The People v. Valadez

Filed 9/27/13
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B239983
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA 368836)
v.
DANIEL VALADEZ et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County,
William N. Sterling, Judge. Affirmed with modifications.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant Daniel Valadez.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant
and Appellant for Frank Uribe.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell, Thomas C.
Hsieh and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
******
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of parts 1 and 3 through 8 of the Discussion.
Appellants Frank Uribe and Daniel Valadez challenge their convictions for
conspiring to commit the crimes of shooting from a vehicle and assault with a
semiautomatic firearm and for possession of a firearm by a felon, along with gang and
other enhancements. They raise a host of alleged errors, both together and individually. 1
In the published portion of this opinion, we reject their evidentiary and confrontation
clause challenges to the prosecution‟s gang expert witness. In the unpublished portion,
we find no prejudicial error on any other ground. We affirm. We modify the judgment
to reflect additional presentence credits as provided herein.
PROCEDURAL HISTORY
Appellants were charged with conspiracy to commit the crimes of shooting from a
vehicle and assault with a semiautomatic firearm (Pen. Code, §§ 182, subd. (a)(1), 245,
subd. (b), 12034, subd. (c) [repealed eff. Jan. 1, 2012, and reenacted as § 26100 without
substantive change]),2 and being felons in possession of a firearm (§ 12021, subd. (a)(1)
[repealed eff. Jan. 1, 2012, and reenacted as § 29800, subd. (a)(1) without substantive
change]).3 It was alleged that the acts were committed for the benefit of, at the direction
of, and in association with a criminal street gang with the specific intent to promote,
further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(B)). It
was also alleged as part of count 1 that Valadez was armed with a firearm (§ 12022, subd.
(a)(1)), and as part of counts 1 and 2 that he had incurred a prior serious or violent felony
1 They have also indicated they join each other‟s arguments.
2 Undesignated statutory citations are to the Penal Code.
3 In support of the conspiracy count, the following overt acts were alleged: “On or
about March 6, 2010 at approximately 1:50 A.M., Frank Uribe, Daniel Valdez [sic],
and/or one or more unidentified co-conspirators entered rival gang territory claimed by
the Locke Street criminal street gang”; “At the time they entered Locke Street gang
territory, Frank Uribe, Daniel Valdez [sic], and/or one or more unidentified co-
conspirators were wearing bandanas covering the lower portion of their faces”; “On or
about March 6, 2010 at approximately 1:50 A.M., Frank Uribe, Daniel Valdez [sic],
and/or one or more unidentified co-conspirators was armed with a Glock semiautomatic
firearm, serial # ATG469.” A fourth overt act was stricken.
2
“strike” conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious
felony conviction (§ 667, subd. (a)(1)).
Appellants stipulated to their prior felony convictions and following trial, a jury
convicted appellants as charged and found the firearm and gang allegations true. Valadez
was sentenced to a state prison term of 23 years on count 1 and his sentence on count 2
was stayed, and Uribe was sentenced to a state prison term of 14 years on count 1 and his
sentence on count 3 was stayed. In addition to imposing various fines and fees, the court
granted each appellant 852 days of presentence custody credit, which consisted of 742
actual days and 110 days of conduct credit. Both appellants timely appealed.
STATEMENT OF FACTS
1. Prosecution Evidence
Around 1:50 a.m. on March 6, 2010, Los Angeles Police Department (LAPD)
Officers Richard Wilson and Peter Bueno were heading east on Ithaca Avenue in El
Sereno while on patrol. They each saw a white vehicle on Ithaca Avenue with its lights
off, driving “extremely slow,” about five miles per hour in their direction. There were no
other people or traffic in sight. The officers each shined a spotlight on the car and saw
Uribe in the driver‟s seat and Valadez in the front passenger seat wearing green bandanas
covering the lower portion of their faces, which they pulled down as the officers drove
by.
The car accelerated as it passed the officers and Wilson drove in reverse down
Ithaca Avenue to follow it. It turned down Belleglade Avenue, and Wilson completed a
three-point turn and pursued it. It came to a rolling stop at Alhambra and Belleglade
Avenues, at which point the officers saw Valadez, the front passenger, throw a black or
blue steel handgun out the passenger window. After that, the officers saw furtive
movements in the car. The car turned onto Alhambra Avenue, where the officers
conducted a traffic stop near Valley Boulevard and requested a backup unit.
3
After additional officers arrived and took appellants into custody, Officer Lowe4
drove Officer Bueno back to Alhambra and Belleglade Avenues, where Officer Lowe
recovered a black semiautomatic pistol from where Officer Bueno had seen the gun
tossed from the car. It was fully loaded with 16 rounds; it was not registered to either
appellant and no usable fingerprints were recovered from it. After a search, three
bandanas were recovered from the car: a green bandana from under the driver‟s seat; and
one green and one blue bandana from under the front passenger seat.
Officers ran the car‟s license plate and learned it had possibly been carjacked in
West Covina, although Officer Wilson did not intend to arrest appellants only for
carjacking. West Covina officers briefly took custody of appellants, but no carjacking or
car theft charges were filed.
In the transcript of the radio transmission between Officer Bueno and dispatch,
there was no mention at any time of a gun being tossed from appellants‟ car. Officer
Bueno testified it would have been important information to broadcast when reasonable
and safe to do so, but at the time he did not share that information because he wanted to
keep eyes on appellants, who were making furtive movements and possibly reaching for
another weapon. The reports prepared by Officers Bueno and Wilson also did not state
appellants were driving slowly with headlights off. Neither officer recalled Officer Lowe
being on the radio that night or calling him on his cell phone before he arrived on the
scene.
The prosecution called Officer Allan Krish as a gang expert witness, who testified
appellants were members of a gang called “Lowell Street,” which split from a larger gang
called “El Sereno” in the 1980‟s. Krish had been an officer for six and a half years and
had been assigned to a gang enforcement division from March 2009 to January 2011.
Part of that position was to keep up to date on gang activities in the Hollenbeck division
by gathering intelligence on gangs in the area; identifying and photographing gang
members; tracking gang members and their activities; working with parole and probation
4 Apparently Officer Lowe‟s first name does not appear in the trial record.
4
officers and gang detectives; conducting probation, parole, and compliance searches on
gang members; and investigating gang-related crimes. Officer Krish had approximately
40 hours of training at the Los Angeles Police Academy on gang awareness, including
gang terminology, culture, dress, and behavior. He also attended a four-day training held
by the California Gang Investigators‟ Association in late 2009. And he had contact with
gang members on a daily basis, which could be “nothing more than [a] casual
conversation,” during which he would ask them if they‟d be willing to talk and if they
agreed, he would speak with them. He explained the importance of these interactions:
“As a gang officer, when you are assigned to monitor a specific gang or area, you get a
lot of information by just talking to gang members if they‟re willing to talk to you and get
to know who belongs in that area, who doesn‟t belong in their area, what‟s going on with
the gang.” He also spoke with gang members while on patrol and in arrest-like
situations. He spoke with other officers, gang experts, and gang detectives, and read
online articles.
Officer Krish explained several ways in which someone would enter a gang: by
being “jumped in” or beaten; by being “courted in” or having a family member already
part of the gang; or by completing a “mission,” which could be anything from graffiti to
murder. Once part of the gang, a member must still prove loyalty to the gang by “putting
in work,” or by doing things to benefit, promote, and earn respect for the gang and to
establish fear in the community.
Officer Krish had testified numerous times as a gang expert witness on gangs in
the Hollenbeck area, including El Sereno, Lowell Street, and Rose Hills gangs. With
regard to El Sereno and Lowell Street, Officer Krish learned the history and inner
workings of the gangs from gang experts and gang detectives, some with 30 years of
experience on the job, by reading “verbiage and literature” from department resources,
and by talking with gang members to confirm the information he knew. He explained El
Sereno was started in the 1960‟s, taking the name from the El Sereno community it
claimed, and its purpose was to protect the area from outside gangs. At the time of trial,
it had 360 to 400 predominantly Hispanic members. El Sereno also had “cliques” based
5
on neighborhoods, including the Ithaca Avenue clique and the Guardia Street clique with
territory in the area around Ithaca and Belleglade Avenues.
Lowell Street was started after an internal conflict within the El Sereno gang in the
mid- to late-1980‟s over narcotics distribution and who would pay “taxes” for criminal
activities. It took its named from the Lowell Avenue area it controlled, bordered by the
City of South Pasadena to the north, Stillwell Avenue to the west, Huntington Drive to
the south, and the City of Alhambra to the east. At the time of trial, Lowell Street had 34
documented members, a fact Officer Krish learned from department resources. Officer
Krish initially testified he had personally met three or four of them and learned none still
lived in the area from speaking to them, from speaking to El Sereno gang members, and
from the fact that he also had not had contact with Lowell Street members in that area.
On cross-examination after speaking with another officer, he testified he could not say for
sure whether any members still lived there because they would not be visible in the area
due to their “green-light” status (discussed below).
When Lowell Street split from El Sereno, a “green light” on the Lowell Street
members was established by the Mexican Mafia, a Hispanic prison gang, for the failure to
pay taxes. The “green light” was an order giving permission to jump, assault, or kill any
member of a gang without repercussions, a fact Officer Krish learned from tenured
detectives, Internet research, and El Sereno and Lowell Street gang members. Also by
speaking with tenured detectives, Officer Krish knew the Mexican Mafia prohibited
driveby shootings, but that rule did not apply to green-lighted gang members. El Sereno,
which was also known as Locke Street, was Lowell Street‟s main rival.
Officer Krish learned the primary activities of Lowell Street are assault with a
deadly weapon; attempted murder; trafficking in methamphetamine, cocaine, and
marijuana; weapons-related crimes; and robbery. He did not know the identity of the
gang‟s leader or others in command. But he knew the Lowell Street gang has one hand
signal (an “L” shape with the index finger and thumb), shows pride in the color green due
to their green-light status, and often “tags” and tattoos the number 12 to signal “L” as the
12th letter of the alphabet. He also took a photograph in December 2009 of graffiti by
6
the Guardia Street clique on a retaining wall within 200 yards of Lowell Street territory
that had been crossed out in orange paint and the letters “LSL” written over them, which
stood for Lowell Street Locos. He believed it signaled Lowell Street was active in the
area because he patrolled the area all the time, and the graffiti had not been there
previously. Lowell Street members would also frequently come back to the area to hang
out.
Although Officer Krish had not personally investigated any crimes associated with
Lowell Street and did not have personal contact with either appellant, he opined
appellants were members of the Lowell Street gang based upon field interview cards, the
facts of the incidents at issue, conversations with other officers, and numerous tattoos
displayed on appellants‟ bodies related to the Lowell Street gang. Given a “hypothetical”
set of facts based on the circumstances of this case, Officer Krish opined individuals
under these circumstances would have been riding in the car with the gun “for the benefit
of, at the direction of, or in association with a criminal street gang”: they acted in
association with a gang because they were two gang members acting together; and they
acted for the benefit of the gang because their actions instilled fear in the community and
prevented individuals from calling the police. He opined these facts demonstrated “these
two gang members” had committed or were about to commit a violent criminal act.
