence was further enhanced by a consecutive five-year term for the prior serious felony conviction.
DISCUSSION
Sufficiency of the Gang Evidence
Standard of Review
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Edwards (2013) 57 Cal.4th 658, 715.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The jury's findings on enhancement allegations are reviewed under the same standard. (See People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Law and Analysis
Section 186.22 proscribes the substantive offense of active participation in a criminal street gang, as set forth in subdivision (a), and includes enhancement provisions, which are found in subdivision (b). (Elizalde, supra, 61 Cal.4th at pp. 538-539.) The elements of the substantive offense are: "First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).) The enhancement provisions apply when an offense is 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." (§ 186.22, subd. (b).)
Blong ostensibly challenges the sufficiency of the evidence supporting his gang participation conviction and the section 186.22, subdivision (b) enhancement findings, but his arguments are of the kind suited for closing summation to a jury. He complains that the criteria upon which Detective Ford relied was "overbroad" and sometimes contradictory, e.g., he placed great weight on jail classification questionnaires wherein Blong had listed Nortenos as being among his enemies but ignored contemporaneous denials of having any gang associations. Blong further emphasizes that most of the alleged gang members with whom he was known to associate were immediate family members or close relatives. These points are not helpful to his claim. "Even where, as here, the evidence of guilt is largely circumstantial, our task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might reasonably be reconciled with the defendant's innocence." (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
Turning again to the applicable law, active participation in a criminal street gang can be proven by evidence of a defendant's self-admission of gang membership, contacts with a particular gang and/or its members, gang-related contacts with police, and being in the company of a gang member while committing a charged offense. (See People v. Castenada (2000) 23 Cal.4th 743, 752-753 (Castenada); People v. Williams (2009) 170 Cal.App.4th 587, 626; People v. Garcia (2007) 153 Cal.App.4th 1499, 1511.) A defendant's knowledge that the gang's members engage in a pattern of criminal activity is often inferable from the same evidence of his or her active participation in the gang. (People v. Carr (2010) 190 Cal.App.4th 475, 489 and fn. 14 (Carr); see Castenada, supra, 23 Cal.4th. at p. 752 ["every person incurring criminal liability under section 186.22(a) has aided and abetted a separate felony offense committed by gang members."].) The third element, which requires willful promotion, furtherance, or assistance in the commission of a felony by gang members, can be established by showing either the defendant's direct perpetration of the felony or actions that constitute aiding and abetting. (Rodriguez, supra, 55 Cal.4th at pp. 1132, 1135-1136; People v. Ngoun (2001) 88 Cal.App.4th 432, 435-437.)
"It is the province of the trier of fact to decide whether an inference should be drawn and the weight to be accorded the inference." (People v. Massie (2006) 142 Cal.App.4th 365, 374.) As discussed, there was evidence that Blong had admitted to Detective Ford that he was a gang member, as had some of his co-defendants. Having viewed the photographs from his Myspace page, we have no trouble concluding that the jury, aided by the testimony of Detective Ford, could have reasonably believed those images showed Blong flashing gang signs and associating with other gang members. There was ample proof that Blong and his co-defendants engaged in felonious conduct on the date in question by assaulting the victim. This evidence, taken as a whole and viewed in the light most favorable to the judgment, was sufficient to prove active participation in a criminal street gang. (Carr, supra, 190 Cal.App.4th at p. 489 [jury may rely on circumstantial evidence and expert testimony "to make findings concerning a defendant's active participation in a gang"]; People v. Martinez (2008) 158 Cal.App.4th 1324, 1331 [sufficient evidence of active participation found where gang expert relied, inter alia, on defendant's self-admission of gang membership and his commission of a charged felony with another gang member].) The same is true with regard to the gang enhancement findings. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [jurors can reasonably infer a crime was committed "in association" with a criminal street gang if defendant committed the offense with fellow gang members].)
Admissibility of the Gang Evidence
While this appeal was pending, the California Supreme Court issued its decisions in Elizalde, supra, and Sanchez, supra. These cases announced changes in the law with respect to the admissibility of incriminating statements made during jail intake interviews (Elizalde) and the use of hearsay in expert witness testimony (Sanchez). Smith's arguments on appeal rely on these opinions, and there is a preliminary question regarding the timeliness of his claims. "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237.) While the Attorney General maintains that any claims based on the holdings of Elizalde and/or Sanchez were forfeited by a failure to object below, it can hardly be argued that such objections would not have been futile given the state of the law at that time. It is thus appropriate to resolve the claims on the merits. (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508.) Sanchez
The Sanchez opinion holds that a gang expert cannot testify to case-specific facts asserted in hearsay statements unless such facts are within the expert's personal knowledge or independently supported by admissible evidence. A relatively small but significant portion of Detective Ford's testimony constituted inadmissible hearsay. For the reasons that follow, we conclude the admission of this evidence was prejudicial error.
