Filed 4/6/17 P. v. Cardona CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY CARDONA,

Defendant and Appellant.


C077138

(Super. Ct. No. 11F08231)


Defendant Anthony Cardona, a Sureño gang member, had an ongoing dispute with his former friend, Noe Cisneros, also a Sureño gang member, but who was in the process of disassociating himself from the gang. In November 2011, Cisneros heard shots being fired near his house and came out to investigate. He joined his neighbor, Alex Ayala, who also heard the shots, in the latter’s driveway. A short time later, a car pulled up and defendant fired two shots at Cisneros and Ayala from the car’s passenger side window. Fortunately, no one was hit.
Defendant was convicted by jury of two counts of assault with a firearm. The jury also found with respect to each count that defendant personally used a firearm and he committed the offenses for the benefit of a criminal street gang. The trial court sentenced defendant to serve an aggregate determinate term of 10 years in state prison and imposed other orders.
On appeal, defendant contends: (1) the evidence was insufficient to support the jury’s gang enhancement finding because the gang expert’s testimony did not establish the Sureño gang defendant allegedly committed the crimes to benefit was the same gang that satisfied Penal Code section 186.22, subdivision (f)’s definition of “criminal street gang”; (2) the trial court violated defendant’s right of confrontation under the Sixth Amendment to the United States Constitution by allowing the gang expert to testify concerning the basis for his conclusion defendant was an active gang member; and (3) the trial court prejudicially erred and further violated defendant’s federal constitutional rights by permitting the gang expert to testify his gang contacts showed “a propensity to commit gang crime or violence.”
After the initial briefing in this case was filed, our Supreme Court decided People v. Prunty (2015) 62 Cal.4th 59 (Prunty) that “decide[d] what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets” (id. at p. 67), and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) that held where a gang expert’s basis testimony relates case-specific testimonial hearsay, there is a confrontation violation unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination or forfeited that right by wrongdoing. (Id. at p. 686.) We directed the parties to submit supplemental briefs addressing the new authorities. Having reviewed their submissions, we conclude sufficient substantial evidence supports the gang enhancement findings. Nor does Sanchez require reversal of these findings or the underlying convictions. Defendant’s final contention also fails. Any error in admitting the gang expert’s opinion as to defendant’s propensity for violence was harmless. We shall therefore affirm the judgment.
FACTS
Defendant’s Prior Relationship with Cisneros
Cisneros met defendant through the latter’s older brother, Alex Cardona. In 2008, on the first day Cisneros attended Grant Union High School in Sacramento, he got into a fight with a group of Norteño gang members. According to Cisneros, he was “jumped” because he was wearing the color blue, which the prosecution’s gang expert testified is the color associated with the Sureño gang. Cisneros also had a small tattoo on his face that indicated his affiliation with the Sureño gang that he got when he was 12 or 13 years old. During the fight, Alex stepped in and “helped [Cisneros] out.” That was the first time the two met. Cisneros met defendant a month or two later. While Cisneros denied being a Sureño gang member, he admitted hanging out with Sureños, including defendant and Alex, and testified he “stopped hanging out with them” when he met a girl and became a father, which happened sometime before 2011.
In May 2011, Cisneros got into a fight with one of Alex’s friends because the latter “thought [Cisneros] snitched on Alex” for something. Defendant and his girlfriend were present for the fight, as were Cisneros’s sister and girlfriend. According to Cisneros, after he won the fight, his sister got into a fight with defendant’s girlfriend, which prompted defendant to step in and pull Cisneros’s sister away from his girlfriend, which, in turn, caused Cisneros to step in and pull defendant away from his sister. This fight ended with defendant picking Cisneros up and throwing him to the ground. After this incident, Cisneros’s house was vandalized on multiple occasions. Cisneros’s mother testified one act of vandalism was committed by Alex and two such acts were committed by defendant. Defendant admitted to one of the incidents that occurred in August 2011.