He testified gang members would know gang territories based on conversations
with other gang members and from graffiti, and a Lowell Street gang member would
know he was in rival territory on Ithaca Avenue where the incident occurred. He stated
this activity would enhance the reputation of the Lowell Street gang if there were a
general opinion on the street that Lowell Street did not exist anymore, showing Lowell
Street was “strong and willing to roll into rival territory.” That was true even if no
pedestrians or vehicle traffic were present at the time because gang members will still
talk about it; a Lowell Street gang member “[w]ill not drive through that area knowing
it‟s not theirs, with bandanas on their face and a loaded gun in the car at five miles an
hour and hope that nobody ever finds out. They‟re there for, like I said, one reason. And
they bank on the fact that the community is going to be in fear and rival gang members
7
are going to know that Lowell Street is alive and well.” In response to another
hypothetical, he stated a person in a gang would still be a gang member, even if he or she
moved away from the area, got a bachelor‟s degree, went to law school and became a
lawyer, and returned to the neighborhood to play basketball and drink beers with other
gang members.
Officer Krish also testified an individual named Michael Adame, whom he
believed to be a Lowell Street gang member, had been convicted of narcotics trafficking
in 2009. Although there was no gang allegation in the case and nothing in the police
reports indicating Adame was a gang member, Officer Krish based his opinion on field
interview cards, speaking with other gang members and gang officers, and a “Lowell”
tattoo on Adame‟s back. He also discussed a specific past incident between the Lowell
Street and El Sereno gangs in Alhambra in April 2010 during which three Lowell Street
gang members stabbed an El Sereno gang member 12 times. One of the Lowell Street
gang members stated during an interview that, “two or three years prior, this individual
was involved in a drive-by shooting on Lowell Street and this was their payback.”
Parole Agent Daniel Lopez testified he supervised Valadez from November 2009
until he was arrested. He explained that, typically, parolees are assigned to their last legal
residence or area where they committed their last crime, and were usually paroled to
immediate family members. But Valadez‟s case was transferred from Los Angeles
County to San Bernardino County because of special circumstances regarding potential
threats to appellant‟s life and well-being. Valadez had mentioned to Lopez that “some
people” were visiting his father and he felt it was a threatening environment. Lopez told
him it was not wise for Valadez to be in that environment and that was why San
Bernardino County accepted his transfer. At that time, Lopez discussed Valadez‟s green-
light status with him and informed him as a condition of parole he was not to associate
with fellow gang members. Lopez also told him he could not travel outside San
Bernardino County without permission. On one occasion, Lopez gave him permission to
attend a birthday celebration for a family member, and Valadez took the trip without
8
issue. Lopez had not given him permission to leave the county on March 6, 2010, the day
of the incident.
Over objection, the trial court admitted the first two pages of a “general chrono,”
which was a document in Valadez‟s Department of Corrections file. It showed Valadez‟s
“residence plan” for parole as first for “Luis Valadez” in Los Angeles, and second for
“Virginia Marquez” in Upland, in San Bernardino County. It also contained a statement
from Parole Officer J. Ward reciting a statement from Valadez: “On November 18, 2009,
inmate Valadez was interviewed due to his safety concern. He stated it would not be
safety -- well, safety [sic] -- for him to parole to his father‟s address due to the Mexican
Mafia having a green light on him. They have been asking his father about when he
would be getting out of prison. Because of his gang status regarding the Lowell Street
gang, he feels that change in his parole address to Upland would keep his family as well
as himself safe from harm.”
2. Uribe’s Defense Evidence
Uribe did not testify. Paul Kim, a retired LAPD commander, testified on behalf of
Uribe that a police report is an important document and should be as accurate as possible.
If, for example, officers pulled a car over for driving at night without headlights, that
should be noted in the police report or provided in a supplemental report. He reviewed
the police frequency transmissions in this case and did not find any transmission to or
from Officer Lowe‟s unit, and it would have been out of police policy not to call in when
providing backup. Likewise, no officers broadcast that a gun was thrown out of
appellants‟ car, and if an officer had seen that, the proper procedure would have been to
broadcast that fact so responding units can go to that location. He could not think of a
legitimate reason not to broadcast that information when two officers are in the unit,
other than an officer is injured and unable to call it in.
Uribe also called former gang member and current California Attorney Humberto
Guizar as a gang expert. He testified he was not sure the Lowell Street gang still existed
and, although former members might come back to the area to visit, they were not
engaged in gang activity. The last time he spoke with an active Lowell Street gang
9
member was when Guizar himself was still a gang member 30 years ago. He testified
Uribe was not a gang member because he was in his 30‟s, he had six children, and there
was no evidence Uribe had done any gang graffiti or gang signs. He also did not believe
Uribe was committing a gang crime when he was arrested because he had never heard of
a gang member committing a “hit” while wearing a bandana over his face. He had also
never heard Lowell Street had been given a green light. Regarding gang tattoos, he
testified current tattoos do not necessarily signal active gang membership and there was a
year-and-a-half waiting list for one tattoo removal program and other removal methods
could be expensive.
Saul Romero, a “close personal friend” of Uribe, testified that he and Uribe‟s
brother Tony picked up appellant Valadez around 11:00 a.m. the day before his arrest 5
and went to a beauty salon and then Yard House restaurant, where they stayed until
around 9:30 or 10:00 p.m. After that, they went to Clancy‟s in Covina; on the way they
called Uribe to ask if he wanted to have drinks for Valadez‟s birthday, and he eventually
met them there. Around 2:00 a.m., Romero and Tony left together, and Uribe said he
was going to give Valadez a ride home to his father‟s house.
LAPD Detective Hector Salas testified he took custody of Uribe after the West
Covina Police Department cleared appellants of charges, at which point the LAPD “re-
arrested” them on March 8, 2010.
3. Valadez’s Defense Evidence
Valadez did not testify. He called Daniel Laughlin, a gang expert with 17 years
experience, who testified the Lowell Street gang was small, with 25 to 30 members, and
it had been inactive for the last nine or 10 years. He also testified most inactive gang
members did not remove their gang tattoos and free tattoo removal programs had long
waiting lists. He testified Lowell Street was part of El Sereno but it refused to pay taxes
5 Although Romero testified he picked up Valadez on March 6, appellants were
arrested on Saturday, March 6, 2010, at 1:30 a.m. We think in context Romero meant
Friday, March 5, 2010.
10
in the 1980‟s, which was related to their “green light” status. He knew a Lowell Street
gang member had been shot and killed three years before trial, but he did not know who
had shot him. He testified former gang members are not still gang “banging” in their
30‟s.
Reuben Lara testified he lived on Ithaca Avenue in El Sereno for 20 years and had
seen some graffiti, had occasionally heard gunshots, including a shooting in December
2009 or January 2010, and had seen some “cholos” in the neighborhood, but he had never
heard of Lowell Street as a gang. He had never seen either appellant.
Denise Valadez, Valadez‟s wife whom he had known for five years and married
on July 2, 2010, when he was in custody, testified she and Valadez would visit Valadez‟s
father Luis Valadez in El Sereno about every other week, and she would never travel on
Ithaca Avenue to get there. Valadez did not work the day before his arrest6 and his
friends picked him up to go to his father‟s house to help him clean the yard. His birthday
had been March 1, and he was going to celebrate with his friends afterward.
Valadez‟s father, Luis, testified he spoke with Valadez a few days prior to his
arrest, and expected Valadez to come to his house that night to help clean. He lived in El
Sereno for 44 years and did not see any gang activity on his block. He testified no one
had ever come to his house looking for Valadez and he did not know Valadez was a
member of the Lowell Street gang, but said Valadez was associated with the gang when
he was a teenager. He never saw appellant engage in gang activity and never talked to
Valadez about gangs.
4. Rebuttal Evidence
The prosecution recalled Detective Salas, who testified booking approval
documents reflected appellants were booked for conspiracy to commit assault with a
firearm. The prosecution also called LAPD dispatcher and records custodian Jed
6 Like Romero, Denise Valadez testified Valadez had March 6, 2010, the day of his
arrest, off from work. Again, we think in context she meant March 5.
11
Fernandez, who generally testified as to incident recall printouts for the night of the
incident.
DISCUSSION
1. Sufficiency of the Evidence*
Appellants contend insufficient evidence supported their convictions and gang
enhancements, and as a result, their due process rights were violated. In deciding an
insufficiency of the evidence claim, we “„“must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial evidence --
that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] The
focus of the substantial evidence test is on the whole record of evidence presented to the
trier of fact, rather than on “„isolated bits of evidence.‟” [Citation.]‟” (People v.
Bradford (1997) 15 Cal.4th 1229, 1329 (Bradford); see People v. Johnson (1980) 26
Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 316.) This standard
applies when the prosecution relies on circumstantial evidence; in that case, we may not
reverse so long as the circumstances reasonably justify the jury‟s findings. (Bradford,
supra, at p. 1329; People v. Vu (2006) 143 Cal.App.4th 1009, 1024 (Vu).) These same
standards apply to review the sufficiency of the evidence supporting gang enhancements.
(People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
A. Conspiracy Convictions
“„A conviction of conspiracy requires proof that the defendant and another person
had the specific intent to agree or conspire to commit an offense, as well as the specific
intent to commit the elements of that offense, together with proof of the commission of
an overt act “by one or more of the parties to such agreement” in furtherance of the
conspiracy.‟” (People v. Jurado (2006) 38 Cal.4th 72, 120 (Jurado); see People v. Swain
(1996) 12 Cal.4th 593, 600 (Swain).) Conspiracy does not require commission of the
target offense (Swain, supra, at p. 599), but it does require both the specific intent to
* See footnote, ante, page 1.
12
agree to commit the target offense and the specific intent to commit the target offense
(Jurado, supra, at p. 123). Conspiracy may be proved through circumstantial evidence,
so long as it “„supports an inference that the parties positively or tacitly came to a mutual
understanding to commit a crime. [Citation.] The existence of a conspiracy may be
inferred from the conduct, relationship, interests, and activities of the alleged conspirators
before and during the alleged conspiracy. [Citations.]‟” (People v. Rodrigues (1994) 8
Cal.4th 1060, 1135.)
Appellants argue the prosecution did not offer evidence they either intended to
conspire or intended to commit the crime of shooting from a vehicle or assault with a
firearm. We disagree; viewing the evidence in the light most favorable to the
convictions, substantial circumstantial evidence supported their conspiracy convictions.
The evidence demonstrated that at 1:50 a.m. appellants, two members of the same gang,
drove through their rival gang‟s territory on Ithaca Avenue at five miles an hour with
their lights off and green bandanas over the bottom portion of their faces to conceal their
identities, which was a color used as a symbol of the Lowell Street gang. They had a
fully loaded handgun in their car, which Valadez threw out the window when they were
spotted by Officers Wilson and Bueno. At that point, they sped away before they were
pulled over and arrested. Officer Krish‟s expert testimony demonstrated, as members of
the same gang driving through their rival gang‟s territory, appellants shared a common
interest in shooting from their vehicle. From this evidence, the jury could have readily
inferred beyond a reasonable doubt appellants harbored both the intent to agree and intent
to shoot from their car or assault rival gang members if they saw any. This evidence
amply supported appellants‟ conspiracy convictions.7
7 Although it does not impact our decision, we are not persuaded by the Attorney
General‟s reliance on People v. Muniz (1993) 16 Cal.App.4th 1083. That case involved
similar evidence as here: the defendant sat in a parked car with three fellow gang
members and held the butt end of a loaded semiautomatic rifle, and a gang expert
testified those circumstances suggest preparation for a driveby shooting. (Id. at p. 1088.)
