People v. Steele CA2/1 ( 2021 )

Filed 5/24/21 P. v. Steele CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B302850,
consolidated with B304294
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. NA102745)
CLEO STEELE, et al.,
Defendants and Appellants.
APPEALS from a judgment of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Randall Conner, under appointment by the Court of Appeal,
for Defendant and Appellant Cleo Steele.
Aurora Elizabeth Bewicke, under appointment by the Court
of Appeal, for Defendant and Appellant Deven Jamar Johnson.
Xavier Becerra and Rob Bonta, Attorneys General, Matthew
Rodriguez, Acting Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
A jury convicted codefendants and appellants Cleo Steele and
Deven Jamar Johnson of home invasion robbery and first degree
burglary. The jury further found true allegations that the offenses
were gang-related and that a principal used a firearm during the
commission of the offenses. The trial court separately found true
prior strike and prior serious felony enhancements as to Steele and
sentenced him to an aggregate term of 45 years to life in state
prison. The court sentenced Johnson to a total term of 19 years in
state prison.
Steele and Johnson appeal their convictions on several
grounds. Johnson asserts: (1) the trial court violated his state and
federal constitutional rights by allowing the prosecution’s gang
expert to repeatedly testify to inadmissible hearsay, and (2) a
remand is necessary to allow the trial court to “strike” rather than
“stay” sentencing on the gang enhancement. Steele asserts: (1) the
record contains insufficient evidence from which to conclude that he
was the gunman who personally used the firearm during the
robbery, thereby precluding the trial court from imposing sentences
for both the firearm and gang enhancements pursuant to Penal
Code section 12022.53, subdivision (e)(2),1 and (2) there was
insufficient evidence to support the jury’s finding that the offense
was committed to benefit a criminal street gang. Both appellants
also contend that they are entitled to two additional days of
presentence custody credit, an issue respondent concedes on appeal.
1All further statutory references are to the Penal Code unless
otherwise specified.
2
We conclude that (1) the vast majority of the gang expert’s
testimony was permissible under prevailing law and that any
testimony erroneously admitted was harmless beyond a reasonable
doubt, and (2) there was sufficient evidence to support the gang
enhancement challenged by Steele. We also conclude, however,
that the trial court committed several sentencing errors with regard
to each appellant.
As to Johnson, the trial court erred by imposing and then
staying the gang enhancement, when, under applicable statutes, it
must strike the enhancement with the shortest penalty term. As to
Steele, the trial court lacked the authority to impose sentence on
both the firearm and gang enhancements in the absence of any jury
finding that Steele personally used a firearm. As to both
appellants, the trial court erred in failing to select and pronounce a
term for count 2 (and any associated enhancement allegations) prior
to staying sentence under section 654. Lastly, we direct the trial
court to grant both appellants two additional days of presentence
custody credits.
Accordingly, we affirm the judgments of conviction but
remand for further sentencing proceedings consistent with this
opinion.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
1. Home Invasion Burglary and Robbery
At about 7:47 p.m. on September 30, 2015, John C. was in the
garage of his house in Signal Hill, repairing a light fixture.2 The
garage door was open. John heard someone running in his
2 To protect the privacy of the victims, we will refer to them
by their first names and last initial. (Cal. Rules of Court, rule 8.90.)
3
driveway, and looked up to see a man pointing a black
semiautomatic handgun at him. The handgun had a blue clip that
extended from the handle. Another man appeared wearing a hoodie
that obscured his features. Both men were African-American. John
briefly noticed the “determined” and “angry” eyes of the person
holding the gun, but his attention was focused on the gun. The
gunman told John to drop the items he was holding, which included
a flashlight. John complied.
The gunman ordered John to turn around, placed the
handgun against the back of his head, and directed him into the
house through the entry door in the garage. As they stepped
through the doorway, John saw his wife, Laura C., and told her
they were being robbed. The gunman ordered John and Laura to lie
face down on the ground in the dining room, frisked them, and then
took their wedding rings and John’s watch. The gunman repeatedly
asked, “Where’s your cash?” and “Where’s your gold?” John
responded that he had left his wallet in the bedroom downstairs.
The second man went downstairs. Laura indicated her purse was
on the table, and the intruders took $50 from her purse. The
burglars also took a dress watch that was on the dining table.
The gunman became agitated because the victims did not
reveal any stores of cash or gold. The gunman stood on John’s back
and put the handgun to the back of his head. John told the gunman
he kept a safe in the downstairs bedroom closet with papers and
two guns. The gunman instructed the second man to check the
closet.
The home alarm system announced when a door or window
was opened, so John could tell that the second man was going
through the rooms upstairs and downstairs. John also heard the
garage door open several times and someone running down the
4
stairs. Based on the footsteps and alarm system alerts that he
heard, John believed a third person might have entered the house.
The gunman repeatedly threatened to kill the couple. John
told him that Laura’s wedding ring was worth $12,000, and they did
not have anything else of significant value. The gunman became
less agitated.
At one point, John heard the garage door and thought the
men had exited the house. He jumped to his feet, but the gunman
threw him to the ground and demanded duct tape. John said he did
not have any duct tape, and the men left soon thereafter.
While Laura called 911, John ran to a stained-glass window
near the front door. He saw two people struggling to carry a heavy
object up the street. John quietly exited the house and, while
hiding behind a bush, saw the men get into a “big boat American
car” like a Buick, Pontiac, or Oldsmobile. The car passed John’s
position as it proceeded toward Cherry Avenue. The car, a large
dark-colored sedan, had a broken headlight.
After the robbery, Laura noticed the men had taken two of
John’s watches that had been on a counter next to her purse. They
also took a bracelet, a pair of earrings, and other jewelry kept in a
box on her bedroom dresser.
2. Police Investigation
a. Suspect Vehicle Stop
At 8:02 p.m. Signal Hill Police Department (SHPD) Officer
Andrew Serna received a dispatch call about a home invasion
robbery and a description of the getaway car. About a minute later,
while driving south on Cherry Avenue, Officer Serna saw a vehicle
with a broken headlight matching the description of the suspect’s
car traveling away from the location of the victims’ home. Officer
Serna followed the car into the parking lot of a Home Depot store on
5
Cherry Avenue. He stopped the car and detained the occupants,
waiting for additional officers.
The adult occupants of the vehicle were identified as Charro
Tovar (the driver), Steele (the front passenger), and Johnson (the
rear passenger seated behind Tovar). T.T., Tovar’s six-year-old
daughter, occupied the rear passenger-side seat.
There was a flashlight in the car and a safe in the trunk. No
weapons were found. Officer Serna found a bracelet and a pair of
earrings in the front pocket of Johnson’s shorts. After speaking
with T.T., police searched the car for a firearm, but found none.
SHPD Officer Raul Ramirez, walking along Tovar’s route
backwards from the Home Depot parking lot, found a black LG cell
phone in the Home Depot parking lot, belonging to Steele, and an
off-white hooded sweatshirt on Cherry Avenue near the entrance to
the parking lot. The sweatshirt pocket contained a tangled ball of
jewelry and two watches.
b. Field Show Up
The police took John and Laura separately to the Home Depot
parking lot on Cherry Avenue about 30 minutes after the robbery.
Two suspects were shown to John. John “could not be sure”
that Steele was one of the robbers, but recognized Johnson
immediately as the robber wearing the hoodie. John was able to
identify Johnson, in part, by his distinctive high socks, shorts, and
sneakers. John identified the robbers’ car, as well as his custom
flashlight found inside the car, his safe, and the safe’s contents.
Laura could not positively identify either of the two suspects,
but thought Johnson could have been the younger “second” robber,
who was receiving orders from the gunman. She believed this
based on his “frame, his weight, his general look, clothing,” and his
“low shoes” paired with “high socks” that resembled those worn by
the second robber. She identified the jewelry found in Johnson’s
6
shorts as hers, as well as the tangled ball of jewelry and two
watches found in the hooded sweatshirt.
John’s wedding ring was found on the street outside his home,
but his watches were never recovered. Laura’s wedding ring was
never recovered.
3. Cell Phone Data
A search warrant for GPS location data was used to gather
information from Steele’s cell phone. On September 30, 2015, at
7:55 p.m., Steele’s cell phone was within seven meters of the
victims’ residence in Signal Hill. Steele’s cell phone also was near
the victims’ residence on September 23, 24, and 25, 2015.
4. T.T.’s Statements to Police
SHPD Sergeant Alex Gabaldon spoke with T.T. in the Home
Depot parking lot. T.T. told Gabaldon that her “father” (referencing
Steele) had left the car with a large blue gun, and that he had
returned to the car with “Funky Hair” (referencing Johnson.) She
saw Johnson throw a sweater with jewelry in it out of the window of
the car. She reported that the gun was under the front passenger
seat.
5. T.T.’s Trial Testimony
T.T. testified that while she was at a park with her mother
and Steele, Steele met with “Crazy Hair” (referencing Johnson), and
others.3 T.T.’s mother then drove her and Steele (but not Johnson)
to a place on a big hill with lights. Neither T.T.’s mother nor Steele
left the car. Steele, however, obtained someone’s flashlight and put
3 T.T. testified that one of the people Steele met at the park
was “Bingo.” Johnnie Johnson, aka “Bingo,” was initially charged
as a codefendant in the second amended information. (See fn. 5,
post.)
