Filed 8/3/17 P. v. Herrera CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER BERMUDEZ HERRERA,

Defendant and Appellant.
H041877
(Santa Cruz County
Super. Ct. No. F22843)

Defendant Christopher Bermudez Herrera fired multiple gunshots from a moving vehicle at two pedestrians on a highway overpass. One of the pedestrians was struck and killed. A jury found Herrera guilty of first degree murder. (Pen. Code, § 187, subd. (a).) The jury also made true findings on firearm and gang allegations. The trial court imposed a total term of 50 years to life.
Herrera contends the trial court erred by admitting testimonial hearsay in violation of his right of confrontation under the Sixth Amendment. We conclude Herrera suffered no prejudicial error in this regard.
Herrera also requests a remand for the purpose of holding a hearing to make a record on his status as a youthful offender under section 3051 and People v. Franklin (2016) 63 Cal.4th 261 (Franklin). The Attorney General accedes to this request. The Attorney General also requests remand for the purpose of correcting the abstract of judgment to reflect the jury’s true finding on the gang enhancement. We will remand for the purposes of holding a hearing under Franklin and for correction of the abstract. We will affirm the judgment in all other respects.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Offense
The victim, Fernando Mendoza Avila, was fatally shot while walking with a friend on a highway overpass near Aptos during rush hour. Nearby motorists reported that the shooter was a passenger in a car driving past Avila on the overpass. Police identified Alfredo Garcia as the driver of the car and took him into custody. Garcia and another passenger—Rafael Barron—identified Herrera as the shooter. The prosecution charged Herrera as an active participant of the Norteño criminal street gang and alleged he committed the offense for the benefit of the gang.
1. The Shooting
Around 6:00 p.m. on May 30, 2012, Avila and his friend Jose Gonzales were walking southwest on the south side of the Freedom Boulevard overpass over State Route 1 (Highway 1) near Aptos. Gonzales saw a car drive past them with a passenger in the back seat. The passenger lowered the window and gave Gonzales “a mean look” that made him think the passenger was “looking for trouble.” The passenger was wearing a baseball cap and he had a mark like a tattoo under one of his eyes. Gonzales tried to avert his eyes and he told Avila not to look at the car. The car continued to drive past them and turned right, whereupon Gonzales lost sight of it.
Avila and Gonzales turned around and began walking northeast on the same side of the overpass. Gonzales was walking in front of Avila. Gonzales then heard three or four gunshots and threw himself to the ground. Gonzales saw the same car that had driven past them earlier. The car sped up and drove away. He then saw Avila on the ground as well. Avila lifted his shirt and revealed a gunshot wound to his chest. Avila began to tremble and convulse. Motorists in the area stopped to assist, and Gonzales left to get Avila’s family members.
Avila was struck with two bullets. One .22-caliber bullet entered his chest and punctured his heart, killing him soon thereafter. A second bullet was lodged subcutaneously just above his rear hip. The shots were fired from a distance of more than two feet away.
Witnesses saw the shots fired from a gray Honda. A motorist who was driving behind the Honda followed it up Freedom Boulevard as it fled from the scene of the shooting. The motorist saw the car’s license plate number and gave it to police.
The police traced the car to Garcia and arrested him later that evening. Garcia admitted the Honda belonged to him, but he initially denied any involvement in the shooting. He claimed he had been elsewhere the entire day. However, after the police told him GPS data from his phone had put him at the scene of the shooting, he confessed to his role in the shooting.
2. Garcia’s Testimony
Garcia testified for the prosecution as part of a plea agreement for a sentence of 40 years in state prison. He testified that he, Barron, and Herrera had been driving in the Santa Cruz area earlier in the day looking to buy marijuana. Garcia showed Herrera a .22-caliber semiautomatic Beretta pistol that Garcia was keeping in his pocket. After smoking marijuana at Nisene Marks State Park, the three men headed south on Soquel Drive toward Freedom Boulevard. Garcia was driving, and Herrera was sitting in the front passenger’s seat. Barron was sitting in the back seat.
After turning south onto the Freedom Boulevard overpass over Highway 1, they saw Avila and Gonzales walking on the sidewalk on the opposite side of the overpass. As the car approached, the parties stared at each other. Based on the pedestrians’ appearance and the way they were looking at the car, Garcia thought they were Sureños. Herrera said, they “look like scraps,” and asked Garcia for his gun. Herrera asked if he should shoot the pedestrians, and Garcia responded, “Yeah, fuck it.” Herrera then asked Barron if he (Herrera) should shoot the pedestrians, and Barron responded affirmatively. Garcia took the gun out of his pocket and gave it to Herrera. However, the magazine in the pistol fell out and landed in the space between the two front seats.
Garcia drove to the end of the overpass, turned onto another street, and stopped the car so they could look for the magazine. Barron reached under the front passenger’s seat, retrieved the magazine, and gave it to Herrera. Garcia then drove the Honda back to the Freedom Boulevard overpass. As they were crossing the overpass, they again saw Avila and Gonzales on the side of the overpass walking the other way. As they approached the pedestrians from behind, Herrera leaned out of the car and fired three or four shots at them. The victims were 10 or 12 feet away. Herrera yelled, “Norte, putos.”
Garcia accelerated and drove up Freedom Boulevard. Herrera and Barron celebrated by exchanging “high fives.” Herrera gave the gun back to Garcia and told him and Barron not to talk about the shooting. Garcia dropped off Barron and Herrera, and Garcia threw away the gun.