The Present Drive-by Shooting
In November 2011, either late at night or during the early morning hours, Cisneros was in his bedroom when he heard shots being fired near his house. Cisneros’s neighbor, Ayala, also heard the shots. Both men came outside to investigate. Seeing Ayala standing in his driveway, Cisneros walked over and joined him to discuss the shots they heard. Ayala lived on the corner of Rockbridge Road and Jamestown Drive; his driveway was on Rockbridge. As he and Cisneros were talking, a small four-door car drove past the house on Jamestown, turned around, passed the house again, and then circled back, turned down Rockbridge, and stopped in front of Ayala’s driveway. The car contained five occupants; defendant was the front seat passenger. As the car stopped, defendant fired two shots at Cisneros and Ayala, pausing for a moment between shots. The car then drove away as Cisneros and Ayala ducked behind another car that was parked in Ayala’s driveway.
The evidence establishing defendant’s identity as the shooter was quite strong. Both Cisneros and Ayala identified defendant at trial, although Ayala’s identification was more tentative (“it was him or . . . his brother”) than that of Cisneros, who did not hesitate to point out defendant in court. Both Cisneros and Ayala also identified defendant in separately administered photographic lineups. Again, Cisneros did not hesitate to identify defendant as the shooter, adding: “I’m tired of this shit. I’m tired of him fucking with me.” Again, Ayala’s identification was less certain: “From the nose down it looks like the guy who shot at us. His face looks the same. It was dark, and I didn’t see his eyes.” Defendant also confessed. During his police interrogation, defendant admitted to firing the shots and said he did so to “scare” and “fuck around” with Cisneros, although defendant denied anyone else was in the car at the time.
Moreover, defendant’s antagonistic relationship with Cisneros provided him with a motive to fire the shots at his former friend, as did the fact Cisneros was distancing himself from the Sureño gang. As the gang expert explained: “If somebody is out of line, a particular Sureño is not loyal to the gang or is being -- showing disrespect to the gang -- and this is a way of telling and communicating to that particular gang member what you are doing is not okay and this is basically a warning to other Sureños that if you are out of line with the gang, if you are disloyal to the gang, this is some of the repercussions you could face.”
DISCUSSION
I
Sufficiency of the Gang Evidence
Defendant contends the evidence was insufficient to support the jury’s finding he fired the shots at Cisneros and Ayala “for the benefit of, at the direction of, or in association with any criminal street gang” (§ 186.22, subd. (b)) because the gang expert’s testimony did not establish the Sureño gang defendant allegedly fired the shots to benefit was the same gang that satisfied section 186.22, subdivision (f)’s definition of “criminal street gang.” We disagree.
Section 186.22, subdivision (b), increases punishment for “any 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.”
“To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457; § 186.22, subd. (f).) “A ‘pattern of criminal gang activity’ is defined as gang members’ individual or collective ‘commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more’ enumerated ‘predicate offenses’ during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.]” (Duran, supra, 97 Cal.App.4th at p. 1457; § 186.22, subd. (e).)
We first note defendant admitted to being a Sureño gang member during his trial testimony. He moved to the Sacramento area from Los Banos, near Merced, when he was in the seventh grade.
To satisfy the “criminal street gang” requirements set forth above, the prosecution’s gang expert, Detective John Sample, testified there were about 500 documented Sureño gang members in the Sacramento area and about 1,500 documented Norteño gang members in the area. The two gangs arose out of the California prison system in the late 1960’s and early 1970’s, specifically out of a rivalry between the Mexican Mafia and Nuestra Familia prison gangs. The Mexican Mafia associated with the color blue and the number 13, which represents the letter “M.” The Nuestra Familia associated with the color red and the number 14, which represents the letter “N.” Eventually, the rivalry between the two prison gangs “moved into the streets” with the Sureño gang being aligned with the Mexican Mafia and the Norteño gang being aligned with the Nuestra Familia. The street gangs adopted the same colors and symbology as their prison gang progenitors. The reason for the numerical disparity between Sureño gang members and their Norteño counterparts in the Sacramento area is that Northern California is considered Norteño territory, while Southern California is considered Sureño territory. However, according to the detective, Sureño gang members will move into Norteño territory, and bring their gang affiliation with them, more regularly than Norteños move into Sureño territory. The detective referred to such Sureños as “transplants.”