7
it on the floor of the car. They left the area about 35 to 45 minutes
later, this time with Johnson, and accompanied by at least one
other car.
Before the police stopped them, T.T. saw Steele’s gun in the
backseat next to her. She put it under a seat.
6. Gang Expert’s Testimony
Los Angeles County Sheriff’s Detective Ernesto Castaneda
testified as an expert on criminal street gangs. Two months prior to
the robbery, Steele admitted to Detective Castaneda that he was a
member of a group called the Underground Crips (UGC), which is
one of several groups operating under an umbrella association
known as the Rollin’ 100’s. Detective Castaneda observed UGC
tattoos on Steele’s neck and back during this contact. Photographs
taken shortly before the trial also depicted Steele with several UGC
related tattoos on his head, chest, and arms.
Detective Castaneda explained that the Rollin’ 100’s rivals
are the Hoovers. The term “HK” stands for “Hoover Killer.” Just
weeks before the instant offense, Johnson made references to HK
and the “Hundreds” on his Facebook page, including a statement
that he “[s]tarted school at HK University.” Posted photographs
showed Johnson wearing clothing associated with the UGC gang.
In addition, Johnson’s Facebook profile used the name “Infant Bill.”
Monikers using the name “Bill” were popular and were inspired by
respected UGC member Billy Shepard, whose moniker was “Lil
Hundred Dollar Bill.”
Photographs taken before trial revealed several UGC related
tattoos on Johnson’s face, neck, and hand. In particular, Johnson
had a dollar sign tattooed underneath his eye, and a moneybag with
a dollar sign on his hand, signifying he was a member of a
burglary/robbery crew. Gang tattoos are generally earned for
“putting in [the] work” (i.e., committing crimes for the benefit of the
8
gang).4 Moreover, if an individual obtained gang tattoos without
being a gang member, there would be violent repercussions against
him.
Based on a hypothetical situation, mirroring the prosecution’s
case, Detective Castaneda opined that the home invasion robbery
was committed for the benefit of, or in association with, a criminal
street gang.
B. Defense Evidence
In response to Detective Castaneda’s testimony that over 90
percent of UGC members are unemployed, Johnson’s mother
testified that Johnson was employed at a coffee house as a cook and
busser around the time of the robbery.
Johnson and Steele introduced their own gang experts to
contradict Detective Castaneda’s conclusions.
Johnson’s expert, Kimi Lent, was a gang intervention
specialist. She was familiar with the UGC. Lent testified that
African American gangs like UGC are “loosely structured” and their
members do not have an obligation to share the proceeds of their
crimes or to earn their tattoos. Presented with hypotheticals that
tracked the evidence, and assuming the two suspects were members
of the same gang, Lent was not able to state with any confidence
that the hypothetical robbery was committed “at the direction of, in
association with, or for the benefit of” the gang. She explained that
4 Detective Castaneda conceded he did not know which
tattoos, if any, Johnson had at the time of the offense (which
occurred four years prior to trial). Nonetheless, he explained that
even if Johnson did not have any of the tattoos at the time of the
robbery—and only obtained them after his arrest—the tattoos were
significant because Johnson chose to get UGC tattoos on his face,
neck, and hand while facing felony charges that included a gang
enhancement.
9
even “gang members can commit crimes that are personal in
nature,” and they can do so together. In order to conclude that “this
was definitely a gang crime,” Lent would have to know whether
people in the UGC neighborhood were aware of the crime or
whether there were social posts to that effect.
Steele’s gang expert, Dr. James Vigil, also contradicted the
notion that tattoos needed to be earned, stating that gang members
get tattoos on their own initiative. Dr. Vigil further testified that
African American gangs such as UGC do not share proceeds.
Offered a similar hypothetical, Dr. Vigil opined there was
insufficient evidence from which to conclude the incident in the
hypothetical was committed with an intent to benefit a gang.
C. Charges and Jury Verdicts
In a second amended information, the People charged Steele
and Johnson with home invasion robbery (§§ 211, 213; count 1), and
first degree burglary (§ 459; count 2). The information also charged
Steele with child abuse or neglect (§ 273a, subd. (a); count 3).5 As to
counts 1 and 2, the information alleged that the crime was
committed for the benefit of, at the direction of, or in association
with, a criminal street gang (§ 186.22, subd. (b)(4)), and that a
principal personally used a firearm (§§ 12022, subd. (a)(1),
12022.53, subds. (b) & (e)(1)). As to Steele, the information alleged
he had a prior strike conviction under the Three Strikes law
(§§ 667, subd. (d), 1170.12, subd. (b)), a prior serious felony
5 The second amended information charged Charro Tovar, the
driver of the car, and mother of T.T., in counts 1, 2, and 3, and also
charged codefendant, Johnnie Johnson (aka “Bingo”) in counts 1
and 2. The charges against Tovar and Johnson were not addressed
in the trial involving Steele and Johnson.
10
conviction (§ 667, subd. (a)(1)), and had served a prior prison term
(§ 667.5, subd. (b)).
Steele and Johnson were tried jointly. The jury convicted
both as charged in counts 1 and 2, and found true the gang and
firearm allegations. The jury found Steele not guilty of the child
abuse charge in count 3. The trial court subsequently found true
the prior prison term, prior strike, and prior serious felony
conviction enhancements as to Steele.
On November 20, 2019, the trial court sentenced Steele to 45
years to life in state prison, consisting of 15 years to life on count 1,
doubled due to the strike prior, plus a consecutive sentence of 10
years for the firearm enhancement and five years for the prior
serious felony conviction. The court stayed the sentence on count 2
pursuant to section 654.6
On the same day, the trial court sentenced Johnson to serve
19 years in state prison. The court selected the upper term of nine
years on count 1, and added 10 years for the firearm enhancement.
The court indicated it was “choosing to stay . . . the gang allegation,
given its imposition of the gun allegation.” The court further stayed
the sentence on count 2, pursuant to section 654.
Steele and Johnson timely appealed their respective
judgments, and we consolidated their appeals.
6The trial court did not impose a term for the prior prison
term enhancement, and it does not appear in Steele’s abstract of
judgment. (See Discussion VI, post.)
11
DISCUSSION
I
Johnson’s Assertion of Sanchez/Crawford Error
Johnson contends the trial court committed reversible error
by allowing the prosecution’s gang expert to testify about
inadmissible case-specific, and sometimes testimonial, hearsay in
violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and
Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158
L.Ed.2d 177] (Crawford). Respondent counters there was no error,
and in the alternative, any error was harmless under the more
lenient Watson standard. (People v. Watson (1956) 46 Cal.2d 818,
836.) We conclude the vast majority of the gang expert testimony
was not testimonial, and was properly admitted as general
background information, independently corroborated by the
personal observations and knowledge of the expert, or subject to a
valid hearsay exception. Any testimony erroneously admitted was
harmless under even the more stringent Chapman standard of
review. (See Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct.
824, 17 L.Ed.2d 705] (Chapman).)
A. Relevant Legal Principles
1. Standard of Review
We review the trial court’s evidentiary rulings, including
those that turn on the hearsay nature of the evidence, for abuse of
discretion (People v. Harrison (2005) 35 Cal.4th 208, 230; People v.
Waidla (2000) 22 Cal.4th 690, 725), keeping in mind that an abuse
of discretion occurs when the trial court makes an error of law.
(People v. Patterson (2017) 2 Cal.5th 885, 894; People v. Morrison
(2004) 34 Cal.4th 698, 724; see People v. Rowland (1992) 4 Cal.4th
238, 266 [a trial court’s ruling regarding the admissibility of
evidence underlying an expert’s opinion is subject to an abuse of
12
discretion standard, but its conclusion regarding an underlying
legal principle is subject to independent review].)
If error is found, any violation of state evidentiary rules is
reviewed for prejudice under the Watson standard. (People v. Fudge
(1994) 7 Cal.4th 1075, 1102-1103; Sanchez, supra, 63 Cal.4th at pp.
685 & 698; People v. Watson, supra, 46 Cal.2d at p. 836.) A
violation of the confrontation clause is reviewed for harmless error
under the Chapman standard. (People v. Amezcua and Flores
(2019) 6 Cal.5th 886, 912; Sanchez, supra, at p. 698; see Chapman,
supra, 386 U.S. at p. 24 [“before a federal constitutional error can be
held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt”].)
2. Experts, Hearsay, and the Sanchez Rule
Hearsay generally is inadmissible, unless it falls under an
exception. (Evid. Code, § 1200, subds. (a), (b); Sanchez, supra, 63
Cal.4th at p. 676.) Although expert witnesses frequently acquire
knowledge in their field of expertise from hearsay sources, “[t]he
hearsay rule has traditionally not barred an expert’s testimony
regarding his general knowledge in his field of expertise.” (Sanchez,
supra, at p. 676.)
In Sanchez, our Supreme Court explained that “[w]hen 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.”
(Sanchez, supra, 63 Cal.4th at p. 686.) The high court defined
“[c]ase-specific facts” as “those relating to the particular events and
participants alleged to have been involved in the case being tried.”
(Id. at p. 676.) It held that an expert’s recitation of case-specific
facts is prohibited if the facts are outside the expert’s personal
knowledge, do not fall under an exception to the hearsay rule, or
have not been independently established by competent evidence.