But the issue was not whether sufficient evidence supported a conviction; it was whether
13
B. Gang Enhancements
The jury found true for both appellants allegations under section 186.22,
subdivision (b)(1), which provides: “[A]ny person who is convicted of a felony
committed for the benefit of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any criminal conduct by
gang members, shall, upon conviction of that felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of which he or she has been
convicted, be punished” with an additional term of imprisonment. Under the first prong,
a felony committed “for the benefit of, at the direction of, or in association with any
criminal street gang” requires proof that the underlying crimes were gang-related.
(Albillar, supra, 51 Cal.4th at p. 60.) Under the second prong, the “specific intent to
promote, further, or assist in any criminal conduct by gang members” may be established
by the criminal conduct related to the underlying offense, and the defendants need not
intend to promote, further, or assist gang-related crime, but only intend to assist, further,
or promote criminal conduct by gang members. (Id. at pp. 66-67.)
Section 186.22, subdivision (f) defines a “criminal street gang” as “any ongoing
organization, association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more of the criminal acts
enumerated in” subdivision (e) (with certain exceptions not pertinent here), “having a
common name or common identifying sign or symbol, and whose members individually
or collectively engage in or have engaged in a pattern of criminal gang activity.” Section
186.22, subdivision (e) sets out certain offenses that qualify as a “„pattern of criminal
gang activity,‟” which is defined as “the commission of, attempted commission of,
these facts established the corpus delicti of the conspiracy charge necessary to justify
admission of the defendant‟s admissions he was a gang member and had been preparing
to commit a driveby shooting. (Id. at pp. 1087-1088.) The corpus delicti standard is not
proof beyond a reasonable doubt; instead, a “slight or prima facie showing, permitting the
reasonable inference that a crime was committed, is sufficient and once this threshold is
met, the defendant‟s admissions may be considered on all issues.” (Id. at p. 1087.)
14
conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of
two or more of the following offenses, provided at least one of these offenses occurred
after the effective date of this chapter [(September 23, 1988)] and the last of those
offenses occurred within three years after a prior offense, and the offenses were
committed on separate occasions, or by two or more persons.”
The term “primary activities” “implies that the commission of one or more of the
statutorily enumerated crimes is one of the group‟s „chief‟ or „principal‟ occupations.
[Citation.] That definition would necessarily exclude the occasional commission of those
crimes by the group‟s members.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323
(Sengpadychith).) Sufficient proof of these “primary activities” may consist of “evidence
that the group‟s members consistently and repeatedly have committed criminal activity
listed in the gang statute,” or testimony from a police gang expert, who bases his or her
opinion on conversations with gang members, personal investigations of crimes
committed by gang members, and information from law enforcement colleagues. (Id. at
p. 324, citing People v. Gardeley (1996) 14 Cal.4th 605, 620 (Gardeley).) We may
consider both past and currently charged offenses as part of the gang‟s “primary
activities.” (Sengpadychith, supra, at p. 323.)
To prove a “pattern of criminal gang activity,” the prosecution must establish the
commission of two or more enumerated offenses committed on separate occasions or by
two or more persons within the specified time frame. (Gardeley, supra, 14 Cal.4th at
p. 610; People v. Hill (2011) 191 Cal.App.4th 1104, 1138 (Hill).) The crimes necessary
to constitute a pattern of criminal gang activity need not be gang-related. (Gardeley,
supra, at pp. 621-623; In re Alexander L. (2007) 149 Cal.App.4th 605, 611
(Alexander L.).) The current offenses may be considered in conjunction with prior
crimes by other gang members to establish a pattern of criminal gang activity. (Gardeley,
supra, at p. 625.)
Substantial evidence supported the jury‟s finding that the evidence satisfied both
the “primary activities” and “pattern of criminal gang activity” requirements. Based on
his training, experience, contacts with gang members and other officers, and his
15
testimony in another Lowell Street gang case, Officer Krish testified the Lowell Street
gang undertook activities falling within section 186.22, subdivision (e)(1)-(6), including
assault with a deadly weapon; attempted murder; trafficking in methamphetamine,
cocaine, and marijuana; weapons-related crimes; and robbery.8 In addition to the instant
offenses, which he testified were gang-related, he testified to another Lowell Street gang
member‟s involvement in criminal activity: Michael Adame, who was convicted of
narcotics trafficking in 2009. Although appellants complain the court records for
Adame‟s conviction introduced into evidence did not contain gang allegations, Officer
Krish testified Adame was a gang member based upon field interview cards, speaking
with other gang members and gang officers, and a “Lowell” tattoo on Adame‟s back.
Citing Alexander L., appellants argue Officer Krish‟s testimony lacked foundation
and could not have constituted sufficient evidence to establish these requirements. That
case, however, is distinguishable. In Alexander L., a gang expert testified the gang‟s
primary activities were “quite a few assaults with a deadly weapon, several assaults. I
know they‟ve been involved in murders. [¶] I know they‟ve been involved with auto
thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.” (Alexander L., supra,
149 Cal.App.4th at p. 611.) The expert was asked no further questions and “[n]o
specifics were elicited as to the circumstances of these crimes, or where, when, or how
[the expert] had obtained the information.” (Id. at pp. 611-612.) The court found this
testimony lacked foundation and was insufficient to satisfy the gang enhancement statute.
(Id. at p. 612.) Here, by contrast, Officer Krish testified to the basis for his opinion,
which was sufficient to support the jury‟s finding. (Gardeley, supra, 14 Cal.4th at p. 620;
see also People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 (Martinez); People v.
Ramirez (2007) 153 Cal.App.4th 1422, 1427 (Ramirez).)9
8 The jury was instructed that the pattern of criminal gang activity could be satisfied
by assault with a deadly weapon, sale of methamphetamine, and discharging a firearm
from a motor vehicle at another person other than the occupant.
9 Appellants also suggest there was insufficient evidence the Lowell Street gang
even existed in March 2010. But based on his background and experience, Officer Krish
16
Sufficient evidence also demonstrated appellants‟ offenses were committed “for
the benefit of, at the direction of, or in association with any criminal street gang.”
Appellants, who were gang members covered in gang-related tattoos, drove slowly
through a rival gang‟s territory with headlights off, green bandanas covering part of their
faces signifying their association with Lowell Street, and a loaded handgun in their car.
Coupled with Officer Krish‟s testimony that appellants‟ acts were associated with the
gang and their actions would benefit the gang, this evidence amply demonstrated
appellants‟ offenses satisfied the section 186.22, subdivision (b)(1) gang enhancement.
(See People v. Livingston (2012) 53 Cal.4th 1145, 1171; Albillar, supra, 51 Cal.4th at
pp. 63-64; People v. Jasso (2012) 211 Cal.App.4th 1354, 1376-1377.)10
Uribe separately contends his illegal possession of the handgun under count 3 for
being a felon in possession of a firearm could not support a gang enhancement for that
count because there was no evidence he was in “constructive” possession of the handgun.
“Constructive” possession of a firearm can be satisfied “when the contraband is found in
a place which is immediately accessible to the joint dominion and control of the accused
and another,” such as in a vehicle. (People v. Miranda (2011) 192 Cal.App.4th 398, 410-
411.) Here, although Valadez threw the handgun out of the car and no usable fingerprints
were found on it, Uribe was driving the car slowly with headlights off in rival gang
territory with a fellow gang member. He accelerated when they spotted Officers Wilson
and Bueno and even came to a rolling stop as Valadez threw the gun out of the car. From
testified the Lowell Street gang was active at the time. He even took a photograph of
Lowell Street gang graffiti in December 2009, which had not been there before on his
patrols of the area, suggesting the Lowell Street gang was indeed active only a few
months before the events leading to appellants‟ arrests. His testimony provided sufficient
evidence for the jury to conclude the Lowell Street gang was an active gang.
10 Appellants rely on In re Frank S. (2006) 141 Cal.App.4th 1192, but in that case
there was no evidence the minor was in gang territory at the time of the crime, had any
gang members with him, or intended to use the knife officers found in a gang-related
offense. (Id. at p. 1199.) That evidence existed here, supporting the gang enhancements.
(See Martinez, supra, 158 Cal.App.4th at p. 1333 [distinguishing Frank S. on similar
grounds].)
17
these facts, a jury could readily infer Uribe was aware of the gun and had joint control
over it, sufficient to find constructive possession.
Uribe also claims the felon in possession count could not legally support a gang
enhancement, relying on In re Jorge P. (2011) 197 Cal.App.4th 628, but that case has no
application here. There, the court held a minor gang member‟s misdemeanor conduct of
firearm possession in a motor vehicle under former section 12031, subdivision (a)(1)
(repealed eff. Jan. 1, 2012, and reenacted as § 25850, subd. (a)) could not also be used as
“felonious conduct” necessary to prove a violation of section 186.22, subdivision (a),
which in turn would elevate the firearms charge to a felony under former section 12031,
subdivision (a)(2)(C) (repealed eff. Jan. 1, 2012, and reenacted as § 25850, subd. (c)).
(Jorge P., at p. 638.) None of those provisions are at issue here and Uribe cites no
authority to suggest Jorge P.‟s reasoning extends to this case. Thus, the gang
enhancement for Uribe‟s felon-in-possession count was proper.
2. Gang Expert Testimony
Appellants argue Officer Krish‟s testimony on the background and history of the
El Sereno and Lowell Street gangs should have been excluded because it was based upon
hearsay and violated their confrontation clause rights. We disagree.
A. Background
Prior to trial, Uribe‟s counsel filed a brief arguing a gang expert cannot offer “non-
specific” hearsay statements regarding an incident unless the expert has personal
knowledge of the incident and can specify “who, when, where and under what
circumstances the alleged crimes were committed.” The trial court did not immediately
rule on the hearsay issue, but when Officer Krish began to testify about the history of the
El Sereno gang, appellants‟ counsel objected for lack of foundation and competency. At
sidebar, Valadez‟s counsel argued Officer Krish‟s testimony appeared to be
“assumptions” predating his experience between 2009 and 2011, so it lacked foundation
and rendered his testimony incompetent. Uribe‟s counsel also argued lack of foundation,
and if his testimony was based on hearsay, he wanted to argue his hearsay brief. The
court overruled the objections, provided the prosecutor laid “a little more foundation,”
18
such as “if he‟s talked to other officers, more experienced officers, more senior officers,
regarding the formation of El Sereno as well as has he ever talked to the gang[] members
about it?” The court rejected the hearsay contention because “he‟s allowed to rely on
hearsay in giving expert opinions” regarding “the background for Lowell Street and El
Sereno and the conflict between them,” and the court did not “see any reason to exclude
that if [the prosecutor] establishes the source of this information and it‟s adequate.”