Detective Sample also testified that Sureño gang members in the Sacramento area often claim membership in a particular “subset” of the gang, depending on where they came from or where they consider their present territory to be located. For example, many Sureños in the Sacramento area claim Howe Park or Triangle Park as their subset, while others who moved to the area from other parts of the state will continue to claim their original subset, such as Angelina Heights, a subset from Los Angeles. According to the detective, although Sureño gang members may be affiliated with different subsets, they “pretty often” consider themselves part of the same gang. In particular, Howe Park and Angelina Heights routinely “click up” to commit crimes together. The detective further testified the Sureño gang’s primary activities include narcotics trafficking, murder, drive-by shootings, assaults with firearms, assaults without firearms, and illegal weapon possession.
Finally, Detective Sample testified regarding the facts of two predicate offenses committed by Sureño gang members. The first predicate offense involved a Sureño gang member shooting a Norteño gang member with a shotgun. The confrontation began when a member of the Howe Park subset brought several of his Sureño friends over to an apartment where the mother of his child lived. When they arrived, they found a group of Norteños at the apartment, which “didn’t go over too well.” Words were exchanged, three of the Sureños retrieved a shotgun from their car, and the confrontation ended with one of the Sureños shooting one of the Norteños. The other predicate offense involved a “transplanted Sureño” from San Diego firing multiple shots at a group of party goers after words were exchanged between the transplant and the party goers, who the detective believed had “some affiliation” to the Norteño gang.
In Prunty, supra, 62 Cal.4th 59, our Supreme Court held that where, as here, “the prosecution’s case positing the existence of a single ‘criminal street gang’ . . . turns on the existence and conduct of one or more gang subsets, . . . the prosecution must show some associational or organizational connection uniting those subsets.” (Id. at p. 71.) The court continued: “That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization. [¶] Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same ‘group’ that meets the definition of section 186.22(f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22[, subdivision] (b). But it is not enough . . . that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets’ conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group.” (Id. at pp. 71-72, fns. omitted.)
Here, defendant admitted to being a Sureño gang member from the Merced area. However, he lived in the Howe Park area and was routinely contacted in the presence of Sureño gang members in this area, including, on at least one occasion, one of the individuals who was present during the commission of the first predicate offense. Detective Sample testified one of the Sureños who participated in this predicate offense was a member of the Howe Park subset, although he did not reveal the subset affiliations of the other participants. This establishes a sufficient associational connection between defendant and the Howe Park subset to support a reasonable conclusion the Sureño gang defendant sought to benefit by firing the shots at Cisneros and Ayala included Howe Park as a subset. However, the Sureño who committed the second predicate offense was a transplant from San Diego. There was no evidence “tending to show collaboration, association, direct contact, or any other sort of relationship” between San Diego Sureño transplants and either Merced or Howe Park subset members. (Prunty, supra, 62 Cal.4th at p. 82.) Nor did the detective’s testimony indicate a sharing of information, defense of the same turf, common presence in the same vicinity, or other behavior permitting an inference of an organizational or associational connection between San Diego Sureño transplants and either Merced or Howe Park subset members. (Ibid.)
With respect to showing a connection between the various subsets and a larger Sureño gang, Detective Sample testified the Sureño gang was formed as a street gang counterpart to the Mexican Mafia prison gang and the various Sureño subsets “pretty often” consider themselves part of the same overarching gang. However, there was no testimony regarding any hierarchical control exercised by either the Mexican Mafia or the larger Sureño gang over any of the subsets. (See, e.g., Prunty, supra, 62 Cal.4th at p. 77 [“proof that different Norteño subsets are governed by the same ‘bylaws’ may suggest that they function―however informally―within a single hierarchical gang”].) Nor does the detective’s testimony that Sureño subsets often claim membership in the larger Sureño gang suffice to establish the requisite connection. As our Supreme Court explained: “[T]here are some limits on the boundaries of an identity-based theory. The evidence must demonstrate that an organizational or associational connection exists in fact, not merely that a local subset has represented itself as an affiliate of what the prosecution asserts is a larger organization. . . . The prosecution must introduce evidence of the alleged subsets’ activities, showing a shared identity that warrants treating them as a single group.” (Id. at p. 79, italics added.) Here, while there was ample evidence defendant self-identified as part of a larger Sureño gang that included Howe Park as a subset, Detective Sample “offered no evidence that [the San Diego transplant] behaved in a manner that conveyed [his] identification with the larger association that [defendant] sought to benefit.” (Id. at pp. 82-83, fn. omitted.)