13
(Id. at pp. 676-677, 686.) Sanchez preserved an expert’s ability to
rely on and cite background information “regarding his knowledge
and expertise and premises generally accepted in his field” and to
“tell the jury in general terms” “the kind and source of the ‘matter’
upon which his opinion rests.” (Id. at pp. 685-686.) To elucidate the
distinction between general background information and case-
specific facts, Sanchez provided the following example in a gang-
related context. “That an associate of the defendant had a diamond
tattooed on his arm would be a case-specific fact that could be
established by a witness who saw the tattoo, or by an authenticated
photograph. That the diamond is a symbol adopted by a given
street gang would be background information about which a gang
expert could testify. The expert could also be allowed to give an
opinion that the presence of a diamond tattoo shows the person
belongs to the gang.” (Sanchez, supra, 63 Cal.4th at p. 677.)
3. The Confrontation Clause and the Crawford Rule
In Crawford, the United States Supreme Court held that the
admission of “testimonial” hearsay against a criminal defendant
violates the Sixth Amendment right to confront and cross-examine
witnesses. (Crawford, supra, 541 U.S. at pp. 53-54.) In light of
Crawford, the Sanchez court held that an additional step of analysis
is required in criminal cases to determine if an expert’s statements
qualify as “testimonial hearsay.” (Sanchez, supra, 63 Cal.4th at
p. 686). Canvassing confrontation clause cases, the Sanchez court
concluded hearsay statements are testimonial if they are made
“primarily to memorialize facts relating to past criminal activity,
which could be used like trial testimony. Nontestimonial
statements are those whose primary purpose is to deal with an
ongoing emergency or some other purpose unrelated to preserving
facts for later use at trial.” (Id. at p. 689, fn. omitted, citing
Michigan v. Bryant (2011) 562 U.S. 344 [131. S.Ct. 1143, 179
14
L.Ed.2d 93] and Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct.
2266, 165 L.Ed.2d 224].)
B. Analysis of Testimony Challenged by Johnson
1. The Gang Expert Explained His Background and
Training in General Terms
In Sanchez, the high court took care to note the defendant
was not challenging the expert’s “background testimony about
general gang behavior or descriptions of the . . . gang’s conduct and
its territory,” which was “based on well-recognized sources in [the
expert’s] area of expertise.” (Sanchez, supra, 63 Cal.4th at p. 698.)
The high court observed such testimony “was relevant and
admissible evidence as to the . . . gang’s history and general
operations.” (Ibid.)
Like the expert in Sanchez, Detective Castaneda explained
his knowledge and training in general terms. He testified his
expertise was built on the conversations he had had with detainees
while working at the local jail and as a patrol officer handling a
large volume of gang-related cases, including crimes committed by
UGC members. His knowledge of the UGC gang was based on
information conveyed by its members directly to him and to other
officers, as well as booking photographs displaying tattoos he knew
to be associated with the group.
According to Detective Castaneda, UGC is a gang with
approximately 75 to 100 members. From 2008 to 2013, he
personally arrested 60 to 70 UGC gang members. From 2013 to
2017, he was promoted to detective gang investigator and assigned
to the South Los Angeles Sheriff's Station. His duties included
investigating gang-related crimes, focusing on the Rollin’ 100’s
group of criminal street gangs, which included UGC, and their rival
gangs. He investigated armed robberies, burglaries, and shootings,
among other crimes. From 2013 to 2016, he conducted over 100
15
investigations involving UGC gang members. On a weekly basis, he
would contact gang members and speak with community members
about the gang.
In so testifying, Detective Castaneda laid a general
foundation for his testimony. (See, generally, People v. Martinez
(2008) 158 Cal.App.4th 1324, 1330 [an expert’s “eight years dealing
with the gang, including investigations and personal conversations
with members, and reviews of reports suffices to establish the
foundation for his testimony” regarding the gang’s primary
activities]; In re Alexander L. (2007) 149 Cal.App.4th 605, 613 [an
expert lays a proper foundation by establishing that his or her
opinion is based on “conversations with the defendants and with
other [gang] members, . . . personal investigations of hundreds of
crimes committed by gang members, as well as information from . . .
colleagues and various law enforcement agencies”].) In large part,
his testimony avoided referring “to any particular statement made
by any one person to him,” and was not hearsay and thus did not
violate either Sanchez or the confrontation clause. (People v. Vega-
Robles (2017) 9 Cal.App.5th 382, 413.)
2. In Determining Whether the Specific Testimony
Challenged by Johnson is Case-specific, Our Focus is on
the Nature of the Information Disclosed, Not Its Source
Johnson notes that foundational objections raised by trial
counsel during Detective Castaneda’s testimony, and a line of
questioning pursued during cross-examination by defense counsel,
prompted the detective to provide more specific examples of his
source material. Based on the specificity of the detective’s answers,
Johnson argues the testimony constituted case-specific hearsay.
In a post-Sanchez case, our high court clarified the approach
to evaluating whether testimony is case-specific. “The focus of the
inquiry is on the information conveyed by the expert’s testimony,
16
not how the expert came to learn of such information. Thus,
regardless of whether an expert testified to certain facts based on
composite knowledge ‘acquired from sources too numerous to
distinguish and quantify’ or if the expert simply looked up the facts
in a specific reference as part of his or her duties in a particular
case, the facts remain the same. The background or case-specific
character of the information does not change because of the source
from which an expert acquired his or her knowledge.” (People v.
Veamatahau (2020) 9 Cal.5th 16, 30 (Veamatahau).)
Accordingly, in assessing whether the specific lines of expert
testimony challenged by Johnson constitute “background
information” or “case-specific facts,” we maintain our focus on the
nature of the information conveyed to the jury, as opposed to the
source of the information.
3. Detective Castaneda’s Testimony Regarding the UGC’s
Culture, Rules, and Expectations Constituted General
Background Information, Not Case-specific Facts
Johnson complains that Detective Castaneda improperly
testified about: (1) the expectation that crime proceeds would be
distributed among gang members; (2) the likelihood of retribution
for failing to distribute such proceeds; (3) the likelihood any
retaliation would be violent; (4) the likelihood UGC would engage in
such retaliatory conduct; (5) the requirement that tattoos be
“earned”; (6) the likelihood an individual would engage in bragging
while in custody; (7) the benefits a gang receives from bragging; and
(8) that UGC members typically are unemployed.
“Since Sanchez, California appellate courts have held that
expert testimony about ‘the general attributes of the . . . gang, such
as the gang’s culture, the importance placed on reputation and
guns, . . . the gang’s rivals and claimed turf, the use of monikers
and identifying symbols, and the like, [are] permissible as expert
17
background testimony.’ [Citations.]” (People v. Anthony (2019) 32
Cal.App.5th 1102, 1138; see also People v. Meraz (2018) 30
Cal.App.5th 768, 780.) Consistent with these cases, the information
conveyed by Detective Castaneda in each of the categories identified
by Johnson concerns the general behavior and habits of the UGC
gang. It qualifies as the type of background information that is
permissible under Sanchez, and may form the basis of the expert’s
opinion, even if it is derived from hearsay. (Sanchez, supra, 63
Cal.4th at pp. 685-686, 698.) Moreover, as the testimony concerned
the general behaviors of the UGC gang, without divulging any out-
of-court statements, it did not amount to testimonial hearsay in
violation of Crawford. (People v. Thompkins (2020) 50 Cal.App.5th
365, 404 (Thompkins).)
Johnson suggests that by overruling some of his
“foundational” objections to the above lines of testimony, the trial
court “hindered [his] ability to prevent the prosecution’s
introduction of inadmissible evidence.” However, as explained in
Veamatahau, if testimony is properly characterized as “background
information” it so remains regardless of the underlying source.
(Veamatahau, supra, 9 Cal.5th at p. 26.) Under Sanchez, “[a]ny
expert may still rely on hearsay in forming an opinion, and may tell
the jury in general terms that he did so.” (Sanchez, supra, 63
Cal.4th at p. 685.) This is what Detective Castaneda did in this
case.7
7
The Sanchez court expressly recognized that allowing an
expert who relies on hearsay to simply “tell the jury in general
terms that he did so . . . may do less to bolster the weight of the
opinion” but pointed out that to the extent that “Crawford and its
progeny . . . complicate some heretofore accepted evidentiary rules,
they do so under the compulsion of a constitutional mandate as
18
4. Detective Castaneda’s Testimony Regarding the
Predicate Acts of Two Gang Members
a. Definition of “Criminal Street Gang” Within the
Meaning of Section 186.22
The jury found that both Steele and Johnson committed
felonies “for the benefit of, at the direction of, or in association with
any criminal street gang,” pursuant to section 186.22, subdivision
(b). The definition of “criminal street gang” is supplied by section
186.22, subdivision (f).
“ ‘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. [Citations.]’
[Citation.]” (People v. Lara (2017) 9 Cal.App.5th 296, 326-327.)
“The phrase ‘primary activities,’ as used in the gang statute,
implies that the commission of one or more of the statutorily
enumerated crimes is one of the group’s ‘chief’ or ‘principal’
occupations.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)
Courts have held that expert testimony about a gang’s “primary
activities” is considered admissible background information under
Sanchez. (Thompkins, supra, 50 Cal.App.5th at p. 409; People v.
Vega-Robles, supra, 9 Cal.App.5th at p. 411.)