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) The right of confrontation, as guaranteed by the Sixth Amendment to the federal Constitution and made applicable to the states through the Fourteenth Amendment, ensures the opportunity for cross-examination of adverse witnesses. (People v. Fletcher (1996) 13 Cal.4th 451, 455.) In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held that the confrontation clause bars the admission of out-of-court testimonial hearsay statements unless the declarant is unavailable and the defendant had a previous opportunity for cross-examination. (Id. at p. 59.)
Prior to Sanchez, expert witnesses could testify about out-of-court statements upon which they had relied in forming their opinions even if the statements were otherwise inadmissible under the hearsay rule. Case law held that such evidence was not offered for its truth, but only to identify the foundational basis for the expert's testimony. (E.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620; People v. Miller (2014) 231 Cal.App.4th 1301, 1310.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements in an expert witness's "basis testimony" to be compliant with the hearsay rule and the requirements of Crawford. (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
The Sanchez opinion holds that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which in turn implicates the hearsay rule and the Sixth Amendment right of confrontation. (63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay.... If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.)
"The hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise." (Sanchez, supra, 63 Cal.4th at p. 676.) However, the hearsay rule does apply to testimony regarding "case-specific facts," meaning "those relating to the particular events and participants alleged to have been involved in the case being tried." (Ibid.) Unless subject to a statutory exception, such hearsay is inadmissible under state law. (Id. at pp. 674, 698; Evid. Code, § 1200, subd. (b).)
Federal constitutional issues arise if case-specific facts are presented in the form of testimonial hearsay. (Sanchez, supra, 63 Cal.4th at pp. 680-681, 685.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Id. at p. 689.) Information contained in a police report is generally construed as testimonial hearsay because police reports "relate hearsay information gathered during an official investigation of a completed crime." (Id. at p. 694.)
The erroneous admission of testimonial hearsay is reviewed for prejudice under the standard articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). (See Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The People must show, beyond a reasonable doubt, that the error did not contribute to the jury's verdict. (Id. at p. 698.) The erroneous admission of non-testimonial hearsay is a state law error, which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Crawford, supra, 541 U.S. at p. 68; People v. Duarte (2000) 24 Cal.4th 603, 618-619.) The Watson test asks if it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at p. 836.)
Detective Ford related certain information to the jury that he had learned from, and believed to be true based upon, his review of police reports, field identification cards, and conversations with other police officers. We need only focus on his foundational testimony regarding the existence of a specific criminal street gang, i.e., the Asian Bloods. To better explain why the hearsay testimony was prejudicial, we note that a criminal street gang is defined as "any ongoing organization, association, or group of three or more persons ... whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) "A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.' " (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The list of qualifying offenses is found in section 186.22, subdivision (e)(1)-(33).
To satisfy the predicate offenses requirement, the prosecutor below introduced People's Exhibit No. 7 (Exhibit 7) and No. 8 (Exhibit 8). Exhibit 8 is a certified record of conviction for someone named Bounme Yang, who was adjudicated of resisting an executive officer (§ 69) and having a concealed firearm inside of a vehicle (former § 12025, subd. (a)(1)). The latter conviction was a qualifying offense under the gang statute. (§ 186.22, subd. (e)(32).) Exhibit 7 is a certified record of conviction for Jesse Saelee, who pleaded guilty to the qualifying offense of attempted murder. (§§ 187, 664; § 186.22, subd. (e)(3).) Detective Ford testified that both men were members of the Asian Bloods when they committed their crimes.
Detective Ford explained that his opinion regarding Bounme Yang's status as a gang member was based on "research into his gang history, based on my speaking with [the arresting officer in the case], based on the evidence that was located on the scene, including gang clothing, gang indicia, [and] my knowledge of the individuals that were with him when [the offense was committed]." As for Jesse Saelee, Detective Ford's information and belief regarding Saelee's alleged gang membership was based on his review of police reports, "the workup that was done by [another police officer], and based on talking with the detectives."
The record is somewhat ambiguous in terms of whether, and to what extent, Detective Ford had personal knowledge of Bounme Yang's purported membership in the Asian Bloods. He was not involved in Yang's case as an investigating officer, but was apparently enlisted as an expert witness during the prosecution phase. However, with regard to Jesse Saelee, Detective Ford had merely been on patrol at the time of the offense and testified that he "might have" responded to the scene to provide assistance to the arresting officers. By his own admission, Detective Ford's opinion regarding Saelee's gang status was derived entirely from hearsay sources, i.e., police reports and conversations with other law enforcement officers. Since there was no independent evidence of Saelee being a member of the Asian Bloods, the expert's testimony on that point was inadmissible.
