People v. Martinez ( 2018 )

Filed 1/23/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E066299
v. (Super.Ct.No. FWV1600421)
HECTOR MARTINEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown,
Judge. Affirmed in part; reversed in part.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Arlene A. Sevidal, Kristen Ramirez and Minh U. Le, Deputy Attorneys General, for
Plaintiff and Respondent.
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A jury found defendant and appellant Hector Martinez guilty of (1) driving or
taking a vehicle valued at over $950, without the owner’s consent (Veh. Code, § 10851,
subd. (a)); and (2) possessing burglary tools (Pen. Code, § 466). In regard to the vehicle
offense, the jury found true the allegation that the crime was committed in association
with a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1)(A).) The court found
true the allegation that defendant suffered a prior conviction for driving or taking a
vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)). (Pen. Code,
§ 666.5, subd. (a).) The trial court also found true the allegations that defendant
suffered three prior convictions for which he served prison terms. (Pen. Code, § 667.5,
subd. (b).) The trial court sentenced defendant to prison for a term of eight years.
Defendant contends the gang enhancement should be reversed due to the gang
expert’s reliance on testimonial hearsay and case-specific hearsay. The People concede
the gang expert’s testimony included inadmissible hearsay, but assert the errors were
harmless. We reverse the judgment in part.
FACTUAL AND PROCEDURAL HISTORY
A. SUBSTANTIVE CRIME
On February 3, 2016, at approximately 4:30 a.m., City of Ontario Police Officer
Devey watched a truck being parked at a motel in Ontario. The truck had been reported
stolen in Chino. The officer saw defendant and Jorge Gonzalez1 walk away from the
1In the reporter’s transcript, Gonzalez’s name is spelled Gonzales and
Gonzalez. In the clerk’s transcript, in the felony complaint, Gonzalez’s name is spelled
Gonzalez with an alias of Gonzales. We use the Gonzalez spelling.
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truck holding coffee and a box of donuts; it was unclear which man had been driving the
truck and which man was the passenger. The officer searched defendant and found a
couple of shaved keys, which can be used to steal cars. The officer did not find keys for
the truck in the possession of defendant or Gonzalez. The owner of the truck did not
give defendant or Gonzalez permission to take his truck.
B. GANG ENHANCEMENT
Chino Police Officer Chris Chinnis testified as a gang expert. The Chino Sinners
is a criminal street gang. One of the gang’s primary activities is stealing cars. The
Chino Sinners claim the entire City of Chino as their gang territory.
The Chino Police Department had eight field identification cards for Gonzalez:
(1) in 2005, Gonzalez was with members of the Chino Sinners; (2) on September 12,
2015, Gonzalez admitted being a member of the Chino Sinners; (3) on November 1,
2015, Gonzalez told Officer Chinnis that Gonzalez lost an eye during a shooting
involving a rival gang in Pomona; (4) on November 7, 2015, Gonzalez said he was
going to McLeod Park in Chino to “make sure there was no quote ‘niggers’ at his park”;
(5) Gonzalez was contacted on December 19, 2015; (6) Gonzalez was contacted on
January 9, 2016; (7) on January 12, 2016, Gonzalez said he joined the Chino Sinners in
2010, that he had earned some gang tattoos, and that he planned “to put more work in
for the gang in order to earn his skull and crossbones tattoo”; and (8) on January 24,
2016, Gonzalez admitted being a member of the Chino Sinners. Chinnis did not
complete any of the eight field identification cards concerning Gonzalez.
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Officer Chinnis looked at the field identification card dated January 12, 2016, to
refresh his recollection concerning Gonzalez’s tattoos. Gonzalez had (1) “Chino”
tattooed on the back of his head; (2) various skulls on his arms; (3) “IE,” as in Inland
Empire; and (4) “CSR,” referring to Chino Sinners rifa, rifa means “untouchable” or
“baddest.”
Officer Chinnis opined that defendant was an associate of the Chino Sinners.
Defendant was heard on wiretapped phone calls discussing drug activity with members
of the Chino Sinners. Defendant was related to two members of the Chino Sinners. On
December 7, 2012, defendant was found in a car with drugs and with Byron Taylor, a
Chino Sinners gang member. Chinnis read a report about the December 7 incident and
discussed it with his partner, who was present during the stop. Chinnis did not know if
defendant had any tattoos associated with the Chino Sinners.
Officer Chinnis opined that defendant’s vehicle theft in the instant case was
committed in association with the Chino Sinners due to Chinnis’s “knowledge of
[defendant], Mr. Gonzalez, [his] knowledge of the Chino Sinners gang, [his] knowledge
of this incident, the fact that both individuals being documented as associates and/or
members working together out in the middle of the night with burglary tools, driving a
stolen vehicle. The mere fact that they’re driving a stolen vehicle would allow then to
commit additional crimes and not be detected, putting in work for the gang. Mr.