A “pattern of criminal gang activity” means the commission of
“ ‘two or more’ ” of the statutorily enumerated offenses. (People v.
Tran (2011) 51 Cal.4th 1040, 1044; see § 186.22, subd. (e)(1)-(33).)
established by binding Supreme Court precedent.” (Sanchez, supra,
63 Cal.4th at p. 686.)
19
These offenses generally have been termed “predicate offenses”
(although the phrase does not appear in the statute), two or more of
which must have been committed by gang members within a
statutorily-defined timeframe to establish the gang as a “criminal
street gang.” (§ 186.22, subd. (e).) The predicate offenses need not
themselves be “ ‘gang related,’ ” i.e., it is not necessary to prove they
were committed for the benefit of, at the direction of, or in
association with a gang. (People v. Gardeley (1996) 14 Cal.4th 605,
610, 621, disapproved on other grounds in Sanchez, supra, 63
Cal.4th at p. 686, fn. 13.) Proof of an actual conviction is
unnecessary. (People v. Garcia (2014) 224 Cal.App.4th 519, 524.)
The charged offense at trial may serve as a predicate offense to
qualify the gang as a criminal street gang. (People v. Tran, supra,
at p. 1046; People v. Gardeley, supra, at p. 625.)
To prove that a particular gang meets the requirements of
section 186.22, subdivision (f), the prosecution usually presents a
gang expert to describe the name or “ ‘identifying sign[s] or
symbol[s]’ ” of the promoted gang; the gang’s “ ‘primary activities’ ”;
and at least two offenses committed by the defendant or his fellow
gang members to show the gang had engaged in a “ ‘pattern of
criminal gang activity.’ ” (People v. Prunty (2015) 62 Cal.4th 59, 75-
85.) That was the approach the prosecution took in this case,
through Detective Castaneda.
Thus, Detective Castaneda testified that UGC had 75 to 100
active members, at least three of whom have admitted their gang
membership to him; that their common sign or symbol is primarily
“UG” or “UGC”; and that they commonly wear apparel by the
Indianapolis Colts football team, which includes the color blue with
a horseshoe in the form of a “U.” He also demonstrated the UGC
common hand sign for the jury. The detective further testified that
the primary activities of the UGC gang include robberies,
20
burglaries, felony vandalism, assaults committed with and without
firearms, and attempted murders.
On appeal, Johnson acknowledges that an expert’s testimony
about the general functioning of gangs has, post-Sanchez, been
recognized as the kind of background information to which an
officer may testify, citing Thompkins, supra, 50 Cal.App.5th at
pp. 403-404. Johnson, however, challenges Detective Castaneda’s
testimony regarding the two predicate offenses used to establish the
gang’s pattern of criminal activity. He argues the testimony
consisted of case-specific facts and testimonial hearsay, in violation
of the confrontation clause. For the reasons explained below, we
discern no reversable error.
b. Testimony Regarding Predicate Offenses
(i) Predicate offense involving Marcus Toomes
At trial, the prosecution introduced a “certified docket” for
case No. YA086534. In that case, Marcus Toomes was convicted of
committing a robbery on November 1, 2012. The charges did not
involve gang allegations. During the investigation of the robbery,
Detective Castaneda served a search warrant at Toomes’s
residence. Detective Castaneda also had three to four contacts with
Toomes while working at the Lennox Station patrol.
When the prosecutor asked Detective Castaneda if Toomes
was a UGC gang member, Johnson asserted an objection for lack of
foundation. The trial court sustained the objection. Detective
Castaneda then testified that during three or four prior patrol
contacts with Toomes, Toomes admitted his gang membership and
gang moniker. Detective Castaneda also observed that Toomes had
“100’s” tattooed on his chest, which is a tattoo commonly used by
UGC members. Detective Castaneda also investigated another
crime committed by Toomes, with UGC gang member Erik Ward.
Johnson objected on hearsay grounds to the admission by Toomes,
21
and objected on foundation grounds to the testimony that Ward was
a UGC member. The objections were overruled. Detective
Castaneda opined that Toomes was a UGC gang member on
September 30, 2015, the date of the home invasion robbery alleged
against Steele and Johnson.
(ii) Predicate offense involving Eugene Flowers
The prosecution introduced a certified docket in case
No. YA093134. In that case, Eugene Flowers was convicted of
prohibited possession of a firearm on August 6, 2015, in violation of
section 29800, subdivision (a)(1). Detective Castaneda responded to
the scene of the incident. This second predicate offense did not
involve a gang allegation. Detective Castaneda had over 20 prior
contacts with Flowers. Flowers admitted he was a UGC member,
displayed his “UG” tattoos, and told Castaneda his gang moniker.
Citing Sanchez, Johnson objected that Flowers’s statements were
hearsay. The objection was overruled. Detective Castaneda opined
that Flowers was a UGC gang member on September 30, 2015.
Johnson’s objection on foundation grounds was overruled.
c. A Split of Authority Has Developed Regarding
Testimony of Predicate Offenses Involving Gang
Members Other Than the Defendants on Trial
In proving a gang enhancement allegation under section
186.22, a split of authority has developed regarding the admission
of evidence of the predicate offenses committed by gang members.
In People v. Ochoa (2017) 7 Cal.App.5th 575 (Ochoa), the
expert testified that nondefendants involved in the predicate
offenses had admitted their gang membership. (Id. at pp. 582, 588-
589.) The First District Court of Appeal found that it “seem[ed]
clear” the expert’s testimony regarding the admissions of gang
membership was case-specific, but any error in its admission was
harmless. (Id. at pp. 588-589; see also People v. Vega-Robles, supra,
22
9 Cal.App.5th at p. 415 [citing Ochoa and noting that “[u]nder
Sanchez, it appears that testimony about a nonparty’s out-of-court
admission that he or she is a gang member, offered to prove he or
she is a gang member, is hearsay,” but finding any error harmless].)
The Third District Court of Appeal has expressed
disagreement with Ochoa, holding that testimony about
participants other than the defendant being tried is “historical
background information” about the “gang’s conduct and activities”
and that “a predicate offense is essentially a chapter in the gang’s
biography.” (People v. Bermudez (2020) 45 Cal.App.5th 358, 363,
376-377 & fn. 13.) Our colleagues in Division Eight of this court
also reached a contrary conclusion to that announced in Ochoa.
(See People v. Meraz, supra, 30 Cal.App.5th at pp. 781 [holding that
testimony about a gang’s “pattern of criminal activities” constituted
“general background testimony” because it was “unrelated to [the]
defendants or the current shooting and mirrored the background
testimony the expert gave in Sanchez”].)8
Here, the predicate offenses, none of which involved Johnson
or Steele, were unrelated to the events on trial. Nonetheless, a
portion of the detective’s testimony referenced admissions by
Toomes and Flowers, calling into question the proper
characterization of the admissions as case-specific hearsay or
8 In 2020, the California Supreme Court ordered briefing in
People v. Garcia (July 10, 2018, F073515) 208 Cal.App.Unpub.
LEXIS 4681 (nonpub. opn.), review granted October 17, 2018,
S250670, to consider whether “gang expert testimony regarding
uncharged predicate offenses to establish a ‘pattern of criminal
gang activity’ under . . . section 186.22, subdivision (e) constitute[s]
background information or case-specific evidence within the
meaning of [Sanchez],” and whether “any error [was] prejudicial.”
(People v. Garcia (2020, S250670) 2020 Cal.LEXIS 4641.)
23
background information. We need not resolve this issue, however,
because other admissible evidence satisfied the requirement to
prove two qualifying predicate acts.
d. Testimony Regarding the Predicate Offenses was
Subject to a Valid Hearsay Exception and/or
Independently Corroborated
As explained above, an expert’s recitation of case-specific facts
does not run afoul of Sanchez if the facts are within the expert’s
personal knowledge, fall under an exception to the hearsay rule, or
have been independently established by competent evidence.
(Sanchez, supra, 63 Cal.4th at pp. 676-677, 686; Thompkins, supra,
50 Cal.App.5th at p. 406; see Discussion I, section A.2., ante.) Much
of the predicate offense evidence satisfies these exceptions.
First, to prove the commission of two statutorily enumerated
offenses, the convictions of Toomes and Flowers were established
through certified court records. These were admissible under state
hearsay rules to prove the offenses occurred. (Thompkins, supra, 50
Cal.App.5th at p. 412; People v. Duran (2002) 97 Cal.App.4th 1448,
1460, citing Evid. Code, § 452.5 [“[Evid. Code, § 452.5, subd. (b)]
creates a hearsay exception allowing admission of qualifying court
records to prove not only the fact of conviction, but also that the
offense reflected in the record occurred”].) In addition, certified
records such as these “are not testimonial in nature because they
are ‘prepared to provide a chronicle of some act or event relating to
the public employee’s duty’ and are not ‘produced to be used in a
potential criminal trial or to determine whether criminal charges
should issue.’ ” (Thompkins, supra, at p. 412, quoting People v.
Taulton (2005) 129 Cal.App.4th 1218, 1225.)
Johnson contends that People v. Garcia (2020) 46 Cal.App.5th
123, dictates a different result. We disagree. In Garcia, the court
held that under Kirby v. United States (1899) 174 U.S. 47 [19 S.Ct.