Uribe‟s counsel understood “the expert can rely on hearsay in coming to his
conclusions about opinions that he has in the case,” but “[h]e cannot rely on hearsay to
give direct testimony as to I know that El Sereno was started on so and so by so and so
because that‟s not -- that‟s not why he‟s being called, and that‟s not part of the expertise
for why the People are calling him.” He argued Officer Krish was being called “just to
set the stage, I guess, about what the gangs are and what their rivalries are.” He
recognized Officer Krish “can rely on hearsay in coming to an opinion on whether or not
[appellants were] gang members” and whether “what the officers observed when they
arrested him were consistent with what a gang member would do.” But, according to
Uribe‟s counsel, he could not rely on hearsay to testify to how El Sereno was started.
The court inquired further, asking if counsel would object if the prosecutor asked Officer
Krish about the Lowell Street split from El Sereno, their rivalry, and the green light, to
which counsel responded Officer Krish could testify if he had personal knowledge of
those subjects. The court wondered how Officer Krish would have personal knowledge
other than the information provided by gang members and other officers. Uribe‟s counsel
responded, “That‟s not my problem,” and noted if Officer Krish had been out in the field
doing consensual stops and gathering information, then he could testify to it. Valadez‟s
counsel added Officer Krish could testify to “hearsay facts,” but could not testify to what
officers and other gang members told him. The court overruled the objections, subject to
proper foundation.
Officer Krish then testified he became familiar with the history of El Sereno
through “verbiage and literature that you read from department resources about the gang.
[¶] I‟ve talked to gang officers. I‟ve talked to gang detectives with 30 years on the job. I
19
talked to gang members themselves in the street during consensual encounters, talk to
them about what I read, what I heard, what I learned, what I believe I know. And run it
by them and confirm the information that I know.” He testified he relied on similar
sources to learn about Lowell Street. He testified on cross-examination officers he spoke
with got their information from the same sources, including speaking with gang
members, and that it is possible gang members might lie, although he could not
remember an instance of a Lowell Street gang member lying.
When he was recalled, Officer Krish testified appellants were gang members
“[b]ased on self admissions, based on field interview cards that I reviewed, based on the
facts of this incident, based on my conversations with the other officers, the tattoos that
the two defendants display.” At sidebar, Valadez‟s counsel objected on confrontation
clause, due process, and other grounds, and Uribe‟s counsel renewed his hearsay
objection, all of which were overruled.
B. California Law
Under Evidence Code section 801, subdivision (b), an expert witness may base an
opinion on “matter (including his special knowledge, skill, experience, training, and
education) perceived by or personally known to the witness or made known to him at or
before the hearing, whether or not admissible, that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to which his testimony
relates, unless an expert is precluded by law from using such matter as a basis for his
opinion.” California law permits gang experts to rely on reliable hearsay evidence to
form an opinion, even if the evidence would otherwise be inadmissible. (People v.
Gonzalez (2006) 38 Cal.4th 932, 944-946 (Gonzalez); Gardeley, supra, 14 Cal.4th at pp.
617-618.) Sources can include written material and conversations with gang members
and other officers. (Gonzalez, supra, at p. 949; Sengpadychith, supra, 26 Cal.4th at
p. 324; Gardeley, supra, at p. 620; Hill, supra, 191 Cal.App.4th at pp. 1122-1126 (Hill);
People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210 (Thomas); People v. Vy
(2004) 122 Cal.App.4th 1209, 1223, fn. 9.) We review the trial court‟s admission of
expert testimony for abuse of discretion. (Hill, supra, at p. 1122.)
20
The trial court did not abuse its discretion in admitting Officer Krish‟s opinions on
the general history of the El Sereno and Lowell Street gangs. Officer Krish had been an
officer for six and a half years, and spent almost two years in a gang enforcement
division. He kept up to date on gang activities in the Hollenbeck division by gathering
intelligence on gangs in the area, identifying and tracking gang members and their
activities, working with other officers and gang detectives, conducting searches on gang
members, and investigating gang-related crimes. He had training on gang awareness, and
he had contact with gang members on a daily basis. He relied on the same types of
sources other courts have found appropriate for gang expert testimony, that is,
conversations with gang members and officers, as well as written materials. And while
individual sources such as gang members might be reasonably questioned, he did not rely
on these sources alone or simply recite statements by others; he fit the information into
all the other sources and his own experience to render his opinion. (Hill, supra, 191
Cal.App.4th at pp. 1124-1125.) Even Valadez‟s gang expert Laughlin testified about
Lowell Street‟s failure to pay taxes and the split from El Sereno, corroborating Officer
Krish‟s testimony. The trial court therefore properly admitted Officer Krish‟s expert
testimony under California law.
C. Confrontation Clause
Officer Krish‟s testimony also did not violate appellants‟ confrontation clause
rights.11 As discussed above, California law permits gang experts to rely on otherwise
inadmissible hearsay in forming opinions. In Gardeley, which did not involve the
confrontation clause, the court suggested such “basis” evidence is not offered for its truth,
but only to reveal the basis for the expert opinions. (Gardeley, supra, 14 Cal.4th at
p. 619 [noting trial courts have discretion to limit expert questioning “because a witness‟s
on-the-record recitation of sources relied on for an expert opinion does not transform
inadmissible matter into „independent proof‟ of any fact”].) Eight years after Gardeley,
the United States Supreme Court decided Crawford v. Washington (2004) 541 U.S. 36,
11 We requested and received supplemental briefing on this issue from the parties.
21
59 (Crawford), holding the admission of testimonial out-of-court statements violates a
defendant‟s confrontation rights unless the witness is unavailable to testify and the
defendant had a prior opportunity for cross-examination. (People v. Lopez (2012) 55
Cal.4th 569, 576 (Lopez).) Crawford makes clear, however, the confrontation clause
does not apply to out-of-court statements not offered for their truth. (Crawford, supra, at
p. 59, fn. 9; Thomas, supra, 130 Cal.App.4th at p. 1210.)
Courts since Crawford have interpreted Gardeley‟s suggestion that gang expert
basis evidence is not offered for the truth to defeat confrontation clause challenges under
Crawford. (Hill, supra, 191 Cal.App.4th at pp. 1127-1128; People v. Sisneros (2009)
174 Cal.App.4th 142, 153-154; Ramirez, supra, 153 Cal.App.4th at pp. 1426-1427;
Thomas, supra, 130 Cal.App.4th at p. 1210.) In Thomas, for example, the court cited
Gardeley and rejected a confrontation clause challenge to a gang expert‟s reliance on
conversations with gang members in forming opinions because “experts can testify to
their opinions on relevant matters, and relate the information and sources upon which
they rely in forming those opinions. This is so because an expert is subject to cross-
examination about his or her opinions and additionally, the materials on which the expert
bases his or her opinion are not elicited for the truth of their contents; they are examined
to assess the weight of the expert‟s opinion.” (Thomas, supra, at p. 1210.) In Hill, the
defendant argued several out-of-court statements supporting a gang expert‟s opinions
were admitted for their truth and subject to the confrontation clause. (Hill, supra, at
p. 1127.) Relying on Thomas, the trial court admitted the statements because they were
not introduced for their truth, but only to assist the jury in evaluating the expert‟s opinion.
(Ibid.) Though the court of appeal “disagree[d] with Thomas‟s analysis of this important
issue, Thomas appropriately relies on relevant Supreme Court precedent, principally
Gardeley . . . , that we are required to follow,” so the court felt compelled to reject the
defendant‟s challenge. (Ibid.)
In a lengthy discussion, however, the court in Hill disagreed with the idea that
expert basis evidence is not offered for its truth for confrontation clause purposes. (Hill,
supra, 191 Cal.App.4th at pp. 1127-1128.) In its view, “[c]entral to the reasoning in
22
Gardeley and Thomas is the implied assumption that the out-of-court statements may
help the jury evaluate the expert‟s opinion without regard to the truth of the statements.
Otherwise, the conclusion that the statements should remain free of Crawford review
because they are not admitted for their truth is nonsensical. But this assumption appears
to be incorrect.” (Id. at pp. 1129-1130.) Relying on a New York case, the court
suggested when basis evidence consists of out-of-court statements “the jury will often be
required to determine or assume the truth of the statement in order to utilize it to evaluate
the expert‟s opinion.” (Id. at p. 1131.) As for the specific out-of-court statements at
issue, the court suggested if the basis evidence is in fact offered for its truth and subject to
the confrontation clause, most of the evidence on which the gang expert relied would not
be “testimonial” because it consisted of consensual conversations with gang members
and did not involve the investigation of any particular crimes. (Id. at pp. 1135-1136.)
Since Hill, a majority of justices on both the United States Supreme Court and our
high court have indicated expert basis evidence is offered for its truth and subject to the
confrontation clause. (Williams v. Illinois (2012) 567 U.S. __, 132 S. Ct. 2221(Williams); People v. Dungo (2012) 55 Cal.4th 608 (Dungo).) In Williams, the defendant
challenged a laboratory expert‟s testimony that a DNA report from a prior kidnapping,
rape, and robbery -- which was not introduced into evidence -- matched a DNA sample
taken from the defendant upon his arrest on unrelated charges. In a 4-1-4 decision, the
court held there was no confrontation clause violation but a majority of justices could not
agree on a rationale. Justice Alito, in a plurality opinion joined by the Chief Justice and
two other justices,12 reasoned the report was not offered for its truth, but for the limited
purpose of explaining the basis for the assumptions underlying the expert‟s independent
conclusion that the samples matched, and even if it was admitted into evidence for its
truth, the report was not testimonial. (Williams, supra, 132 S. Ct. at p. 2228 (plur. opn. of
Alito, J.).) The five other justices in two opinions (Justice Thomas, concurring in the
12 Justice Breyer wrote a concurring opinion while also joing Justice Alito‟s opinion
“in full.” (Williams, supra, 132 S.Ct. at p. 2252 (conc. opn. of Breyer, J.).)
23
judgment, and Justice Kagan, joined by three other justices, dissenting) all expressed the
view the report was offered for its truth, although Justice Thomas found it was not
testimonial, while the dissenting Justices found it was. (Id. at pp. 2257 [“[S]tatements
introduced to explain the basis of an expert‟s opinion are not introduced for a plausible
nonhearsay purpose.”], 2260 (conc. opn. of Thomas, J.); id. at pp. 2268, 2271 [the
expert‟s description of the report “was offered for its truth because that is all such „basis
evidence‟ can be offered for”], 2273 (dis. opn. of Kagan, J.).)
In Dungo, a forensic pathologist testified the victim in the case had been strangled,
basing his opinion on facts contained in an autopsy report by another pathologist, which
was not introduced into evidence. (Dungo, supra, 55 Cal.4th at pp. 618-619.) The
majority opinion, written by Justice Kennard and joined by the Chief Justice and three
other justices, concluded the statements in the autopsy report were not testimonial, and
therefore not subject to the confrontation clause. (Id. at p. 621.) That opinion did not
address the hearsay issue, although it noted the Williams plurality‟s nonhearsay rationale.