Gonzalez stated in previous contacts he’s trying to earn more tattoos, more respect by
putting in work for the gang, and this is a good opportunity for him to put in work with
another known associate to show his allegiance to the gang, as well as a way to earn
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money, as well as to show they can contribute some money back up to the Mexican
Mafia and be in good graces and good standing with the Mexican Mafia.” Chinnis was
not present when defendant was stopped and arrested in the instant case; however, the
Ontario Police Department contacted the Chino Police Department for assistance with
the case.
C. MOTION TO EXCLUDE
Prior to Officer Chinnis testifying, defendant’s trial counsel moved to exclude
Chinnis’s testimony concerning Gonzalez’s field identification cards on the basis of
hearsay. Defense counsel asserted Chinnis did not write the cards and therefore,
testimony about the cards would be hearsay. The trial court responded that experts can
rely on hearsay.
Defense counsel argued that the contents of the field identification cards
constituted testimonial hearsay, and therefore it would violate Crawford2 to rely upon
the cards. The trial court explained that not every field identification card is completed
for the purpose of prosecution and therefore, discussing the cards’ contents would not
violate Crawford. For example, a card could be completed for the purpose of later
classifying a person in prison.
2 Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
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DISCUSSION
A. CONTENTION AND CONCESSION
Defendant asserts, “To the extent the hearsay evidence included case-specific
hearsay, it required compliance with state evidence rules.” Defendant then cites to
People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). The People concede Sanchez was
violated by Officer Chinnis’s testimony concerning (1) the wiretapped conversation in
which defendant was discussing drugs; (2) the December 7, 2012, traffic stop in which
defendant was found in a car with Byron Taylor, a Chino Sinners gang member; (3) the
field identification cards concerning Gonzalez; and (4) Gonzalez’s tattoos.3
B. LAW
Hearsay “is evidence of a statement that was made other than by a witness while
testifying at the hearing and that is offered to prove the truth of the matter stated.”
(Evid. Code, § 1200.) In Sanchez our Supreme Court explained that expert witnesses
can testify about their general knowledge, which has been gained from hearsay.
However, expert witnesses cannot testify about case-specific facts learned via hearsay
“unless they are independently proven by competent evidence or are covered by a
hearsay exception.” (Id. at pp. 687.) For example, an expert could testify that a
diamond is a symbol adopted by a particular street gang because that constitutes general
information. However, an expert could not testify that “an associate of the defendant
3 Sanchez was filed on June 30, 2016. (Sanchez, supra, 63 Cal.4th at p. 665.)
Officer Chinnis testified on May 9, 2016. Thus, Sanchez had not been issued at the time
of Chinnis’s testimony. Therefore, although a Sanchez-specific objection or motion was
not raised, we will address the issue.
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had a diamond tattooed on his arm.” The tattoo is case-specific evidence, which would
need to be established by a witness who saw the tattoo, or by an authenticated
photograph, or it would need to fall within a hearsay exception. (Id. at p. 677, 687.)
We apply the abuse of discretion standard of review. (People v. Clark (2016) 63
Cal.4th 522, 590.)
C. ANALYSIS
Officer Chinnis testified about defendant being heard on wiretapped telephone
calls discussing drug activity with members of the Chino Sinners. The statements about
drug activity were made outside of the court and were offered for their truth, thus
causing the evidence to be hearsay. (See Sanchez, supra, 63 Cal.4th at p. 684 [case-
specific facts are offered for their truth].) A transcript of the wiretapped phone call was
not admitted into evidence. In other words, the phone call was not independently
proven by competent evidence. The People do not assert that a hearsay exception is
applicable to this evidence. (See Id., at p. 686 [experts can relate as true case specific
facts that “are covered by a hearsay exception”].)
Officer Chinnis testified about defendant being found in a car on December 7,
2012, with drugs and with Byron Taylor, a Chino Sinners gang member. Chinnis read a
report about the December 7 incident and discussed it with his partner, who was present
during the stop. Thus, Chinnis did not have personal knowledge of the stop. Chinnis’s
testimony about the stop came from statements by another person that were made
outside of court, and the information was offered for its truth, thus causing the evidence
to be hearsay. (See Sanchez, supra, 63 Cal.4th at p. 684 [case-specific facts are offered
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for their truth].) Chinnis’s partner did not testify about the stop, therefore there was not
independent proof of the stop. The People do not argue that a hearsay exception is
applicable to this evidence. (See Id. at p. 686 [experts can relate as true case specific
facts that “are covered by a hearsay exception”].)