24574, 43 L.Ed. 890], a confrontation clause violation occurs if the
prosecution seeks to prove more than the mere commission of a
prior offense with conviction records. (People v. Garcia, supra, at
p. 171.) The court concluded the use of conviction records to prove
the date of the offense and thereby satisfy the statutorily-defined
timeframe required by section 186.22, subdivision (e), “plainly
violates Kirby’s proscription of the use of the records of prior
convictions to prove any fact other than the fact of the prior
conviction.” (People v. Garcia, supra, at p. 172.)
The Garcia court found a confrontation clause violation with
regard to one of the predicate offenses because the testifying officer
had no involvement in the first offense and therefore must have
relied upon testimonial hearsay in stating the date of the offense.
(People v. Garcia, supra, 46 Cal.App.5th at p. 172.) With regard to
the second predicate offense, however, the testifying officer
personally participated in the arrest that led to the conviction.
Based on the officer’s personal knowledge of the relevant date, no
confrontation clause violation occurred. (Id. at p. 173.)
In the present case, Detective Castaneda was personally
involved in both predicate offenses, having served a search warrant
in the Toomes case and having responded to the scene of the
incident in the Flowers case. Therefore, the admission of his
testimony about the date of the offense was consistent with Garcia.
The prosecution also was required to prove the predicate
offenses were committed by gang members. Though neither of the
predicate offenses included a gang enhancement finding, Detective
Castaneda was personally involved in the investigation of both
offenses, and testified that Toomes and Flowers were UGC gang
members. Castaneda’s knowledge was based in part on his
personal observation of their gang-related tattoos, and based on
additional contacts with each of the men. Testimony by an officer
25
about personal observations of an individual’s tattoos, location,
companions, or clothing, is not hearsay and thus does not run afoul
of Sanchez or the confrontation clause. (People v. Iraheta (2017) 14
Cal.App.5th 1228, 1248.)
In sum, Detective Castaneda’s testimony regarding the
predicate offenses committed by Toomes and Flowers was
independently corroborated by admissible evidence (the certified
court records) and the detective’s personal knowledge regarding the
dates of the offenses and their gang membership. Therefore, the
admission of this testimony was not error under Sanchez, and was
not testimonial under Crawford. (See Sanchez, supra, 63 Cal.4th at
p. 686.) To the extent the detective also testified that Toomes and
Flowers admitted their gang membership to him, in view of the
properly admitted evidence of their gang membership, any error in
admitting their hearsay statements was harmless beyond a
reasonable doubt. (See People v. Meraz, supra, 30 Cal.App.5th at
p. 783 [finding any error in admitting expert testimony based on
information supplied by other officers was harmless where the
evidence was duplicative of other proof of gang membership]; People
v. Vega-Robles, supra, 9 Cal.App.5th at pp. 414 & 416 [same].)9
5. Evidence Regarding Steele’s Gang Membership Was
Properly Admitted
Detective Castaneda testified that Steele told him he was a
UGC gang member and his moniker was “Tiny Fly.” Later,
Detective Castaneda opined that Johnson was a UGC gang member
based, in part, on his association with Steele.
9 To the extent Johnson objects to additional testimony
regarding the predicate offenses that might have qualified as case-
specific, or testimonial, hearsay, its admission was harmless, as
discussed below. (See Discussion I, section B.6., post.)
26
Johnson argues the trial court erred by admitting, over his
objection, Detective Castaneda’s testimony that Steele admitted he
was a UGC gang member with the moniker Tiny Fly.
a. Steele’s Out-of-court Admission to Prove His
Gang Membership Did Not Violate Sanchez or
Crawford
Steele’s own statements were admissible against him as a
party admission and, as such, could not violate the confrontation
clause as to him. (Evid. Code, § 1220 [out-of-court admissions by an
opposing party are admitted for their truth]; People v. Jennings
(2010) 50 Cal.4th 616, 662 [a defendant’s own admissions do not
implicate the confrontation clause “ ‘because the defendant only has
the right to confront the “witnesses against him” ’ ”].) Moreover,
Steele’s statement that he was a UGC gang member and his
moniker was Tiny Fly did not implicate Johnson. (See Bruton v.
United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d
476].)10 The trial court admonished the jury that this testimony
regarding Steele was not admissible against Johnson. The jury also
was instructed that it “must separately consider the evidence as it
applies to each defendant” and “decide each charge for each
defendant separately.”
10 Under Bruton and its progeny, the admission at a joint
trial of a nontestifying defendant’s confession implicating a
codefendant violates the confrontation clause if the confession is
“ ‘facially incriminating’ ” of the nondeclarant defendant. (People v.
Fletcher (1996) 13 Cal.4th 451, 455.) Johnson does not assert a
claim of Bruton error.
27
b. Additional Evidence Was Properly Admitted to
Support the Expert’s Opinion of Johnson’s Gang
Membership
In opining that Johnson was a gang member, Detective
Castaneda acknowledged that his opinion was based, in part, on
Johnson’s association with Steele. Johnson argues that Steele’s
admission constituted case-specific hearsay to the extent the
admission informed the detective’s opinion of Johnson’s gang
membership.
If the sole basis for Detective Castaneda’s opinion regarding
Steele’s gang membership had been Steele’s admission, his reliance
on that admission to conclude that Johnson was a gang member
and the charged offense was gang related could constitute case-
specific hearsay as to Johnson. (See Sanchez, supra, 63 Cal.4th at
pp. 676-677, 686 [testimony is case-specific if it involves
“participants alleged to have been involved in the case being
tried”].) However, Detective Castaneda’s opinion as to Steele’s
membership in UGC also was based on his personal observations
and knowledge.
In addition to referencing Steele’s self-admission during a
patrol contact on July 28, 2015, Detective Castaneda testified that
Steele showed him his UGC tattoos, including a “U” on his neck,
and “UGC” on his back. The detective based his opinion that Steele
was a current gang member on his “contact with Mr. Steele, the
tattoos that [he] observed, as well as other tattoos that [he]
photographed on prior occasions.”11 Detective Castaneda reviewed
11 When the prosecutor followed up by asking Detective
Castaneda whether Steele’s admission in July 2015 played into the
detective’s “opinion at all” (italics added), Detective Castaneda
asked the prosecutor to clarify whether he was referring to “[t]he
entire contact itself or just the self-admittal to me?” After the
28
a series of photographs he recently had taken of Steele and testified
that the photographs were relevant to his opinion that Steele was
currently a UGC member, pointing out that Steele had clear UGC
tattoos “on his face and neck, visible to the public eye.” As such,
Detective Castaneda’s opinion regarding Steele’s membership was
based in part on his past and present observations of Steele’s gang-
related tattoos. These first hand observations do not implicate
Sanchez or Crawford because such observations do not constitute
hearsay. (See People v. Vega-Robles, supra, 9 Cal.App.5th at p. 413
[“[a]s we read Sanchez, it is not error for a gang expert to testify
about case-specific facts about which he has personal knowledge,”
nor does it “offend the confrontation clause,” and noting the
detective had such personal knowledge where he had, inter alia,
personally met gang members, viewed their tattoos, and viewed
letters signed under the gang name]; see also People v. Mendez
(2019) 7 Cal.5th 680, 693 [finding no error under Sanchez where the
defendant expressly “chose to let [the gang expert] testify to
hearsay accounts of his prior police contacts,” but also observing
that the prosecutor potentially could have established the same
facts “based on what the on-scene officers themselves observed”].)
Furthermore, Detective Castaneda’s opinion regarding
Johnson’s gang membership also was based on his independent
observations of Johnson. The detective viewed recent photographs
of Johnson showing several UGC related tattoos, including the
prosecutor responded, “Just the self-admittal,” Detective Castaneda
responded, “Yes.”
In his opening brief, Johnson extracts the “just the self-
admittal” excerpt to assert that Detective Castaneda’s belief that
Steele was a gang member was based only on “ ‘the self-admittal,’
not the tattoos.” Johnson’s assertion, however, is contrary to
Detective Castaneda’s testimony.
29
symbols that signified he was a member of a burglary/robbery crew.
Detective Castaneda also personally reviewed Johnson’s Facebook
profile and posts, and found photographs in which Johnson was
wearing attire associated with the UGC gang. Johnson’s posts
included statements such as “started school at HK University.” The
detective recognized the “HK” as an acronym for “Hoover Killers,”
referencing a rival of UGC. The photographs of Johnson in UGC
related attire, as well as the “HK University” statement were
posted only weeks before the instant home invasion robbery. Here
again, the detective’s personal observation of Johnson’s tattoos does
not constitute hearsay, and his reliance on Johnson’s Facebook
posts was permissible because they constituted party admissions.
As such, we discern no Sanchez or Crawford error. (See People v.
Vega-Robles, supra, 9 Cal.App.5th at p. 413.)
6. The Admission of Additional Testimony That Might
Qualify as Case-specific and/or Testimonial Hearsay
Was Harmless Beyond a Reasonable Doubt
Johnson challenges additional testimony elicited from
Detective Castaneda during direct examination and cross-
examination, which Johnson alleges is case-specific, testimonial
hearsay.12 Specifically, Johnson challenges the following
testimony.
12In Veamatahau, our high court left open the question of
whether hearsay elicited by a defendant on cross-examination that
runs afoul of Sanchez should be deemed “invited . . . error.” (See
Veamatahau, supra, 9 Cal.5th at p. 27, fn. 2.) We need not resolve
this question.