(Id. at p. 618.) Justice Werdegar wrote a concurring opinion, however, which garnered
majority support (joined by the Chief Justice and two other justices), explaining the
statements in the report were offered for their truth, so they were subject to the
confrontation clause. (Id. at p. 627 (conc. opn. of Werdegar, J.).) In dissent, Justice
Corrigan, joined by Justice Liu, noted, “When an expert witness treats as factual the
contents of an out-of-court statement, and relates as true the contents of that statement to
the jury, a majority of the high court in Williams . . . rejects the premise that the out-of-
court statement is not admitted for its truth.” (Id. at p. 635, fn. 3 (dis. opn. of Corrigan,
J.).)
If the currently constituted courts were called upon to resolve this issue, it seems
likely the holdings in Thomas, Hill, and other cases extending Gardeley to find out-of-
court statements offered as expert basis evidence are not offered for their truth for
24
confrontation purposes will be significantly undermined.13 But we need not decide the
issue. Assuming the general out-of-court statements on which Officer Krish relied in
testifying to the background of the El Sereno and Lowell Street gangs14 were offered for
their truth as appellants contend, they were not testimonial under the confrontation
clause.
To be subject to the confrontation clause, out-of-court statements must be
“testimonial.” (Crawford, supra, 541 U.S. at p. 59.) In Crawford, the court declined to
give a comprehensive definition of testimonial statements, although it stated at a
minimum the confrontation clause applies to “„prior testimony at a preliminary hearing,
before a grand jury, or at a formal trial; and to police interrogations,‟” which, under the
facts of the case, included recorded statements by a witness in response to structured
police questioning. (People v. Cage (2007) 40 Cal.4th 965, 978 (Cage) [explaining
Crawford].) In Davis v. Washington (2006) 547 U.S. 813 (Davis), the court reviewed
confrontation clause challenges in two cases: one involved out-of-court statements by a
domestic violence victim on a 911 call describing the attack as it occurred, which the
court held were not testimonial; and the other involved a victim‟s statements to officers in
response to questions after a domestic violence incident had ended, which the court held
were testimonial. (Cage, supra, at pp. 980-981 [describing facts in Davis]; People v.
Barba (2013) 215 Cal.App.4th 712, 721 (Barba) [same].) Without providing an
exhaustive list of testimonial statements, the court held: “Statements are nontestimonial
when made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the primary purpose of the
13 This does not mean Gardeley‟s holding that an expert may rely on inadmissible
hearsay as a matter of state evidentiary law is no longer a viable rule. Our discussion
here is limited to the implications of expert testimony under the confrontation clause.
14 Officer Krish did not testify to specific out-of-court statements, but we agree with
appellants that those statements were implicit in his testimony.
25
interrogation is to establish or prove past events potentially relevant to later criminal
prosecution.” (Davis, supra, at p. 822; see also Michigan v. Bryant (2011) __ U.S. __,
__, 131 S. Ct. 1143, 1157 (Bryant).)
Following Davis, the court in Cage found a victim‟s statement made to an officer
one hour after an assault was testimonial because the primary purpose was to investigate
the crime, but the court found nontestimonial a statement to a doctor for immediate
treatment of an injury. (Cage, supra, 40 Cal.4th at pp. 984-987.) The court derived
“several basic principles” from Davis: “First, . . . the confrontation clause is concerned
solely with hearsay statements that are testimonial, in that they are out-of-court analogs,
in purpose and form, of the testimony given by witnesses at trial. Second, though a
statement need not be sworn under oath to be testimonial, it must have occurred under
circumstances that imparted, to some degree, the formality and solemnity characteristic
of testimony. Third, the statement must have been given and taken primarily for the
purpose ascribed to testimony -- to establish or prove some past fact for possible use in a
criminal trial. Fourth, the primary purpose for which a statement was given and taken is
to be determined „objectively,‟ considering all the circumstances that might reasonably
bear on the intent of the participants in the conversation. Fifth, sufficient formality and
solemnity are present when, in a nonemergency situation, one responds to questioning by
law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth,
statements elicited by law enforcement officials are not testimonial if the primary purpose
in giving and receiving them is to deal with a contemporaneous emergency, rather than to
produce evidence about past events for possible use at a criminal trial.” (Cage, at p. 984,
fns. omitted.)
In Bryant, the court clarified the meaning of Davis‟s requirement that “„the
primary purpose of the interrogation is to enable police assistance to meet an ongoing
emergency‟” in the context of statements by a mortally wounded victim to officers
arriving at the scene. (Bryant, supra, 131 S. Ct. at pp. 1150, 1156.) Our high court in
People v. Blacksher (2011) 52 Cal.4th 769 (Blacksher) interpreted Bryant in a case
involving an ongoing emergency and set out six factors to determine the “primary
26
purpose” of police questioning. (Id. at p. 811-816.) Although several of the factors
related specifically to the circumstances of an emergency, which was not present here,
two of the other factors guide our inquiry. Under Bryant, we “must objectively evaluate
the circumstances of the encounter along with the statements and actions of the parties,”
and “„the relevant inquiry is not the subjective or actual purpose of the individuals
involved in a particular encounter, but rather the purpose that reasonable participants
would have had, as ascertained from the individuals‟ statements and actions‟ in the given
situation.” (Id. at p. 813.) The inquiry focuses on the primary purpose of the
questioning, even though in emergency situations the parties may have mixed motives of
both responding to an emergency and investigating a crime. (Id. at p. 814.) Moreover,
“regardless of the existence of an emergency, the informality of the statement and the
circumstances of its acquisition are important considerations.” (Id. at 815.)
Most recently, several cases, including Williams, Lopez, and Dungo, addressed
confrontation clause challenges to expert testimony based on forensic evidence. In
Williams, one of the grounds on which the plurality found no confrontation clause
violation was that the report on which the expert relied was prepared for the primary
purpose of finding a dangerous rapist still at large, not to target an accused individual.
(Barba, supra, 215 Cal.App.4th at p. 719, citing Williams, supra, 132 S. Ct. at p. 2243
(plur. opn. of Alito, J.).) In his concurring opinion, Justice Thomas found no
confrontation clause violation because the report “lack[ed] the solemnity of an affidavit
or deposition, for it is neither a sworn nor a certified declaration of fact.” (Williams,
supra, at p. 2260 (conc. opn. of Thomas, J.); see Barba, supra, at p. 720.)
Interpreting Williams and two other recent cases,15 our Supreme Court in Dungo
and Lopez formulated a two-part test to determine whether an out-of-court statement is
testimonial: “First, to be testimonial the statement must be made with some degree of
formality or solemnity. Second, the statement is testimonial only if its primary purpose
15 Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 and Bullcoming v. New
Mexico (2011) 564 U.S. __, 131 S. Ct. 2705.
27
pertains in some fashion to a criminal prosecution.” (Dungo, supra, 55 Cal.4th at p. 619;
see Lopez, supra, 55 Cal.4th at pp. 581-582.) The court recognized the United States
Supreme Court has not agreed on a precise definition for either requirement. (Dungo,
supra, at p. 619; Lopez, supra, at p. 582.) In Dungo, the court held statements in an
autopsy report the testifying expert used to reach independent conclusions (but which was
not itself admitted into evidence) met neither requirement because the objective facts in
the report were not sufficiently formal to be testimonial, and the primary purpose of the
report was not to target an accused individual, but to provide an official explanation for
an unusual death. (Barba, supra, 215 Cal.App.4th at p. 721 [explaining Dungo].16) In
Lopez, the court held machine-generated results and chain-of-custody notations in a lab
report admitted into evidence and used by an expert to render an opinion on the
defendant‟s blood alcohol level was not sufficiently formal to be testimonial because
there was no attestation of validity and there was no way to cross-examine the machine
that generated the results. (Barba, at p. 720 [explaining Lopez].)
Although the out-of-court statements on which Officer Krish relied as an expert
witness do not fall neatly into either the Davis line of cases involving statements to
officers during emergencies or the Williams line of cases involving expert testimony
based on forensic evidence, we think under any definition of “testimonial” the general
background information he obtained from gang members, other officers, and written
materials on the history of the El Sereno and Lowell Street gangs plainly does not
qualify. Officer Krish testified he simply talked to experienced officers, read materials,
16 In his concurring opinion in Dungo joined by three other justices, Justice Chin
provided further guidance on how to interpret Williams. (Dungo, supra, 55 Cal.4th at
pp. 627-628 (conc. opn. of Chin, J.).) Because neither the plurality opinion nor Justice
Thomas‟s concurring opinion could be considered a logical subset of the other, even
though they made up the holding of the court, “we must determine whether there was a
confrontation clause violation under Justice Thomas‟s opinion and whether there was a
confrontation clause violation under the plurality‟s opinion. If there was no violation
under both opinions, then the result (finding no confrontation clause violation) would
command the support of a majority from the high court‟s Williams case.” (Id. at p. 629;
see Barba, supra, 215 Cal.App.4th at pp. 723-724 [following J. Chin‟s concurrence].)
28
and discussed the gangs‟ history in casual, consensual encounters with gang members in
order to learn more about the history of the gangs, which gang expert witnesses almost
surely must do to become qualified as experts. There is no evidence to suggest any of
this information bore any degree of solemnity or formality as required by Justice Thomas
in Williams or by the court in Dungo and Lopez, or resembled in any way formal dialogue
or interrogation as discussed in Davis and other cases.
Further, nothing in the circumstances of Officer‟s Krish‟s interactions with gang
members and other officers objectively indicates the primary purpose of Officer Krish‟s
questioning was to target appellants or any other individuals or crimes for investigation
or to establish past facts for a later criminal prosecution. Officer Krish testified he never
had any personal contact with appellants and never investigated any Lowell Street
crimes. To the contrary, he merely educated himself about the history of gangs in an area
in which he was assigned as a gang officer, which would help him better understand and
perhaps more effectively investigate gang activity. Like the mixed motives of officers
and witnesses during ongoing emergencies, that he used this general information to
testify as a gang expert at trial does not mean his primary purpose in obtaining this
information was to use it against appellants in a later criminal prosecution. Day in and
day out such information would be useful to the police as part of their general community
policing responsibilities quite separate from any use in some unspecified criminal
prosecution. Further, nothing in the consensual encounters with gang members or
officers suggests they might have reasonably understood Officer Krish‟s primary purpose
was to use their statements in a later prosecution. This information is of a wholly
different character than the information officers obtained from the witnesses in Davis and
other cases, and it implicates the confrontation clause even less than the DNA report in
Williams, which according to the plurality had a primary purpose of finding a rapist, or
29
the autopsy report in Dungo with its primary purpose to provide an official explanation of
an unusual death.17
Here, appellants‟ confrontation clause challenge is limited to Officer Krish‟s
reliance on general background information from written materials and casual,
consensual conversations with gang members and other officers about the history of the
Lowell Street and El Sereno gangs, none of which implicates the formality and primary
purpose aspects of the confrontation clause. Because this information, which is the same
type of information gathered and used by every gang expert in the field, cannot be
considered testimonial, Officer Krish‟s testimony did not violate appellants‟
confrontation clause rights. (See Hill, supra, 191 Cal.App.4th at pp. 1135-1136.)