Officer Chinnis testified about field identification cards that he did not fill-out.
The cards contained information specific to Gonzalez, such as Gonzalez having joined
the Chino Sinners in 2010. The field identification card information was derived from
other people’s writings that were made outside of court and the information was offered
for its truth, thus causing the evidence to be hearsay. (See Sanchez, supra, 63 Cal.4th at
p. 684 [case-specific facts are offered for their truth].) The field identification cards
were not offered as evidence. Therefore, the contents of the field identification cards
were not independently proven by competent evidence. The People do not argue that a
hearsay exception is applicable to this evidence. (See Id. at p. 686 [experts can relate as
true case specific facts that “are covered by a hearsay exception”].)
Officer Chinnis looked at the field identification card dated January 12, 2016, to
refresh his recollection concerning Gonzalez’s tattoos. It does not appear that Chinnis
had personal knowledge of Gonzalez’s tattoos; his knowledge was derived from a
writing that was made outside of court by another person, and Chinnis’s testimony
about the tattoos was offered for its truth, thus causing the evidence to be hearsay. (See
Sanchez, supra, 63 Cal.4th at p. 684 [case-specific facts are offered for their truth].)
Photographs of Gonzalez’s tattoos or eyewitness testimony concerning the tattoos were
not admitted as evidence. Therefore, the tattoos were not independently proven by
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competent evidence. The People do not argue that a hearsay exception is applicable.
(See Id. at p. 686 [experts can relate as true case specific facts that “are covered by a
hearsay exception”].)
The foregoing evidence violated Sanchez because (1) it constituted hearsay, (2) it
was case specific in that the evidence concerned particular people alleged to have been
involved in this particular crime, (3) the hearsay was not independently proven by
competent evidence, and (4) there is no argument that the hearsay falls within a hearsay
exception. (Sanchez, supra, 63 Cal.4th at pp. 676, 680, 684-686.) In sum, Sanchez was
violated by Officer Chinnis’s testimony concerning the foregoing topics. Thus, the trial
court erred.
D. PREJUDICE
The improper admission of hearsay is an error of state law. The improper
admission of testimonial hearsay is an error of federal law, in that it violates the
Constitution’s confrontation clause. (Sanchez, supra, 63 Cal.4th at pp. 686, 698.)
Under the Sixth Amendment’s Confrontation Clause, a criminal defendant has
the right to confront witnesses testifying against him/her. This right is not limited to in-
court testimony. (Crawford v. Washington (2004) 541 U.S. 36, 42, 50-51.) If an
accuser makes a formal out-of-court statement to a government officer, then the
defendant’s right to confront the accuser is triggered; the out-of-court “testimony”
cannot be introduced via hearsay because the defendant has the right to confront the
accuser. (Id. at p. 51.) Out-of-court testimonial statements include “ ‘affidavits,
custodial examinations, prior testimony that the defendant was unable to cross-examine,
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or similar pretrial statements that declarants would reasonably expect to be used
prosecutorially.’ ” (Ibid.)
The People concede Officer Chinnis’s testimony about the wiretap and
December 7, 2012, traffic stop constitute testimonial hearsay because that evidence
resulted from police investigations into particular crimes. The People assert the hearsay
derived from the field identification cards, including the descriptions of Gonzalez’s
tattoos, is not testimonial because field identification cards can be completed for the
purpose of gathering general intelligence, not for the purpose of investigating a
particular case.
For the sake of judicial efficiency, we accept the People’s concession: the
wiretap and December 7, 2012, traffic stop constitute testimonial hearsay, while the
field identification card hearsay is non-testimonial. The field identification card
evidence is not testimonial because Officer Chinnis explained that field identification
cards were sometimes completed for the purpose of gathering general intelligence—not
for any particular case—and other times they were completed as part of a criminal
investigation. It is unclear in what context the field identification cards for Gonzalez
were created. In other words, Gonzalez’s cards may have been created in casual, non-
testimonial situations.
Defendant asserts the error is prejudicial under both the state and federal
prejudice standards. In Sanchez, “much of the hearsay was testimonial,” therefore the
high court applied the federal prejudice standard in conducting its harmless error
analysis. (Sanchez, supra, 63 Cal.4th at p. 698.) Because the instant case involves a
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mix of testimonial and non-testimonial hearsay, we will apply the federal standard.
Accordingly, we examine whether the hearsay error was harmless beyond a reasonable
doubt. (Ibid.)
“The gang enhancement applies to one who commits a felony ‘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.’ (Pen.
Code, § 186.22, subd. (b)(1).)”4 (Sanchez, supra, 63 Cal.4th at p. 698.)