30
a. Additional Testimony Challenged by Johnson
(i) UGC Members Billy Shepherd, Marcus
Broadmax, and Johnnie Johnson
In testifying about his prior contact with Steele in July of
2015, Detective Castaneda noted Steele was in the company of
three other UGC members. After Johnson’s objection for lack of
foundation, the detective testified that he knew the other three men
from prior contacts. The three men were Billy Shepherd (“Hundred
Dollar Bill”), Marcus Broadmax (“Lil Midnight”), and Johnnie
Johnson (“Bingo”). Detective Castaneda testified all three had, at
various times, admitted their gang membership to him. The court
overruled Johnson’s subsequent objection on grounds of hearsay
and Sanchez.
(ii) UGC Member Erik Ward
In testifying about the predicate offense committed by UGC
member Toomes, Detective Castaneda testified he had investigated
another crime committed by Toomes with UGC member Ward. The
court overruled Johnson’s foundation and hearsay objections
regarding Castaneda’s knowledge that Ward was a UGC member.
(iii) UGC Member Marques Coleman
In testifying about Johnson’s Facebook account, Detective
Castaneda noted that in his profile picture, Johnson was with
Marques Coleman, a UGC member. The detective’s knowledge
regarding Coleman’s gang membership was based on several patrol
contacts and Coleman’s admission that he was a UGC member.
The court overruled Johnson’s objection on grounds of hearsay and
Sanchez.
During cross examination, Johnson’s counsel elicited from
Detective Castaneda that Coleman admitted his UGC membership
31
sometime in 2014 or 2015 while the detective was investigating
Coleman for another crime.
(iv) UGC Member Darwin Nixon
During direct examination, Detective Castaneda testified that
there was an expectation that UGC members share and disburse
funds obtained from crimes amongst the gang for their continuing
operations, and that a gang member who refused to share such
proceeds would suffer negative repercussions. Detective Castaneda
stated his opinion was based on “[t]alking to hundreds of gang
members about different scenarios in which they live day to day,
which includes what were to happen if you commit a crime and
keep the money to yourself.”
During cross-examination, Johnson’s counsel asked Detective
Castaneda where he learned that there was an expectation that
crime proceeds would be shared amongst the gang. Detective
Castaneda responded that he learned this information from
“[v]arious interviews that I conducted of individuals from different
gangs, including the Underground Crips,” and from reviewing
reports of other robberies where proceeds were stored in stash
houses for the gang. Johnson’s counsel then asked Detective
Castaneda if he knew of any specific instance in which a gang
member suffered repercussions for failing to share proceeds from a
crime. Detective Castaneda stated he did not, but had been told of
such repercussions after talking with gang members. Johnson’s
counsel asked the detective “[w]hich gang members” told him about
such repercussions. The detective responded that a UGC gang
member named Darwin Nixon had explained such consequences
while Nixon was in custody for an incident the detective was
investigating at the time.
32
b. In Light of the Wealth of Admissible Gang-related
Evidence, Any Error in Admitting the Additional
Testimony Challenged by Johnson Was Harmless
Beyond a Reasonable Doubt
Assuming the foregoing admissions by other individuals to
Detective Castaneda was testimonial hearsay and was admitted in
violation of the federal confrontation clause, we find any error
harmless beyond a reasonable doubt in light of the wealth of gang-
related evidence that was properly admitted. (See People v. Bell
(2020) 47 Cal.App.5th 153, 196-197.)
First, as to the statements by Billy Shepherd, Marcus
Broadmax, and Johnnie Johnson, Detective Castaneda was
personally present for the encounter with Steele in July of 2015,
spoke with him during the contact, and observed several UGC
tattoos on his person. These observations provided a more direct
link between Steele and UGC than the men found in his company.
(People v. Bell, supra, 47 Cal.App.5th at p. 197 [finding harmless
error where the properly admitted evidence of gang membership
was “compelling,” including the gang-related tattoos observed on
two of the defendants].)
Second, as to Detective Castaneda’s reference to Ward’s
commission of an offense with Toomes, as previously discussed, the
detective was involved in the investigation of the predicate offense
involving Toomes and personally observed a UGC related tattoo on
Toomes. Thus, the reference to Ward was tangential to proving
Toomes’s gang membership.
In addition, the jury was instructed that if they found
Johnson guilty of the charges on trial, they could consider his
conduct in determining whether the “pattern of criminal gang
activity” had been established. Thus, the jury’s conviction of
Johnson supplied the second predicate offense required by section
33
186.22, subdivision (e), and any error in admitting the detective’s
testimony regarding Toomes and Ward was harmless beyond a
reasonable doubt. (See People v. Garcia, supra, 46 Cal.App.5th at p.
180 [finding any error involving predicate acts was harmless given
the properly admitted evidence with regard to one predicate act and
the fact the defendant’s current conviction qualified as a predicate
act].)
Third, Detective Castaneda’s testimony regarding the
Facebook photograph depicting Johnson in the company of UGC
member Coleman was more tangential and indirect than the other
gang-related observations regarding Johnson, such as his tattoos
and Facebook posts, as outlined above. (See Discussion I, section
B.5.b., ante.)
Fourth, and finally, we discern no reversible error regarding
the detective’s testimony about the expectation that UGC members
will share crime-related proceeds. As previously discussed, this
type of testimony was background information, it did not involve
the disclosure of an out-of-court statement, and the detective could
rely on hearsay in forming his opinion and tell the jury that he did
so in general terms. (See Sanchez, supra, 63 Cal.4th at p. 699
[observing that the gang expert “provided general and admissible
evidence that if a nonmember sold drugs in a gang’s territory and
failed to pay tax, that person risked gang retaliation”]; see also
Discussion I, section B.3., ante.)
Moreover, the detective’s identification of one UGC member
(Darwin Nixon) as the source for his opinion about profit sharing
was fodder for the defense to convince the jury they should accord
less weight to this aspect of the detective’s testimony. (See
Sanchez, supra, 63 Cal.4th at p. 686 [noting the jury may accord
less weight to the views of an expert who relies on a single source
for his opinion].) To that end, both defendants presented experts
34
who contradicted Detective Castaneda’s testimony regarding the
sharing of profits by UGC gang members who commit crimes. (See
Veamatahau, supra, 9 Cal.5th at pp. 32-34 [noting that the
reliability or trustworthiness of an expert’s testimony is a separate
issue from its admissibility under the Sanchez rule and discussing
various ways the court and the parties can test the reliability of
expert testimony, including Evid. Code, § 402 hearings, cross-
examination, and the presentation of competing experts].)
Given that Detective Castaneda’s views on disbursement
were based on conversations with hundreds of gang members and
constituted permissible background information, we do not discern
any prejudice from the fact that defense counsel elicited the
testimony regarding Darwin Nixon. (See, generally, Thompkins,
supra, 50 Cal.App.5th at pp. 408-409 [observing that even though a
gang officer referenced at least once the existence of police reports
as the source of his testimony, he “would have learned much” from
his personal involvement in relevant investigations, and thus it
would be inaccurate to say he solely relied on police reports].)
In sum, we are confident the jury’s verdict on the gang
enhancements would have been the same in this case absent any
improperly admitted gang-related facts under Sanchez or Crawford.
We conclude that any error in admitting the foregoing additional
testimony was harmless beyond a reasonable doubt.
7. There is No Merit to Johnson’s Challenge to the
Prosecution’s Hypotheticals
To the extent Johnson challenges the prosecutor’s
presentation of “gigantic, compound hypotheticals,” he
acknowledges his challenge is entirely premised on his
Sanchez/Crawford arguments directed at the admissibility of the
underlying, gang-related facts and his assertion that the
hypothetical was “the sum product of this compound error.” As
35
such, our disposition of these underlying arguments also disposes of
Johnson’s challenge to the hypotheticals. (See Sanchez, supra, 63
Cal.4th at p. 676 [noting that the “distinction between generally
accepted background information and the supplying of case-specific
facts is honored by the use of hypothetical questions”]; People v.
Anthony, supra, 32 Cal.App.5th at p. 1136 [Sanchez permits experts
to testify to their opinions in response to hypothetical questions];
see also Thompkins, supra, 50 Cal.App.5th at p. 418 [finding an
expert’s opinion was properly admitted where “[m]ost statements he
made as the basis for his opinion either were not hearsay, were
supported by testimony from others that was not hearsay, or were
supported by admissible criminal records”].)
II
Sufficiency of the Evidence To Support the Gang
Enhancement Allegation
Steele contends the jury’s true finding on the gang
enhancement allegation must be reversed because there was
insufficient evidence the crimes were gang-related. Steele notes
that “[t]he crimes at issue had an obvious financial motive and
occurred outside of any gang territory.” As explained below, we
conclude that substantial evidence supports a finding that Steele
committed the charged crimes “in association with” the UGC gang.
A. Relevant Legal Principles
1. Standard of Review
“The standard of appellate review for determining the
sufficiency of the evidence supporting an enhancement is the same
as that applied to a conviction.” (People v. Weddington (2016) 246
Cal.App.4th 468, 483.) “We view the evidence in the light most
favorable to the prosecution, and presume in support of the
judgment the existence of every fact the trier could reasonably
36
deduce from the evidence.” (People v. Griffin (2004) 33 Cal.4th
1015, 1028.)