In summary, the crimes reflected in Exhibits 7 and 8 were used to establish the "pattern of criminal activity" element for count 3 and for the gang enhancements under counts 1 and 2. Without Detective Ford's inadmissible hearsay testimony, the jury had no basis upon which to conclude that at least two of those crimes had been committed by members of Asian Bloods, leaving a critical evidentiary gap in the People's theory of liability. (See People v. Vasquez (2016) 247 Cal.App.4th 909, 922 [" 'The existence of a criminal street gang is unquestionably an element of both the enhancement and the substantive offense.' "].) We thus find prejudice under both the Chapman and Watson standards. Regardless of whether or not the hearsay was "testimonial," it was, at a minimum, inadmissible under state law, and without it the prosecution's "pattern of criminal activity" evidence was lacking. Therefore, there is a reasonable probability that appellants would have achieved a more favorable result on the gang charges but for the erroneous admission of hearsay.
The People did not attempt to use the charged crime of assault with a deadly weapon as an additional predicate offense. (See § 186.22, subd. (e)(1).) It is settled that prosecutors can rely on evidence of a defendant's commission of a currently charged offense to satisfy the "pattern of criminal activity" requirement in section 186.22. (People v. Tran (2011) 51 Cal.4th 1040, 1046; People v. Loeun (1997) 17 Cal.4th 1, 10.) Here, however, the People's theory for the pattern of criminal activity requirement was strictly limited to the crimes documented in Exhibits 7 and 8. This self-imposed restriction was highlighted in closing argument and repeated in the jury instructions. The jury was instructed with a modified version of CALCRIM No. 1400, which stated, in pertinent part, "A pattern of criminal activity, as used here, means: [¶] 1. The commission of or conviction of any combination of two or more of the following crimes: Attempted Murder in violation of Penal Code section 664/187(a), or Having a Concealed Firearm in a Vehicle in violation of former Penal Code section 12025(a)(1); ...." Our prejudice analysis necessarily assumes the jury's determination of the predicate offenses element was exclusively based on the information contained in Exhibits 7 and 8, and Detective Ford's testimony regarding the same. (See People v. Garcia (2014) 224 Cal.App.4th 519, 525-526 [gang enhancement reversed where jury not instructed on the only viable legal theory supporting its verdict]; People v. Smith (1984) 155 Cal.App.3d 1103, 1145 ["It would deprive the defendant of his right to a jury trial if an appellate court could [affirm a conviction] on a theory not presented to the jury ... ."].) --------
Given our rejection of appellants' sufficiency of the evidence claim (Smith summarily joined in Blong's claim but offered no additional argument or analysis), the district attorney will have the option on remand to retry them on count 3 and on the section 186.22, subdivision (b) enhancement allegations for counts 1 and 2. (Lockhart v. Nelson (1988) 488 U.S. 33, 34 ["[W]here the evidence offered by the State and admitted by the trial court—whether erroneously or not—would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial."]; accord, People v. Story (2009) 45 Cal.4th 1282, 1296-1297.) Elizalde
The Elizalde case instructs that questions about gang affiliation posed to an arrestee while processing him or her into jail do not come within the so-called "booking exception" to the requirements of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). (Elizalde, supra, 61 Cal.4th at pp. 531-535.) While it is permissible for jail officials to ask questions about gang affiliation during the booking process, the answers to such questions are inadmissible in a criminal trial unless they were preceded by Miranda admonitions and a waiver of the right to remain silent. (Elizalde, supra, 61 Cal.4th at p. 541.) Appellants allege that the prosecution's reliance on jail classification questionnaires reflecting admissions by them and their co-defendants of gang membership and/or association was prohibited under Elizalde. Given our reversal of the gang-related verdicts due to Sanchez error, the claims of Elizalde error are moot.
Due Process Claim
Appellants contend that the erroneous admission of gang evidence as a result of Elizalde and/or Sanchez error violated their constitutional due process rights by depriving them of a fair trial, and that such error requires reversal of their convictions of assault with a deadly weapon. We are not persuaded.
"A person seeking to overturn a conviction on due process grounds bears a heavy burden to show the procedures used at trial were not simply violations of some rule, but are fundamentally unfair. [Citation.] Ordinarily, even erroneous admission of evidence does not offend due process unless it is so prejudicial as to render the proceeding fundamentally unfair." (People v. Esayian (2003) 112 Cal.App.4th 1031, 1042.) Appellants' "fundamental unfairness" argument vis-à-vis the convictions on counts 1 and 2 is not well developed, and they offer little more than citations to People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran).