3. Evidentiary Claims*
A. Testimony from Valadez’s Parole Officer and the “General Chrono”
Valadez argues testimony from his parole officer and the “general chrono”
authored by J. Ward were improperly admitted and violated his rights to due process and
a fair trial. Prior to trial, the prosecution moved in limine to introduce the statements by
Valadez to his parole officer J. Ward contained in the general chrono, in which he
requested he be paroled to Upland instead of his father‟s house because Mexican Mafia
members had been asking his father about him and it would not be safe for him there due
to his gang status and the Mexican Mafia‟s green light on him. At the hearing on the
motion, Valadez‟s attorneys objected that the statement was “not clear” about future
violent actions and that it was more prejudicial than probative. The prosecutor argued it
17 Although there was no ongoing emergency in this case as discussed in Davis and
Cage, “whether an ongoing emergency exists is simply one factor -- albeit an important
factor -- that informs the ultimate inquiry regarding the „primary purpose‟ of an
interrogation.” (Bryant, supra, 131 S. Ct. at p. 1160.) Consistent with Dungo and Lopez,
Davis and Cage still required a primary purpose “to establish or prove some past fact for
possible use in a criminal trial,” and that purpose is absent here. (Cage, supra, 40 Cal.4th
at p. 984; see Hill, supra, 191 Cal.App.4th at p. 1136 [applying Davis and Cage to gang
expert basis evidence].)
* See footnote, ante, page 1.
30
was probative of lack of mistake in being in the area and of the gang allegation.
Valadez‟s attorneys responded mistake was not contrary to Valadez‟s defense. The trial
court granted the motion, agreeing with the prosecutor that Valadez‟s statement was
relevant to lack of mistake in being in the area and to the gang allegation because it
tended to prove Valadez was in the area with Uribe to commit a crime. The court also
found the probative value was not substantially outweighed by the potential for unfair
prejudice because the jury would already hear evidence Valadez had a parole agent and
had been convicted of a felony as part of the felon in possession of a firearm charge.
At trial, agent Lopez testified he supervised Valadez since November 2009 after
his transfer due to special circumstances regarding potential threats to appellant‟s life and
well-being if he stayed in Los Angeles County. He stated the general chrono was usually
created in the ordinary course of business of the Department of Corrections when there is
a special request or special circumstance; it is generated at the time of the request and
kept in the parolee‟s file. He explained Valadez‟s general chrono was created by J.
Ward, a counselor at Valadez‟s institution, and it went in Valadez‟s file. At that point,
Valadez‟s counsel objected to the document on the ground it contained double hearsay,
but the court overruled the objection, finding the document relevant to Valadez‟s
knowledge and awareness of a rivalry between the Lowell Street and El Sereno gangs and
admissible over the hearsay objection because it was a public record and an admission by
a party. Lopez further testified he discussed Valadez‟s green-light status with him, and
told him he could not travel outside San Bernardino County without permission or
associate with gang members. And Lopez testified Valadez told him some “people” were
visiting his father, and Lopez told him it was not a good idea for him to be in that area.
Valadez argues the trial court improperly admitted Lopez‟s testimony about what
he said to Valadez because it was hearsay not within an exception. The Attorney General
responds this was not hearsay because Lopez was available for cross-examination and
observed by the jury. The Attorney General is incorrect because a witness‟s prior
statement may be hearsay even if the witness testifies and is available for cross-
examination. (Evid. Code, § 1200, subd. (a) [defining hearsay as a statement “made
31
other than by a witness while testifying at the hearing . . . offered to prove the truth of the
matter stated”].) But in the trial court Valadez‟s counsel only objected on hearsay
grounds to one statement by Lopez -- his testimony he told Valadez he could not leave
San Bernardino County without permission. Valadez‟s counsel‟s failure to timely and
specifically object to Lopez‟s other testimony forfeited those challenges. (Evid. Code,
§ 353, subd. (a); People v. Tully (2012) 54 Cal.4th 952, 1010 (Tully).)18 As to the one
statement to which the objection was preserved, it was not offered for the truth of the
matter but only to show Valadez had been warned it was dangerous to be in the area. In
any event, any error was harmless because the statement was minimally probative of the
material issues and the evidence of Valadez‟s guilt was strong. (People v. Watson (1956)
46 Cal.2d 818, 836 (Watson).)
Valadez argues the trial court improperly admitted the statements in the general
chrono because they were irrelevant and unduly prejudicial under Evidence Code section
352. We disagree. “„“The test of relevance is whether the evidence tends „logically,
naturally, and by reasonable inference‟ to establish material facts such as identity, intent,
or motive. [Citations.]” [Citation.] [¶] Defendant placed all material issues in dispute
by pleading not guilty.‟” (Tully, supra, 54 Cal.4th at p. 1010.) If relevant, Evidence
Code section 352 permits the trial court to exclude evidence “if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” “We will not disturb a trial court‟s exercise of
discretion under Evidence Code section 352 unless the defendant affirmatively shows
that the court exercised its discretion „“in an arbitrary, capricious or patently absurd
manner.”‟” (People v. Escudero (2010) 183 Cal.App.4th 302, 310 (Escudero).)
18 We reject Valadez‟s attempt to avoid forfeiture by arguing in a cursory footnote in
his opening brief the failure to object constituted ineffective assistance of counsel.
(People v. Williams (1997) 16 Cal.4th 153, 206.)
32
Valadez‟s statement in the general chrono was highly probative to prove he was
not in the El Sereno area in which he was arrested due to mistake, that he intended to
commit a crime while there, and that he was a member of the Lowell Street gang. While
Valadez argues mistake and intent were not at issue, his not guilty plea put all material
issues in dispute and the prosecutor was entitled to offer the general chrono to prove his
intent and rebut the possibility that he was mistakenly in a rival gang‟s territory when he
was arrested. (Escudero, supra, 183 Cal.App.4th at p. 313.) The trial court also properly
exercised its discretion under Evidence Code section 352 because the general chrono was
not cumulative and was only potentially prejudicial because it would show appellant was
on parole in November 2009, a fact that was already before the jury from Lopez‟s
testimony and as part of the felon-in-possession charge. Thus, Valadez‟s claim fails.
B. Evidence of Uribe’s Association with the Mongols Gang
Uribe argues the trial court violated his due process rights by improperly admitting
evidence he was associated with the Mongols gang. The issue of the Mongols gang was
first mentioned in cross-examination of Valadez‟s gang expert Guizar, who testified the
Mongols were a motorcycle gang, and that any association between Lowell Street gang
members was unbelievable. Later, before Officer Krish was recalled to testify, Uribe‟s
counsel objected to the prosecutor‟s proposal to introduce a series of photographs
showing Valadez‟s tattoos, many of which were Lowell Street gang-related, and at least
one of which related to the Mongols gang. Uribe‟s counsel claimed they were
cumulative, and Valadez‟s counsel later joined the objection. The court overruled the
objection under Evidence Code section 352. No one specifically raised the issue of the
Mongols gang at that time.
The prosecutor then showed Officer Krish one of the photographs of a tattoo on
Valadez depicting a bald man wearing sunglasses, which Officer Krish identified was a
Mongols gang tattoo. Officer Krish explained the Mongols gang was a motorcycle gang
founded in 1969 and the “only information” he had of any association between it and the
Lowell Street gang was a comment he heard during a California Gang Investigators‟
33
Association seminar from Mexican Mafia defector Rene Enriquez (or Rene Boxer) that
the Mongols gang recruited from the Lowell Street gang.
The trial court stopped the questioning and held a sidebar, expressing concern
about the testimony and photographs related to the Mongols gang. The court ruled that,
given the only evidence of a connection between the Mongols and Lowell Street gangs
appeared to be one remark from a former Mexican Mafia member, the probative value of
the Mongols gang evidence under Evidence Code section 352 was “nil.” The court
invited a motion to strike the testimony and evidence, which appellants‟ counsel made
and the court granted. The court then instructed the jury “to disregard and not to consider
the testimony about anything about tattoos of the Mongols. Just put it out of your mind.”
The photographs of Valadez‟s Mongol gang tattoos were not admitted into evidence.
Uribe‟s challenge to this evidence fails because the trial court immediately
excluded it and instructed the jury not to consider it, so no undue prejudice resulted from
the jury‟s brief exposure to it. Indeed, the photographs of Valadez’s tattoos did not
directly link Uribe to any evidence regarding the Mongols gang, minimizing any possible
prejudice to Uribe. We presume the jury followed the court‟s instructions to disregard
this evidence, so it was not reasonably probable Uribe would have obtained a more
favorable outcome absent the error. (People v. Burgener (2003) 29 Cal.4th 833, 870;
Watson, supra, 46 Cal.2d at p. 836.)
4. Prosecutorial Misconduct Claims*
Appellants claim the prosecutor committed misconduct in several ways. A
prosecutor commits misconduct in violation of the federal Constitution when a series of
acts comprises a pattern of conduct so egregious that it infects the trial with such
unfairness as to make the conviction a denial of due process. (People v. Fuiava (2012)
53 Cal.4th 622, 679 (Fuiava); People v. Hill (1998) 17 Cal.4th 800, 819.) Under state
law, a prosecutor commits misconduct if he or she uses deceptive or reprehensible
methods to attempt to persuade either the court or the jury. (Fuiava, supra, at p. 679.)
* See footnote, ante, page 1.
34
Prosecutorial misconduct that does not rise to a federal constitutional violation will
warrant reversal only if it was reasonably probable a result more favorable to the
defendant would have resulted absent the misconduct. (People v. Bordelon (2008) 162
Cal.App.4th 1311, 1323-1324.) An appellant may not raise a claim of prosecutorial
misconduct on appeal “„unless in a timely fashion -- and on the same ground -- the
defendant made an assignment of misconduct and requested that the jury be admonished
to disregard the impropriety. [Citation.]‟ [Citation.]” (People v. Hill, supra, at p. 820;
see also Fuiava, supra, at p. 679.) The failure to timely object may be excused if
objecting would have been futile or a jury admonition would not have cured the harm
caused by the misconduct. (People v. Hill, supra, at p. 820; see also Fuiava, supra, at
p. 680.)
A. Questioning of Gang Expert Officer Krish
Appellants argue the prosecutor committed misconduct by eliciting testimony
from gang expert Officer Krish regarding appellants‟ intent the night of their arrest.
Called out of order for scheduling reasons, Uribe‟s gang expert Guizar testified if two
gangs had a conflict, they might “flip each other off or do something like that,” and that
conflict typically would not escalate to “very hard-core violence.” After Guizar testified,
Officer Krish retook the stand and the prosecutor posed a hypothetical question to Officer
Krish based on the evidence in this case. As part of that hypothetical, the prosecutor
directed Officer Krish to assume appellants were the individuals in the hypothetical
scenario. The prosecutor then asked, “Based on that hypothetical, do you have an
opinion as to whether or not those two defendants were riding in that car with that gun for
the benefit of, at the direction of, or in association with a criminal street gang?” Officer
Krish responded, “there‟s only one reason that a Lowell Street gang member would be in
an area they know is not theirs. They know that it is a rival gang‟s location. The fact that
two Lowell Street gang members are together during this incident or during this time
shows that it is in association, two individuals in association with a criminal street gang.