2. Elements of the Gang Enhancement Allegation
To prove a gang enhancement, the prosecution must establish
that the underlying crime was “committed for the benefit of, at the
direction of, or in association with any criminal street gang” (the
gang-related prong), “with the specific intent to promote, further, or
assist in any criminal conduct by gang members” (the specific intent
prong). (§ 186.22, subd. (b)(1); see People v. Albillar (2010) 51
Cal.4th 47, 59.)13 Because the first prong is worded in the
disjunctive, the gang enhancement may be imposed based on either
gang association, direction, or benefit. (People v. Weddington,
supra, 246 Cal.App.4th at p. 484.) The prosecution may rely on
expert testimony regarding criminal street gangs to establish the
crime was committed for the benefit of, or in association with, a
qualifying gang. (People v. Vang (2011) 52 Cal.4th 1038, 1048
[“ ‘[e]xpert opinion that particular criminal conduct benefited a
gang’ is not only permissible but can be sufficient to support the . . .
gang enhancement”]; see also People v. Albillar, supra, at p. 63[“[e]xpert opinion that particular criminal conduct benefited a gang
by enhancing its reputation for viciousness can be sufficient to raise
the inference that the conduct was ‘committed for the benefit of . . .
a[ ] criminal street gang’ within the meaning of § 186.22[, subd.]
(b)(1)”].)
13 In addition, the prosecution must prove the relevant group
meets the definition of a “criminal street gang” as defined in section
186.22, subdivision (f). (See Discussion I, section B.4.a., ante.) On
appeal, Steele focuses on the gang-related and specific intent prongs
of the gang enhancement; he does not challenge the sufficiency of
the evidence to support the “criminal street gang” element.
37
The expert’s testimony, however, “ ‘must be rooted in facts
shown by the evidence.’ ” (People v. Vang, supra, 52 Cal.4th at
p. 1045.) “[P]urely conclusory and factually unsupported opinions”
are insufficient to support a gang enhancement. (People v. Ramirez
(2016) 244 Cal.App.4th 800, 819-820; see People v. Vang, supra, at
p. 1046.)
B. There Was Sufficient Evidence To Support the Jury’s
Finding on the Gang Enhancement Allegation
The record supports a finding that Steele and Johnson
committed the underlying offenses as gang members acting in
association, thus satisfying the first, “gang related” prong of the
statute. Steele, who admitted membership in the UGC gang, and
was observed with various UGC related tattoos shortly before the
charged crimes, committed the crimes with Johnson, another UGC
member, as established by his tattoos, and Facebook statements
and photographs posted shortly before the instant offense. (See
People v. Albillar, supra, 51 Cal.4th at p. 62 [“[the] defendants came
together as gang members to attack [the victim] and, thus, . . . they
committed these crimes in association with the gang”]; People v.
Morales (2003) 112 Cal.App.4th 1176, 1198 [“the jury could
reasonably infer the requisite association from the very fact that
[the] defendant committed the charged crimes in association with
fellow gang members”].)
In addition, Detective Castaneda testified that robberies and
burglaries are among the UGC gang’s primary activities. (Cf.
People v. Ochoa (2009) 179 Cal.App.4th 650, 661-662 & fn. 7 [where
the gang’s primary activities included car theft, finding insufficient
evidence that the charged crime of carjacking was one of its primary
activities].) He established that UGC members are expected to, and
do, share the proceeds of their crimes. Johnson’s UGC tattoos
included tattoos signifying he was a member of a UGC
38
burglary/robbery crew. (People v. Ferraez (2003) 112 Cal.App.4th
925, 930 [a gang finding may be based upon circumstantial
evidence, and “[i]t is well settled that expert testimony about gang
culture and habits is the type of evidence a jury may rely on to
reach a verdict on a gang-related offense or a finding on a gang
allegation”].)
The fact that a gang member recognized for his participation
in the gang’s burglary/robbery crew joined together with a second
gang member to commit a home invasion robbery, coupled with the
evidence that burglary and robbery were among the gang’s primary
activities and its members were expected to share their ill-gotten
gains with the gang, satisfies the specific intent prong of section
186.22, subdivision (b)(1). (See People v. Albillar, supra, 51 Cal.4th
at p. 68 [finding substantial evidence the defendants acted with the
specific intent to promote, further, or assist the gang where they
intended to rape the victim, they assisted one another in
committing the crime, and they were each members of a criminal
street gang].) Indeed, as our Supreme Court has held, “if
substantial evidence establishes that the defendant intended to and
did commit the charged felony with known members of a gang, the
jury may fairly infer that the defendant had the specific intent to
promote, further, or assist criminal conduct by those gang
members.” (Id. at p. 68.)
To the extent Steele and Johnson presented their own gang
experts with contrary opinions, “[t]he credibility and weight of the
expert testimony was for the jury to determine, and it is not up to
us to reevaluate it.” (People v. Flores (2006) 144 Cal.App.4th 625,
633; see also People v. Albillar, supra, 51 Cal.4th at pp. 60, 63-64
[finding sufficient evidence to support the finding that a rape by
gang members was gang-related, despite the expert’s testimony
39
“that the ‘general view’ on rape by Latino street gangs ‘is that it is
frowned upon’ ”].)
Steele’s reliance on People v. Albarran (2007) 149 Cal.App.4th
214, to argue otherwise is misplaced. In Albarran, the defendant
and a second individual shot at a house during a private birthday
party. A divided panel concluded that a new trial motion should
have been granted because inflammatory gang evidence had been
introduced that “had no bearing on the underlying charges,” and
there was little or no evidence of the gang’s connection to the crime.
(Id. at pp. 227-228.) At trial, a sheriff’s deputy conceded he did not
know of a motive for the shooting. (Id. at p. 227.) The second
shooter was never caught or identified, leading the court to observe
that the fact that more than one shooter was involved, without any
additional information, did not demonstrate “one way or another
that the crime was gang motivated.” (Ibid., fn. 9.)
Unlike Albarran, here the evidence of gang membership,
behavior, and primary activities was substantial and was tailored to
the charges. Both Steele and Johnson were identified as gang
members and convicted for their role in the home invasion robbery.
The totality of the evidence was sufficient for the jury to find that
they committed the underlying offenses “in association” with the
UGC gang and with the specific intent to promote, further, or assist
in criminal conduct by the gang. That the circumstances also might
“ ‘reasonably be reconciled with a contrary finding does not warrant
a reversal of the judgment.’ ” (People v. Thomas (1992) 2 Cal.4th
489, 514; cf. People v. Morales, supra, 112 Cal.App.4th at p. 1198
[observing that “the typical close case is one in which one gang
member, acting alone, commits a crime”].)
40
III
Imposition of Sentences for Both the Firearm and
Gang Enhancements Against Steele
As part of the second amended information, in addition to the
gang enhancement, the prosecutor alleged firearm enhancements
under subdivision (e)(1) of section 12022.53 against both Steele and
Johnson. Subdivision (e)(1) makes unarmed principals subject to
any of the personal use enhancements listed in subdivisions (b), (c),
and (d), if the prosecution establishes that (1) the person violated
subdivision (b) of section 186.22 (i.e., the criminal street gang
enhancement), and (2) any principal in the offense personally used
a weapon as described in subdivisions (b) through (d). (§ 12022.53,
subd. (e)(1); People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1424-
1426.) Here, the jury found true the allegations as pleaded against
each appellant, i.e., that a principal personally used a firearm in the
commission of the offense.
Under section 12022.53, subdivision (e)(2), “[a]n enhancement
for participation in a criminal street gang . . . shall not be imposed
on a person in addition to an enhancement imposed pursuant to
this subdivision, unless the person personally used or personally
discharged a firearm in the commission of the offense.” (Italics
added.) There was no finding by the jury that either Steele or
Johnson personally used a firearm in committing the charged
crimes. Nevertheless, the trial court imposed both a section
12022.53 firearm enhancement and a section 186.22 gang
enhancement against Steele based on the court’s own finding that
“[Steele] was clearly the lead actor in this,” and “was the one with
the gun.”
Steele argues there was insufficient evidence to support a
finding that he “personally” used a firearm. In light of the absence
of any jury finding on the question of personal use, we asked the
41
parties to file supplemental briefs to address whether the trial court
was authorized to (1) make a finding that Steele personally used a
firearm during the underlying offense; and (2) impose both a life
term for the gang enhancement pursuant to section 186.22,
subdivision (b)(4), and a consecutive 10-year sentence for the
firearm enhancement pursuant to section 12022.53, subdivision (e).
In their supplemental letter briefs, both parties recognize the
trial court lacked the authority to make the “personal use” finding.
We agree. (See § 12022.53, subd. (j) [“For the penalties in this
section to apply, the existence of any fact required under
subdivision (b), (c), or (d) shall be alleged in the accusatory pleading
and either admitted by the defendant in open court or found to be
true by the trier of fact”].) Respondent therefore concedes the trial
court erred in imposing both enhancements against Steele. (See
People v. Gonzalez, supra, 180 Cal.App.4th at p. 1427.) We agree
that under section 12022.53, subdivision (j), the enhancement with
the greater penalty term must be imposed, while the other must be
stricken. (People v. Brookfield (2009) 47 Cal.4th 583, 596.)