Accordingly, with respect to the two crimes specifically designated predicate offenses during the gang expert’s testimony, only the first satisfied Prunty’s associational or organizational connection requirement. (Prunty, supra, 62 Cal.4th 59.) However, as the Attorney General points out in her supplemental briefing on the matter, “the charged offenses may constitute one of the two predicate acts under . . . section 186.22, subdivision (e).” (See People v. Gardeley (1996) 14 Cal.4th 605, 624 [currently charged offense may be used as one of the predicate offenses in establishing a pattern of criminal gang activity], disapproved on another point in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13; see also People v. Loeun (1997) 17 Cal.4th 1, 9.) Here, defendant admitted to being a Sureño gang member, his present convictions for assault with a firearm qualify as predicate offenses (§ 186.22, subd. (e)(1)), and the jury found he committed these offenses for the benefit of his gang.
Finally, Detective Sample’s testimony sufficiently established the Sureño gang, limited here to Merced and Howe Park subsets (as these were the only subsets shown to be sufficiently connected to defendant), engaged in criminal primary activities. “[E]vidence of either past or present criminal acts listed in subdivision (e) of section 186.22 is admissible to establish the statutorily required primary activities of the alleged criminal street gang. . . . The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [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.) Here, as previously mentioned, the detective testified the Sureño gang’s primary activities include narcotics trafficking, murder, drive-by shootings, assaults with firearms, assaults without firearms, and illegal weapon possession. We conclude the detective’s testimony as a whole and the evidence establishing defendant’s commission of the crimes involved in this case support a reasonable conclusion members of the Sureño gang defendant sought to benefit routinely commit at least one of the crimes enumerated in section 186.22, subdivision (e), specifically assault with a firearm.
In sum, Detective Sample’s testimony, and other evidence in the record, sufficiently establish the Sureño gang defendant sought to benefit by shooting at Cisneros and Ayala was “the same ‘group’ that . . . committed the predicate offenses and engaged in criminal primary activities” within the meaning of section 186.22. (Prunty, supra, 62 Cal.4th at p. 71.)
II
Admission of Gang Expert’s “Basis” Testimony
Defendant also contends the trial court violated his right of confrontation under the Sixth Amendment to the United States Constitution by allowing Detective Sample to testify concerning the basis for his conclusion defendant was an active gang member. We agree testimonial hearsay was admitted in violation of defendant’s right of confrontation, but conclude the error was harmless.
“California law permits a person with ‘special knowledge, skill, experience, training, or education’ in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ (Id., subd. (a).) The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.” (People v. Gardeley, supra, 14 Cal.4th at p. 617.)
In Sanchez, supra, 63 Cal.4th 665, our Supreme Court held: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” (Id. at p. 686, fn. omitted.) There, the prosecution’s gang expert based his opinion the defendant was a member of a certain gang on various police contacts, during which the defendant was in the company of members of that gang, and on statements he made when given a “STEP notice” informing him he was associating with a known gang. (Id. at pp. 672-673.) The expert admitted he had never met the defendant, was not present when the STEP notice was given or during any of the police contacts, and his knowledge of these matters was derived from police reports and a field identification (FI) card. (Id. at p. 673.)
The court held these case-specific out-of-court statements in the police reports, STEP notice, and FI card were hearsay because they were “considered by the expert, and offered to the jury, as true.” (Sanchez, supra, 63 Cal.4th at p. 684.) The court continued: “Ordinarily, an improper admission of hearsay would constitute statutory error under the Evidence Code. Under [Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]], however, if that hearsay was testimonial and Crawford’s exceptions did not apply, [the] defendant should have been given the opportunity to cross-examine the declarant or the evidence should have been excluded.” (Sanchez at p. 685.) Turning to the testimonial nature of the statements, the court held the police reports were testimonial because they “relate[d] hearsay information gathered during an official investigation of a completed crime” and were not “made in the context of an ongoing emergency . . . or for some primary purpose other than preserving the facts for use at trial.” (Id. at p. 694.) The court also held the portion of the STEP notice relied upon by the expert during his testimony was testimonial, explaining, “[t]hat portion recorded [the] defendant’s biographical information, whom he was with, and what statements he made,” and the officer who recorded that information did so primarily “to establish facts to be later used against [the defendant] or his companions at trial.” (Id. at p. 696.) Finally, the court noted the record did not reveal enough of the circumstances surrounding the preparation of the FI card to determine whether or not it was testimonial in nature, but “[i]f the card was produced in the course of an ongoing criminal investigation, it would be more akin to a police report, rendering it testimonial.” (Id. at p. 697.)