Without the hearsay evidence from the field identification cards, there is little
proof that Gonzalez was a member of the Chino Sinners. Officer Chinnis testified that
“in preparation for [his] testimony, [he] investigated a Jorge Gonzalez.” Chinnis opined
that Gonzalez is an active member of the Chino Sinners. Chinnis based that opinion “on
other officers’ investigations, [Chinnis’s] review of police reports involving Mr.
Gonzalez, as well as [Chinnis’s] review of FI cards that [he has] seen that have come
through consistently.” In other words, Chinnis’s opinion that Gonzalez is a gang
member was based entirely upon hearsay because it was based upon other police
officers’ investigations, reports, and field identification cards. Gonzalez then set forth
4 The enhancement also requires proof that “the gang (1) is an ongoing
association of three or more persons with a common name or common identifying sign
or symbol; (2) has as one of its primary activities the commission of one or more of the
criminal acts enumerated in the statute; and (3) includes members who either
individually or collectively have engaged in a ‘pattern of criminal gang activity’ by
committing, attempting to commit, or soliciting two or more of the enumerated offenses
(the so called ‘predicate offenses’) during the statutorily defined period.’ ” (Sanchez,
supra, 63 Cal.4th at p. 698.) Defendant raises no issue with Officer Chinnis’s
background testimony concerning general gang behavior and attributes.
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the information from the field identification cards to explain how it helped form his
opinion. Without the erroneously admitted case-specific hearsay, there is little support
for Chinnis’s opinion that Gonzalez is a gang member.
In regard to defendant, Officer Chinnis opined that defendant was an active
participant in the Chino Sinners based upon Chinnis’s “knowledge of [defendant’s]
association and [defendant’s] past criminal history.” Chinnis explained how the
wiretapped telephone call and December 7, 2012, traffic stop caused him to conclude
defendant actively participated in the Chino Sinners. Additionally, Chinnis explained
that defendant has relatives who are members of the Chino Sinners. Without the
erroneously admitted hearsay evidence, i.e., the wiretap and 2012 traffic stop, Chinnis’s
opinion that defendant is an active participant in the Chino Sinners is based upon
defendant having relatives who are members of the gang.
Without the hearsay evidence, the record reflects defendant committed a crime
that is a primary activity of the Chino Sinners; the crime was committed within the City
of Chino, which is the Chino Sinners’ territory; and defendant has family members who
are members of the Chino Sinners. There is no evidence that defendant is a member of
the Chino Sinners, that he is close with his relatives who are members of the Chino
Sinners, or that Gonzalez is a member of the Chino Sinners. Thus, other than the place
and type of crime, there is nothing tying the instant crime to the gang. Further, there is
nothing showing defendant knew he was in Chino Sinners’ territory or knew that he was
committing a crime that Chino Sinners’ members tend to commit. Therefore, there is
little proof that defendant had the specific intent to promote, further, or assist in any
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criminal conduct by gang members (§ 186.22, subd. (b) Because there is little proof of
specific intent without the erroneously admitted hearsay, we cannot conclude beyond a
reasonable doubt that the hearsay error did not contribute to the verdict obtained.
(Chapman v. California (1967) U.S. 18, 24.) In sum, the error was prejudicial.
The People assert the error was not prejudicial because (1) defendant was
arrested with Gonzalez, who is a member of the Chino Sinners; (2) defendant was
arrested in Chino Sinners’ territory; (3) vehicle theft is a primary activity of the Chino
Sinners; and (4) the vehicle theft would permit defendant and Gonzalez to commit
additional crimes in support of the gang. The People fail to explain what properly
admitted evidence supports a finding that Gonzalez is a member of the Chino Sinners.
Our review of the record reflects only inadmissible hearsay establishing Gonzalez’s
gang membership. Without that evidence the record reflects that defendant committed a
crime in gang territory and that gang members tend to commit the same crime. This
evidence fails to establish that defendant had the specific intent to promote, further, or
assist in any criminal conduct by gang members (§ 186.22, subd. (b)(1)) because it fails
to show defendant had any knowledge or awareness that he was in gang territory
committing a crime that gang members tend to commit. In sum, we find the People’s
argument to be unpersuasive.
DISPOSITION
The gang enhancement (§ 186.22, subd. (b)(1)(A)) in count 1 is reversed. The
trial court is directed to issue an amended abstract of judgment and forward the
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amended abstract to the appropriate agency/agencies. In all other respects, the judgment
is affirmed.
CERTIFIED FOR PUBLICATION
MILLER
Acting P. J.
We concur:
SLOUGH
J.
FIELDS
J.
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