Accordingly, the 10-year enhancement imposed under section
12022.53, subdivision (e)(1), must be stricken from Steele’s
sentence. (People v. Brookfield, supra, at p. 597 [“The trial court
erred in sentencing [the] defendant to both the life term under
[§] 186.22, [subd.] (b)(4) and the 10-year sentence enhancement
under [subds.] (b) and (e)(1) of [§] 12022.53 [and] [t]he Court of
Appeal was correct in ordering the 10-year sentence enhancement
stricken”].)14
14 We note that in pronouncing its sentence, the trial court
sentenced Steele under section 186.22 to a base term of 15 years to
life, doubled to 30 years for a strike prior. However, Steele’s
current abstract of judgment does not reflect the jury’s true finding
on the gang enhancement. Upon issuing an amended abstract of
42
IV
Propriety of Staying the Sentence on Johnson’s
Gang Enhancement, While Imposing Sentence on the
Firearm Enhancement
In its sentencing memorandum, the prosecutor stated that
because Johnson was not the gunman (and thus did not personally
use a firearm), the court could not impose both the firearm and
gang enhancement against him; instead, it must choose one. The
prosecution recommended that the trial court impose a sentence of
15 years to life for the home invasion offense, thereby utilizing the
gang enhancement penalty term.
Conceding the robbery, and acknowledging the use of a
firearm by a principal, Johnson’s counsel argued a determinate
term was appropriate and suggested the low term of three years for
the robbery itself. Defense counsel argued against the imposition of
the gang enhancement penalty, asserting that a life term would be
draconian and unfair.
In response to the parties’ arguments, the trial court
commented on Johnson’s youth as a mitigating factor, noting that
he had turned 18 years of age just months before the incident. The
court highlighted the fact that Johnson did not personally use a
firearm and was acting at the direction of the older robber. In
aggravation, the trial court pointed to a prior juvenile adjudication
suffered by Johnson, the vulnerability of the victims, and Johnson’s
willingness to repeatedly follow the directions of the gunman
throughout the home invasion robbery. As a result, the trial court
selected the upper term of nine years for the robbery in count 1 and
judgment with the modifications ordered in our opinion, the trial
court should ensure that Steele’s abstract reflects imposition of the
gang enhancement.
43
added a 10-year term for the section 12022.53 firearm
enhancement, for an aggregate term of 19 years. The court stated it
was “choosing to stay [section] 186.22[, subdivision (b)], the gang
allegation, given its imposition of the gun allegation,” and noted
that “[i]t may not impose both [enhancements].”
On appeal, Johnson contends the trial court lacked the
authority to stay the gang enhancement, and requests the matter
be remanded with directions for the trial court to instead strike the
gang enhancement.
As previously explained (see Discussion III, ante), a vicarious
liability enhancement under section 12022.53, subdivision (e), may
not be imposed in addition to the gang enhancement. Instead, the
enhancement with the longest term must be imposed and the other
enhancement must be stricken. (People v. Brookfield, supra, 47
Cal.4th at pp. 596-597.) In this case the enhancement with the
longest term is the gang enhancement, which would mean the trial
court was obligated to impose the gang enhancement penalty
against Johnson, while striking the firearm enhancement.
Trial courts, however, are authorized to strike the additional
penalties provided for under section 186.22 and section 12022.53 in
the interests of justice. (§§ 186.22, subd. (g) [“Notwithstanding any
other law, the court may strike the additional punishment for the
enhancements provided in this section . . . in an unusual case where
the interests of justice would best be served”]; 12022.53, subd. (h)
[“The court may, in the interest of justice pursuant to [s]ection 1385
and at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section”].)
The trial court began Johnson’s sentencing hearing by
acknowledging that it had read both sentencing memoranda and
was “fully aware” it had “wide discretion,” including the discretion
“whether or not to impose the gang allegation; whether or not to
44
impose the gun allegation.” Neither the sentencing memoranda,
nor the probation officer’s report, however, delineated the court’s
discretion to strike one or both enhancements in the interests of
justice. While the trial court acknowledged it could not impose both
enhancements against Johnson, the reference to its discretion was
ambiguous and does not clearly reflect that it was aware it had the
latitude to strike both enhancements. Its comments preceding
pronouncement of sentence suggest it found a life term excessive in
light of Johnson’s young age and role in the offense. Given this
record, we conclude that a remand for resentencing is appropriate.
(See People v. Salvador (2017) 11 Cal.App.5th 584, 594 [where a
sentencing error occurred, “providing the trial court with a fresh
opportunity for sentencing is the most efficient and respectful
solution”].) Upon remand, if the trial court determines that the
interests of justice would be served by striking either or both
enhancements, it should so state on the record. If it does not find
such grounds exist, the court must impose the enhancement with
the longest penalty term, which in this case would be the gang
enhancement penalty provision, and strike the firearm
enhancement.
V
Stayed Sentences Under Section 654
As noted in our procedural history, the jury found both
appellants guilty as charged in count 2 of the information and found
true the associated firearm and gang enhancement allegations. At
sentencing, the trial court ordered the sentence “stayed” on count 2
pursuant to section 654, with regard to each appellant. To
effectuate section 654, however, the trial court must first impose
the full term and then stay execution of that term. The failure to do
so—or the imposition of an incorrect term—amounts to an
unauthorized sentence. (People v. Relkin (2016) 6 Cal.App.5th
451188, 1198; People v. Alford (2010) 180 Cal.App.4th 1463, 1469-
1472.)15 A claim that a sentence is unauthorized “is subject to
judicial correction whenever the error comes to the attention of the
reviewing court.” (People v. Dotson (1997) 16 Cal.4th 547, 554,
fn. 6; In re Harris (1993) 5 Cal.4th 813, 842.)
Accordingly, upon remand, the trial court shall impose
sentence on count 2 with regards to each appellant prior to staying
the term under section 654.
VI
Implied Striking of the One-year Prior Prison Term
Enhancement as to Steele
The trial court found true allegations that Steele suffered a
prior “strike” conviction, a prior serious felony conviction, and that
he had served a prior prison term. During the sentencing
proceedings, the trial court imposed sentence with regard to both
the strike prior and the prior serious felony conviction, but made no
mention of the prior prison term it found true pursuant to section
667.5, subdivision (b).
Effective January 1, 2020, Senate Bill No. 136 amended
section 667.5, subdivision (b), to apply only where the prior prison
term was served “for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions
Code.” (§ 667.5, subd. (b); see Sen. Bill No. 136 (2019-2020 Reg.
Sess.) § 1.) Because the judgment in the current case is not yet
final, Senate Bill No. 136 applies to Steele. (People v. Winn (2020)
44 Cal.App.5th 859, 872-873 [Senate Bill No. 136 applies to nonfinal
15“[O]therwise if the nonstayed sentence is vacated, either on
appeal or in a collateral attack on the judgment, no valid sentence
will remain.” (People v. Alford, supra, 180 Cal.App.4th at p. 1469.)
46
judgments on appeal].) Accordingly, Steele’s one-year prior prison
term enhancement must be stricken.
VII
Presentence Custody Credits
Steele and Johnson claim they are each entitled to two
additional days of presentence custody credits. Respondent agrees,
as do we. Appellants were arrested on September 30, 2015, and
sentenced on November 20, 2019. Including the arrest and
sentencing dates, appellants were in actual custody for 1,513 days,
rather than 1,511 days as calculated by the trial court. Accordingly,
appellants are each entitled to a total of 1,513 days of actual
custody credit. (§ 2900.5; People v. Morgain (2009) 177 Cal.App.4th
454, 469 [“A defendant is entitled to credit for the date of his arrest
and the date of sentencing”].)
DISPOSITION
As to appellant Steele, the judgment of conviction is affirmed.
The sentence is vacated and the matter is remanded to the trial
court with directions to: (1) strike the 10-year firearm enhancement
imposed in count 1 pursuant to section 12022.53, subdivision (e)(1);
(2) impose sentence for count 2, prior to staying the term under
section 654; (3) strike the prior prison term enhancement under
section 667.5, subdivision (b); and (4) award Steele two additional
days of presentence custody credits, for a total of 1,513 days of
actual custody credit. The trial court is directed to prepare an
amended abstract of judgment reflecting the changes to Steele’s
sentence and forward a copy to the Department of Corrections and
Rehabilitation.
As to appellant Johnson, the judgment of conviction is
affirmed. The sentence is vacated and the matter is remanded to
47
the trial court for resentencing on count 1. As to count 1, the trial
court shall exercise its discretion to consider whether to strike the
additional punishment for either the gang enhancement, or the
firearm enhancement, or both, in the interests of justice pursuant to
section 186.22, subdivision (g), and/or section 12022.53, subdivision
(h). In the event the trial court determines that the interests of
justice would be served by striking either or both enhancements, it
shall so state on the record. If the trial court does not find such
grounds exist, the court must impose the enhancement with the
longest penalty term, which in this case would be the gang
enhancement penalty provision under section 186.22, and strike the
firearm enhancement under section 12022.53. The trial court also
shall impose sentence for count 2, prior to staying the term under
section 654, and award Johnson two additional days of presentence
custody credits, for a total of 1,513 days of actual custody credit.
The trial court is directed to prepare an amended abstract of
judgment reflecting the changes to Johnson’s sentence and forward
a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
ROTHSCHILD, P. J. CHANEY, J.
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
48