[¶] For the benefit -- it benefits the gang in that, when these criminal acts are conducted,
they place the community, they place rival gangs in constant fear. And the gang
35
members bank on this because they know, if the community is kept in constant fear, they
will be less likely to report, to call the police, allowing gang members to . . . [¶] . . . [¶]
. . . continue their criminal activity within areas.”
The prosecutor proceeded, “And would you expect these two gang members to be
in this area at 1:30 in the morning armed with a fully loaded handgun, to be there to flip
somebody off?” Officer Krish answered, “Absolutely not.” The prosecutor asked,
“What would you expect would occur?” The court overruled Uribe‟s counsel‟s objection
that the question was vague, and Officer Krish answered, “They‟re there, like I said, for
one reason. That‟s that they already committed a criminal act. They‟re about to commit
a violent criminal act . . . .”
Uribe‟s counsel objected at that point that the answer lacked foundation and called
for speculation. The court called counsel to sidebar, and raised a concern that the
prosecutor was “getting into testimony as to what it was [appellants] were there to do.”
The prosecutor argued the question was not about appellants specifically, but about two
Lowell Street gang members in that particular situation. The court was still concerned
the questions related to the ultimate fact in issue of appellants‟ intent, and struck Officer
Krish‟s last answer. The court noted Officer Krish could give an opinion on the issue of
“whether or not [appellants] were acting for the gang and in association with a gang with
the intent. But . . . especially on a case like this, where it‟s circumstantial, I think, it‟s
inappropriate for him to give an opinion as to what was in their minds and what they
were intending to do and you can argue that from the circumstances of your evidence.”
The court also relied on Evidence Code section 352, precluding “questions as to the
ultimate fact in issue, namely what they were conspiring to do. And you have plenty of
circumstantial evidence to argue from. And I think it‟s inappropriate for him to interpret
that circumstantial evidence as the jury‟s function. I‟ll strike the last answer.” The court
instructed the jury the last answer was stricken and should be disregarded, and the
prosecutor moved on to other questioning.
Appellants did not object to Officer Krish‟s testimony on misconduct grounds, so
this argument was forfeited. (People v. Erickson (1997) 57 Cal.App.4th 1391, 1403
36
(Erickson).) Even on the merits, any alleged misconduct did not prejudice appellants.
Officer Krish‟s stricken testimony on appellants‟ criminal intent the night of their arrest
may have been improper, given the jury was as competent as Officer Krish to draw an
inference on appellants‟ intent. (People v. Vang (2011) 52 Cal.4th 1038, 1048; People v.
Gonzalez (2005) 126 Cal.App.4th 1539, 1551.) But when the prosecutor elicited this
testimony, the court promptly ended the line of questioning, struck Officer Krish‟s last
answer, and instructed the jury to disregard it. (People v. Abel (2012) 53 Cal.4th 891,
925-926 (Abel).) Under the circumstances, any error was harmless. (Watson, supra, 46
Cal.2d at p. 836.)
B. Griffin Error
Appellants argue the prosecutor also committed misconduct by improperly
commenting in closing arguments on their failure to explain what they were doing in the
El Sereno area at 1:55 a.m., which violated their constitutional rights under Griffin v.
California (1965) 380 U.S. 609. During opening statements, Uribe‟s counsel told the
jury Uribe was on Ithaca Avenue because he intended to stop off at the house of a “girl
[who] who lived up the hill,” and Ithaca Avenue was the only way to get there. During
closing arguments, Valadez‟s counsel commented he believed there was testimony Uribe
was in the area “for some people that or some lady that he knew in that area.” In rebuttal,
the prosecutor argued, “And going back to the ability to subpoena witnesses to come to
court, ladies and gentlemen, remember at opening statement, when [Uribe‟s counsel] got
[up] before you and said „You‟re going to find out they were going to visit a lady.‟ They
provided witnesses that were with the defendants before at the bar. And they provided a
witness, Mr. Valadez, who lives nowhere near Ithaca. Where is this lady? Weren‟t you
waiting for her to walk in the courtroom and testify? [¶] Did they give you any
explanation, any witness to say what they were doing there at 1:50 in the morning?”
Uribe‟s counsel objected on the ground the argument shifted the burden of proof
to appellants, and the court held a sidebar. The court noted the issue was “sticky” and the
prosecutor had “an absolute right to comment on the failure to call logical witnesses once
they‟ve called witnesses,” but not the “right to comment on [appellants‟] own silence.”
37
The court then instructed the jury appellants had an absolute right not to testify and they
chose to exercise that right, so the jury may not consider their silence as evidence of
anything. The court also reminded the jury the prosecutor always has the burden of proof
beyond a reasonable doubt and the burden does not shift to the defense.
Once again, appellants failed to object in the trial court on misconduct grounds, so
they forfeited this claim. (Erickson, supra, 57 Cal.App.4th at p. 1403.) On the merits,
we find no error warranting reversal. Considered in context, the prosecutor‟s brief
comment could not have been reasonably understood to refer to appellants‟ failure to
testify. (People v. Benson (1990) 52 Cal.3d 754, 793.) To the contrary, it clearly referred
to appellants‟ failure to call a logical witness who had previously been mentioned -- the
“girl [who] lived up the hill” -- which was a proper subject of argument, as the trial court
correctly noted. (People v. Wash (1993) 6 Cal.4th 215, 262-263.) And even if improper,
the prosecutor‟s comments were not prejudicial, given the trial court instructed the jury
not to consider appellants‟ failure to testify as evidence of anything and the prosecution
always bore the burden of proof. (Watson, supra, 46 Cal.2d at p. 836.) This isolated
remark on the absence of a witness was a far cry from People v. Guzman (2000) 80
Cal.App.4th 1282, 1288-1290, cited by appellants, in which the prosecutor “repeatedly
and flagrantly denigrated” the defendant‟s right to remain silent by repeatedly referring to
another witness‟s willingness to testify. Thus, appellants‟ claim fails.
C. Mongols Gang Evidence
Separate from Uribe‟s evidentiary claim discussed above, Uribe argues the
prosecutor committed misconduct by eliciting evidence regarding the Mongols gang.
Uribe forfeited this argument by failing to object on misconduct grounds, but even on the
merits, the claim fails. Uribe is correct a prosecutor may not intentionally elicit
inadmissible evidence. (Abel, supra, 53 Cal.4th at p. 925.) Here, however, there is
nothing to suggest the prosecutor intentionally sought to present inadmissible evidence of
the Mongols gang; instead, the prosecutor explained she believed Officer Krish was only
going to testify the Mongols gang was also green-lighted by the Mexican Mafia, and she
apologized for eliciting testimony beyond that topic. In any case, the trial court cut this
38
questioning short, struck the Mongols gang testimony, and instructed the jury not to
consider any of the Mongols gang evidence. (Id. at pp. 925-926.) And as noted above,
there was no evidence to directly link Uribe to the Mongols gang evidence, so he was not
prejudiced by the brief reference to it. (Watson, supra, 46 Cal.2d at p. 836.)
D. Cumulative Prejudice
Appellants further argue the cumulative effect of the prosecutor‟s misconduct
warrants reversal. We disagree. Any arguable instances of error do not approach a “clear
showing of a miscarriage of justice.” (People v. Hill, supra, 17 Cal.4th at p. 844.)
5. Valadez’s Ineffective Assistance of Counsel Claims*
Valadez argues various acts and omissions by his two attorneys -- Jerry Fernandez
and Azar Elihu -- violated his Sixth Amendment right to effective assistance of counsel.
In order to prevail on this claim, Valadez must show “(1) his . . . trial counsel‟s
representation fell below an objective standard of reasonableness and (2) he . . . was
prejudiced (i.e., there is a reasonable probability that a more favorable determination
would have resulted in the absence of counsel‟s deficient performance).” (People v.
Ortiz (2012) 208 Cal.App.4th 1354, 1372, citing, inter alia, Strickland v. Washington
(1984) 466 U.S. 668, 687.)
A. Carjacking Evidence and Defense Theory
Valadez first argues his counsel failed to present evidence that there was no
carjacking and presented a defense theory without evidentiary support. Valadez‟s
defense theory was that officers lied about the events on the night of his arrest and, after
they could not hold appellants for carjacking, they fabricated a reason to arrest them.
This theory was supported by evidence that officers did not write in their reports that
appellants‟ car was moving slowly with its headlights off, and they did not broadcast over
the radio a gun was thrown from the car.
In opening statements, Elihu told the jury the evidence would show Uribe was
dropping Valadez off at his father‟s house and they were spotted by police because they
* See footnote, ante, page 1.
39
were driving a “crappy car, a 1993 Honda” with its lights on and they were not driving
that slowly, but they were spotted because “they look like Latino, and they were in an old
car.” When they were stopped, the “DMV of the vehicle showed that the car was stolen,
car jacked.” Appellants were then transferred to West Covina, where West Covina
officers learned the car was not stolen.
At that point, the prosecutor objected, and at sidebar, questioned how counsel
would prove the car was not stolen. Elihu stated she had subpoenaed two officers who
interviewed appellants, and the prosecutor argued the testimony would be hearsay and
she did not plan to bring up the carjacking. The court allowed Elihu to proceed based on
what Elihu expected the evidence to show, and if the evidence was not introduced, Elihu
would have to “deal with the consequences.” Elihu proceeded to argue the evidence
would show the car was not stolen, and as a result, detectives decided there was no
probable cause to arrest and hold appellants. Appellants were then transferred to the
LAPD, and officers there thought “well, these two gang members with so much tattoos
and prior record, they must be up to something.” They therefore charged appellants with
conspiracy to commit a driveby shooting.
During cross-examination, Elihu asked Officer Wilson at what point did the West
Covina Police Department release appellants, and Officer Wilson replied he did not know
and he was not there. Elihu then sought to confirm Officer Wilson at some point learned
there was no carjacking, and the trial court sustained the prosecutor‟s hearsay objection.
At sidebar, the court noted Officer Wilson could not testify to facts beyond his personal
knowledge and the parties would either have to stipulate to the facts of the carjacking
charge or the defense would have to call a competent witness to testify.
Later during trial the court requested an offer of proof regarding the West Covina
police officers. Elihu stated the two officers would testify to appellants‟ statements, as
well as “other valuable information” in the report. The court permitted Elihu to consider
overnight what other information she would elicit from the officers beyond appellants‟
statements, which the court had already ruled on. The next morning Elihu informed the
court she would not be calling the West Covina officers.
40
During Uribe‟s defense case, retired LAPD Commander Paul Kim testified he was
aware Uribe had been transferred to the West Covina Police Department, which
transferred appellants back to the LAPD two days later. He testified a police
transmission showed the white vehicle appellants were driving was reported as a “West
Covina car jacking.” LAPD Detective Hector Salas testified he took custody of Uribe
after the West Covina Police Department cleared appellants of charges, at which point the
LAPD “re-arrested” them on March 8, 2010.
Valadez has not shown his counsel was ineffective during these proceedings. As
to the lack of evidence for the carjacking theory, an ineffective assistance claim is only
cognizable on direct appeal if reasons for counsel‟s trial decisions appear in the record or
if there is no conceivable reason for the decisions. (People v. Cunningham (2001) 25
Cal.4th 926, 1003.) Nothing in the record reflects the reasons for Elihu‟s strategic
decision not to call the West Covina officers and there could have been valid reasons not
to. For example, at the start of trial Elihu could have reasonably believed she could prove
the car appellants were driving was not stolen and the stolen vehicle charge was
fabricated to enable appellants‟ arrest, only to discover later that theory was unwise.