In Albarran, a prosecutor introduced evidence of the defendant's membership in a gang to substantiate certain enhancement allegations but engaged in "overkill" by subjecting jurors to police testimony about the gang that "consumed the better part of an entire trial day." (Id. at p. 228 & fn. 10.) The testimony focused on the identities of other gang members, descriptions of unrelated criminal activity committed by other gang members, evidence of the gang's threats to kill police officers, and references to the Mexican Mafia—all of which was found on appeal to be "irrelevant to the underlying charges" and to have had "no legitimate purpose in [the] trial." (Id. at pp. 227-231.) The irrelevant gang evidence created "a real danger that the jury would improperly infer that whether or not [defendant] was involved in [the charged offenses], he had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished. Furthermore, [the] gang evidence was extremely and uniquely inflammatory, such that the prejudice arising from the jury's exposure to it could only have served to cloud their resolution of the issues." (Id. at p. 230, fns. omitted.)
It is true that "admission of evidence of a criminal defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged." (People v. Williams (1997) 16 Cal.4th 153, 193.) However, when evidence of gang activity or membership is important to the issues of motive and intent, it can be introduced despite its prejudicial nature. (People v. Martinez (2003) 113 Cal.App.4th 400, 413; see People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 ["Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related."].) "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913, italics added.)
Here, it was apparent even from the admissible evidence that this was a gang case. The victim testified that his attackers had called him a "Buster," and Blong indicated to Detective Ford during custodial interrogation that the victim was assaulted because of a perceived Norteno affiliation. All of the gang evidence was relevant, either to the issue of motive with respect to counts 1 and 2 or to proving the essential elements of count 3 and the gang enhancement allegations. Detective Ford permissibly testified to self-admissions of gang membership made to him by Smith, Blong, and others involved in the incident, and the jury saw properly admitted photographs of Smith and Blong wearing "gang clothing," flashing gang signs, and associating with other alleged gang members. Smith's and Blong's own trial testimony further confirmed their history of associating with gang members. The inadmissible gang evidence, viewed in light of these circumstances, cannot be characterized as "extremely and uniquely inflammatory." (Albarran, supra, 149 Cal.App.4th at p. 230.) This case does not present "one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the [defendants'] trial fundamentally unfair." (Id. at p. 231.)
We also reject the implied argument, apart from the due process claim, that the prejudice arising from Sanchez error and/or Elizalde error extended to the verdicts on counts 1 and 2. The implication is that hearing inadmissible evidence of appellants' gang ties, combined with the revelation that they had been jailed on prior occasions, tainted the jury's ability to objectively decide whether they were guilty or innocent of having assaulted the victim. First, the entire incident was documented on video. The jurors were thus well equipped to determine whether appellants were among those who could be seen committing the charged offenses. Second, Smith admitted, during a recorded custodial interview, to having participated in the assault that occurred inside of the store (i.e., the count 2 offense). Between the video evidence, his prior partial admission of guilt, and the admissible evidence of his gang connections, we perceive no likelihood that the verdict on count 1 (the initial attack outside of the store) would have been different but for Sanchez error and alleged Elizalde error.
As for Blong, the video evidence and admissible testimony of Detective Ford left little chance of a more favorable outcome on counts 1 and 2, even though Blong denied having been present when those crimes were committed. His gang ties were independently established by prior admissions to Detective Ford, the photos from his Myspace page, and his own trial testimony. While one could infer a propensity to commit crimes based on his numerous bookings into the county jail, such a conclusion was more powerfully compelled by the evidence of his prior felony convictions. It is therefore evident, beyond any reasonable doubt, that the erroneous admission of gang evidence did not affect the guilty verdicts on counts 1 and 2.
Miscellaneous Issues
Smith presents an additional claim that concerns the prosecution's cross-examination of appellants' gang experts on matters of law, namely the experts' familiarity with the provisions of section 186.22. He also alleges cumulative error. In both instances, prejudice is alleged only as to the count 3 conviction and the true findings on the gang enhancement allegations. Given our reversal of the substantive gang offense and section 186.22, subdivision (b) enhancements due to Sanchez error, both claims are moot. In any event, for the reasons stated above, we conclude that none of the errors alleged on appeal—whether considered individually or collectively—were prejudicial in relation to the convictions of assault with a deadly weapon and the jury's non-gang-related enhancement findings.
DISPOSITION
The judgments are affirmed in part and reversed in part, and the matter is remanded for further proceedings.
As to Smith Yang, the count 3 conviction for active participation in a criminal street gang is reversed, as are the true findings made pursuant to section 186.22, subdivision (b). The judgment against Smith Yang is affirmed in all other respects. On remand, the People may elect to retry him on the gang charges within the time period specified in Penal Code section 1382. If the People forgo the option of retrial, he shall be resentenced consistent with the disposition on appeal. In either event, the trial court shall prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.
As to Blong Yang, the count 3 conviction for active participation in a criminal street gang is reversed, as are the true findings made pursuant to section 186.22, subdivision (b). The judgment against Blong Yang is affirmed in all other respects. On remand, the People may elect to retry him on the gang charges within the time period specified in Penal Code section 1382. If the People forgo the option of retrial, he shall be resentenced consistent with the disposition on appeal. In either event, the trial court shall prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.