Here, too, Detective Sample testified from police reports generated by other officers during official investigations of completed crimes. For example, the detective testified his opinion regarding defendant’s status as an active Sureño gang member was based in part on having reviewed “at least ten documented police reports” that “show[ed] his continued association [with] known Sureño gang members on no less than five occasions” and that revealed defendant was involved in “several gang fights,” was “contacted and documented with Sureño gang graffiti on no less than three occasions” and “admitted to multiple officers [on] at least three occasions [to] being a Sureño gang member.” While the detective went into greater detail regarding these police contacts, we need not provide the details here. The statements amounted to testimonial hearsay and should not have been admitted to support the detective’s opinion defendant was an active Sureño gang member unless the declarants were unavailable and defendant had a prior opportunity for cross-examination or forfeited that right. No showing was made as to declarant unavailability, prior opportunity for cross-examination, or forfeiture. Defendant’s right of confrontation was therefore violated.
The violation, however, was harmless. In addition to the police reports, the detective testified he was “personally familiar” with defendant, having “personally contacted [him and his brothers] on several occasions,” and also identified defendant as a Sureño gang member based on gang-related tattoos visible in various photographs that were admitted into evidence. The Sanchez court expressly sanctioned the admission of an expert’s opinion as to gang membership based on tattoos. (Sanchez, supra, 63 Cal.4th at p. 677.) Most importantly, defendant admitted to being a Sureño gang member during his testimony at trial. Based on the strength of this evidence, we can conclude beyond a reasonable doubt that had the offending hearsay not been admitted into evidence the jury would have concluded defendant was an active Sureño gang member.
Defendant also takes issue with Detective Sample’s testimony regarding a jail incident report involving Cisneros, one of the victims defendant fired upon. In that incident, Cisneros was attacked by two other Sureños in the jail. The detective opined the attack was gang-related and Cisneros was attacked because he was perceived to be a “snitch” for having identified defendant as the person who fired shots at him. We need not determine whether the jail incident report contained testimonial hearsay because, assuming it did, the error in admitting this evidence was also harmless. The prosecution’s theory of the case was that defendant fired shots at Cisneros because the latter was disassociating himself from the gang. As we have previously explained, the evidence adduced at trial indicating defendant was the shooter was incredibly strong, including two separate identifications from each victim and defendant’s confession. With respect to the shooting benefitting defendant’s gang, just as the detective possessed personal knowledge of defendant’s gang affiliation, he also had personal knowledge of Cisneros’s gang affiliation “through multiple investigations [he] conducted starting in 2008 up until probably 2012,” including “associations with [defendant and his brothers] beginning in 2008.” The detective also reviewed a photograph of Cisneros showing he had a gang-related tattoo on his face. His opinion Cisneros was distancing himself from the gang was based on personal contacts he had with Cisneros’s family. And Cisneros confirmed he was distancing himself from the gang during his testimony at trial, although he denied any official membership therein. Thus, even if the jail incident had not been testified to by the detective, the jury had plenty of admissible evidence from which to conclude defendant fired the shots at Cisneros to retaliate against him for being disloyal and to warn others not to do the same.
We conclude beyond a reasonable doubt that had the challenged evidence not been admitted, the jury would have found defendant guilty of the charged crimes and found the gang enhancement allegations to be true.
III
Inadmissible Propensity Evidence
Finally, defendant asserts the trial court prejudicially erred and further violated his federal constitutional rights by permitting Detective Sample to testify defendant’s gang contacts showed “a propensity to commit gang crime or violence.” The Attorney General does not argue this testimony was admissible, but instead argues the claim is forfeited and, in any event, “any possible error in admitting the challenged testimony was harmless.” We agree with the Attorney General’s assessment as to lack of prejudice.
A.