“Making promises about the defense evidence in opening statement and then failing to
deliver does not constitute ineffective assistance per se.” (People v. Burnett (2003) 110
Cal.App.4th 868, 885.) Further, Elihu did not provide ineffective assistance by arguing
during opening statements she could rebut the evidence appellants‟ headlights were off
and they were driving slowly, given that there was evidence that officers did not include
those important facts in their reports. Valadez‟s other attorney argued that very point in
closing. Thus, we cannot say Elihu‟s opening statement constituted ineffective assistance
of counsel.
B. Concession During Opening Statements
Valadez argues Elihu improperly conceded during opening statements the Lowell
Street gang was an active gang when she told the jury: “Also, you will hear testimony
that Lowell gang is a very small gang. It‟s so small that it‟s almost inactive. They have
about three members. And there is no injunction. You‟ll hear testimony there‟s no
41
injunction against Lowell Street and members to congregate in certain area. [¶] . . . [¶]
Also, you will hear testimony regarding -- you‟ll hear testimony regarding how inactive
the Lowell Street gang is and how members interact with each other.” However, taken in
context, the jury would not have reasonably understood Elihu‟s comments as conceding
Lowell Street was an active gang. Rather, these comments suggested Lowell Street was
no longer active, which was consistent with testimony from both appellants‟ gang expert
witnesses. Therefore, Elihu‟s comment did not amount to ineffective assistance.
C. Testimony That Valadez Was in Custody
During recross-examination, Valadez‟s counsel Fernandez asked Officer Krish if
he was aware of any gang activity by Valadez prior to March 6, 2010, and the prosecutor
asked to approach the bench. She argued she believed Fernandez‟s question would open
the door to testimony about Valadez‟s prior robbery conviction because she believed that
conviction was indicative of gang activity, even absent a gang allegation, because it was
committed with another Lowell Street gang member and they wore bandanas. Fernandez
withdrew the question and moved on. Later, Fernandez asked Officer Krish if he was
aware of any contacts or activities attributable to Uribe on behalf of a gang in the last
three years, to which he responded he had not had contact with him. Fernandez asked the
same question about Valadez, to which Officer Krish responded, “There‟s reasons for
that.” The court clarified the question was just “have you had any contact with Mr.
Valadez,” to which Officer Krish responded, “No.” Fernandez then asked, “My new
question to you is that without any knowledge of what Mr. Valadez has been doing for
the last three years, what would be your opinion as to whether he‟s an active or inactive
gang member?”
Before Officer Krish responded, the court held a sidebar, noting Officer Krish said
only he had not had any contact with Valadez, not that he was unaware of what Valadez
had been doing. The court explained, “There‟s a big difference between the two. And
I‟m guessing you could be opening the door to some pretty damaging testimony if you‟re
asking him what he knew about Mr. Valadez, not whether he had any contact with him.”
The prosecutor argued the question about contacts opened the door to why Officer Krish
42
would not have had contact with Valadez, namely because he was in state prison until
four months before the incident. The court ruled Fernandez had, in fact, opened the door
to this testimony. Fernandez withdrew the question.
Fernandez stated he had no objection to the prosecutor asking Officer Krish
whether, during his time at the Hollenbeck division, he understood Valadez was in
custody. Officer Krish testified his lack of contact with Valadez for the last three years
did not affect his opinion that Valadez was a member of the Lowell Street gang. The
prosecutor then asked Officer Krish directly, “To your knowledge, was the defendant in
custody during your patrol,” to which he replied, “Yes.”
Valadez claims Fernandez provided ineffective assistance by opening the door to
testimony that Valadez was recently in custody and by failing to object. Although we
cannot identify a sound strategic reason for Fernandez‟s questioning, Valadez suffered no
conceivable prejudice as a result. The jury knew Valadez had a prior felony and was on
parole at the time of his arrest: Parole Officer Lopez testified to that fact and the court
admitted into evidence the “general chrono” related to his parole; and the parties
stipulated that appellants each had a prior felony conviction. Therefore, Officer Krish‟s
additional testimony that he knew Valadez had been in custody was cumulative and
Fernandez‟s opening the door to that testimony and refusing to object to it had no impact
on the outcome of the case.
D. Failure to Move for Mistrial
Valadez argues his counsel provided ineffective assistance by failing to move for a
mistrial at two points, first when the prosecutor showed Officer Krish Valadez‟s Mongols
gang tattoos, and second when Officer Krish testified the only reason appellants were in
the El Sereno area was because they already had or were about to commit a criminal act.
As discussed above, the trial court struck both items of evidence and instructed the jury to
disregard them. A mistrial may only be granted when the defendant‟s chances of
receiving a fair trial have been irreparably damaged (People v. Clark (2011) 52 Cal.4th
856, 990; People v. Dunn (2012) 205 Cal.App.4th 1086, 1094) and the “the risk of
prejudice must be incurable by admonition or instruction” (People v. Elliot (2012) 53
43
Cal.4th 535, 575). Here, the jury‟s brief exposure to the limited Mongols gang evidence
and Officer Krish‟s one statement on appellants‟ intent did not irreparably damage
appellants‟ right to a fair trial and any limited risk of prejudice was cured by the trial
court‟s striking of the evidence and admonishment to the jury to disregard it. (Id. at pp.
575-576.) Valadez‟s attorneys therefore did not provide ineffective assistance by failing
to move for a mistrial at either point and, even if they had, Valadez suffered no prejudice
as a result.
6. Cumulative Error*
We have rejected most of appellants‟ claims of error, and in those instances in
which error occurred, we have found no prejudice. We find no cumulative error
warranting reversal. (People v. Houston (2012) 54 Cal.4th 1186, 1233.)
7. Pitchess Claim†
Prior to trial, Valadez moved pursuant to Pitchess v. Superior Court (1974) 11
Cal.3d 531 for discovery of documents relating to complaints against Officers Bueno and
Wilson for the fabrication of charges and/or evidence, racial prejudice, dishonesty, false
arrest, and illegal search and seizure. (§ 832.7; Evid. Code, §§ 1043, 1045.) The trial
court granted the motion “as to veracity and fabrication,” based on appellants‟ denial of
using or possessing a handgun at the time of their arrests, and reviewed the officers‟
personnel records in camera with the custodian of records present. The court found one
item discoverable. We have independently reviewed the in camera Pitchess proceedings,
including the sealed reporter‟s transcript of the review of the personnel records. We
conclude the trial court properly evaluated the materials and appropriately exercised its
discretion to order the one item of discovery to be produced. (People v. Myles (2012) 53
Cal.4th 1181, 1209; People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
* See footnote, ante, page 1.
† See footnote, ante, page 1.
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8. Presentence Credits*
At sentencing, appellants were each awarded 852 days of presentence custody
credit, which consisted of 742 actual days and 110 days of conduct credit. In calculating
credits, the trial court assumed appellants‟ offenses constituted violent felonies, which
meant they were entitled to good conduct credits of 15 percent of their days in custody.
(§ 2933.1, subd. (c).) Appellants claim they are entitled to an additional 261 days, for a
total of 1,113 days, because under the version of section 4019 in effect when they
committed their offenses, their offenses were not violent felonies and instead were
subject to two days of conduct credit for every four days in custody.19
The Attorney General agrees appellants are entitled to more presentence credit
than awarded by the trial court because the 15 percent formula for violent felonies in
section 2933.1, subdivision (c) does not apply. As to Uribe, the Attorney General also
agrees he is entitled to two days of conduct credit for every four days in custody and
calculates his total as 1,112 days credit (742 actual days and 370 days of conduct
credit).20 As to Valadez, the Attorney General argues he is entitled to good conduct
credit of 20 percent of his days in custody under section 667, subdivision (c)(5) because
he admitted a prior strike conviction, for a total of 890 days of credit (742 actual days and
148 days of conduct credit).
* See footnote, ante, page 1.
19 Appellants did not raise this contention in the trial court. Section 1237.1 states,
“No appeal shall be taken by the defendant from a judgment of conviction on the ground
of an error in the calculation of presentence custody credits, unless the defendant first
presents the claim in the trial court at the time of sentencing, or if the error is not
discovered until after sentencing, the defendant first makes a motion for correction of the
record in the trial court.” However, courts have interpreted this section not to preclude
raising a presentence credits issue so long as that is not the only issue raised on appeal.
(People v. Jones (2000) 82 Cal.App.4th 485, 491; People v. Duran (1998) 67
Cal.App.4th 267, 269-270; People v. Acosta (1996) 48 Cal.App.4th 411, 420.)
20 Uribe claims he is entitled to 371 days of conduct credit, but under the formula in
In re Marquez (2003) 30 Cal.4th 14, 26, he is actually entitled to 370 days (742 actual
custody days ÷ 4 (discarding any remainder) x 2 = 370).
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We need not recount the recent legislative changes to section 4019 governing the
calculation of presentence credits. (See People v. Brown (2012) 54 Cal.4th 314, 317-319
(Brown); People v. Garcia (2012) 209 Cal.App.4th 530, 534-535.) Suffice it to say the
parties are correct under any version of section 4019 appellants were not subject to the 15
percent formula in section 2933.1, subdivision (c) because their convictions were not
listed as violent felonies in section 667.5, subdivision (c). Instead, the parties are correct
that, under all of the versions of section 4019 in effect prior to October 1, 2011, Uribe
was eligible for two days of conduct credit for every four days in custody because he was
convicted of serious felonies under section 1192.7, subdivision (c)(28), (31), (36), and
(42). (Garcia, supra, at pp. 540-541.) The Attorney General is also correct Valadez is
entitled only to a 20 percent credit of his days in custody under section 667, subdivision
(c)(5) because he admitted a prior strike conviction.
Appellants suggest they may be entitled to more credit under the current version of
section 4019 as a matter of equal protection, although they recognize the Supreme Court
rejected the same argument directed at a prior version of section 4019 in Brown and
courts have rejected the argument directed at the current version. (People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 53-56; People v. Verba (2012) 210
Cal.App.4th 991, 997; People v. Kennedy (2012) 209 Cal.App.4th 385, 396-397; People
v. Ellis (2012) 207 Cal.App.4th 1546, 1550.) For the reasons stated in those cases, we
find appellants‟ argument foreclosed.
Under the proper formula, Uribe is therefore entitled to 1,112 days of presentence
credit (742 actual days and 370 days of conduct credit). Valadez is entitled to 890 days
of presentence credit (742 actual days and 148 days of conduct credit).
DISPOSITION
The judgments are modified to award Uribe 1,112 days of presentence credit (742
actual days and 370 days of conduct credit) and Valadez 890 days of presentence credit
(742 actual days and 148 days of conduct credit). In all other respects, the judgments are
affirmed. The trial court is directed to amend the abstracts of judgment to reflect the
46
modified presentence custody credits for Uribe and Valadez and forward copies to the
Department of Corrections and Rehabilitation.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
47