Additional Background
As previously mentioned, Detective Sample testified as to the basis for his conclusion defendant was an active Sureño gang member. This testimony recounted several police contacts during which defendant was found to be in the company of other gang members and/or admitted his membership in the gang. During defense counsel’s cross-examination of the detective, counsel elicited some additional details regarding these police contacts and then asked the detective whether, with the exception of one gang-related fight, “they mostly have to do with gang graffiti, or the way he’s dressed, or things that he has said” that drew a “[v]ague and compound” objection that was sustained by the trial court as to the latter ground. Defense counsel then clarified: “Based on the [contacts] with [defendant] that you’ve itemized here and that we’ve talked about, whether it be the graffiti, whether it be him getting involved in a gang high school fight, or him being found in possession of brass knuckles[,] is that consistent with [defendant’s] primary objective to commit violent crime?” Another objection was overruled and the trial court asked the detective whether he understood the question. The detective then asked defense counsel: “Are you asking if I believe out of these ten contacts they show his propensity or primary activity to be violence? Is that what you are asking?” Defense counsel responded: “Sure.” The detective answered: “Yes, I believe so and I can explain why.” Defense counsel declined the detective’s offer of an explanation.
During the redirect examination, the prosecutor asked Detective Sample: “You were asked if you had an opinion essentially that if the summary of [defendant’s] contacts show to you a propensity to commit gang crime or violence, do you remember being asked that question?” After the detective indicated he remembered being asked the question and he had such an opinion, the prosecutor asked the detective: “[W]hy don’t you tell us what your opinion was based on?” The detective then explained that one particular contact, during which defendant was found to be in possession of brass knuckles while hanging out with another Sureño gang member at Howe Park, indicated “one of [defendant’s] primary behaviors is violence” because “[y]ou don’t carry brass knuckles to do anything [but] violence.” This is especially true, explained the detective, given the fact defendant was with another Sureño gang member at a park known to be claimed by the Sureños as their territory, and where “[t]hey constantly get in fights” and “[t]here’s constantly shootings.” Thus, according to the detective, even if the brass knuckles were carried “for protection,” defendant’s “gangster lifestyle” required him to use violence “to protect himself [and] his gang and his territory otherwise he’ll seem weak.”
The prosecutor then asked essentially the same question previously asked by defense counsel, i.e., whether in Detective Sample’s opinion, based on the totality of defendant’s police contacts, “one of his primary objectives” was to “commit[] violent gang crime,” to which the detective answered: “Yes, it is. You not only have the brass knuckles, you not only have the shooting we’re talking about here, or the fact that there was a shots fired call and an extended magazine .9 millimeter located in his house with eight other Sureño gang members at his house that had just committed a robbery and assault several hours prior -- an hour prior. The list goes on and on. [¶] He’s always around other Sureño gang members, or around violence, or involved in the violence himself with the gang fight[s] that occurred. . . . He’s either around fights, around shots fired, or having weapons on him preparing to fight.”
B.
Analysis
The Attorney General argues defendant’s challenge to the admission of improper propensity evidence is forfeited under the doctrine of invited error because his trial counsel “first raised the issue of [defendant’s] propensity for violence.” As an alternative ground for forfeiture, the Attorney General argues defense counsel failed to object to the prosecutor’s follow-up questions regarding defendant’s propensity for violence. Defendant acknowledges the lack of objection, but argues the claim is nevertheless preserved for review because his trial counsel unsuccessfully objected to admission of the basis for Detective Sample’s opinion defendant had a propensity for violence, i.e., the police reports, as violating the confrontation clause, and asserts “further objection would have been futile.”
We need not resolve the forfeiture question because, assuming the issue is preserved, any error was harmless. As the Attorney General correctly observes, improper admission of propensity evidence is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818, i.e., whether it is reasonably probable defendant would have received a more favorable result in the absence of the error. (See People v. Mullens (2004) 119 Cal.App.4th 648, 658-659.) We have already concluded the improper admission of testimonial hearsay in the police reports in violation of defendant’s right of confrontation was harmless under the more stringent standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705], i.e., harmless beyond a reasonable doubt. Adding to that error the detective’s opinion these police contacts revealed defendant had a propensity for violence, we conclude there is no reasonable probability defendant would have received a more favorable outcome had that opinion not been elicited. Indeed, in light of the incredibly strong evidence of defendant’s guilt, we would also conclude this error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.


/s/
HOCH, J.


We concur:


/s/
BLEASE, Acting P. J.


/s/
RENNER, J.