After police took Garcia into custody, he conducted two pretext phone calls with Herrera. Herrera warned Garcia that Garcia was in trouble because the police had obtained his license plate number. When Garcia asked what had happened to the gun, Herrera told Garcia, “[Y]ou threw it, remember?” Garcia asked about Barron, and Herrera assured Garcia not to worry about Barron because “that fool’s all scared of us.” Herrera advised Garcia to be careful and told him not to say anything on the phone.
3. Barron’s Testimony
Barron testified for the prosecution as part of a plea agreement for a sentence of 20 years 4 months in state prison. His testimony corroborated Garcia’s testimony in most respects. He confirmed that he was in the back seat of the car at the time of the shooting, that Garcia was driving, and that Herrera was sitting in the front passenger’s seat. He testified that when they saw Avila and Gonzales walking on the overpass, Garcia said, “Let’s get these fools.” Barron saw Garcia giving the pedestrians “dirty looks” but he could not see what Herrera was doing. He then saw Garcia hand a black glove to Herrera. After Herrera dropped the magazine out of the gun, Barron helped them look for it under the front passenger’s seat. Barron found the magazine, placed it between the two front seats, and Herrera picked it up. Then they drove back onto the overpass. Barron did not remember Herrera asking if he should shoot the pedestrians.
Barron testified that Garcia pulled the car up next to the pedestrians, and Herrera fired two or three shots at them. Barron saw Herrera’s arm extending out the window with something in his hand. One of the pedestrians fell to the ground. As the car accelerated away from the scene, Herrera moved from the front seat into the back seat with Barron. Barron did not remember Herrera celebrating after the shooting. Garcia told Herrera to throw the gun away, but Barron never saw the gun.
4. Gang Evidence
The prosecution alleged Herrera was a member of the Norteño criminal street gang at the time of the shooting. Inspector Morgan Chappell of the Santa Cruz County District Attorney’s Office testified for the prosecution as an expert in criminal street gangs. Chappell estimated that the Norteño gang included more than a thousand members in Santa Cruz County. The Norteño gang consists of smaller subsets associated with local geographical areas where the members live. Chappell testified that Norteños use certain signs and symbols to indicate their membership. Many of these symbols are connected to the term “Norte,” which is Spanish for northerner. Such symbols include the number 14, which represents the letter “N” as the fourteenth letter of the alphabet, and the letters “XIV,” which is the Roman numeral for 14. Other symbols used by Norteños are the Huelga bird, the California bear, and the five-point nautical star. Norteños associate with the color red. Members of the Sureño criminal street gang are common enemies of the Norteños. Sureños associate with the color blue. Norteños use “scrap” as an insult or derogatory term referring to Sureños.
Chappell opined that Herrera was a member of the Varrio Green Valley (VGV) subset of the Norteño gang at the time of the shooting. Chappell based his opinion on Herrera’s past contacts with law enforcement, statements he made to law enforcement, his tattoos, the people with whom he associated, his placement in the county jail, and the facts of the instant offense. Both Norteños and VGV members claim the color red, and VGV members also claim the color green. VGV members commonly wear jerseys and hats associated with the Green Bay Packers and they sometimes get tattoos of the Packers emblem.
Before Herrera was arrested, he had a tattoo under his left eye consisting of four dots above two horizontal lines. Chappell testified that the tattoo represented the Mayan symbol for the number 14, indicating that Herrera was heavily involved in the Norteño gang. After Herrera was arrested, police photographed a number of other tattoos on Herrera’s body. These included the letters “W,” “V,” “N,” and “L” on the fingers of his right hand; the numbers 9, 8, and 6 on his middle finger; the letters “XIV” on his right wrist; the letters “ENE” on his left wrist; the word “Northern” on his right forearm; the word “Soldado” on his left forearm; the number “1” on his right bicep; and the number “4” on his left bicep. Chappell testified that “Northern Soldado” meant “northern soldier,” and that Norteños refer to themselves as soldiers in a war against Sureños. The letters “ENE” referred to the letter “N.” Chappell considered all these tattoos to be a “strong indicator” of Herrera’s membership in the Norteño gang.
While Herrera was in jail, he obtained additional tattoos indicating gang involvement. On his stomach, he had a large tattoo of the letters “VGV,” referencing the Varrio Green Valley Norteño subset. He also had the letters “VGV” tattooed on the right side of his face. On the left side of his face, he wore another large tattoo of the Mayan or Aztecan symbol for 14. On his right temple, he had a tattoo of the word “Norte.” At the time of trial, Herrera was housed in the “N Unit” of the jail, which contains only active Norteño gang members.
Garcia testified that he knew Herrera was a member of the Norteños or “associated with Norteños.” Garcia based that conclusion on the tattoo of the symbol for the number 14 under Herrera’s left eye. According to Garcia, Herrera described their conduct on the day of the shooting as “patrolling,” meaning they were looking for “South Siders.” Garcia testified that Herrera said the pedestrians looked like “scraps” when he first spotted them on the overpass, and Herrera yelled “Norte, putos” just after shooting Avila.
Barron also testified that he knew Herrera was a Norteño based on his tattoos, and that Herrera had been “jumped in” approximately one year before the shooting. Barron testified that Herrera was a member of the VGV at the time of the shooting. Barron did not think they were looking for Sureños while they were driving around, but he testified that the pedestrians appeared to be Sureños to him based on the way they were dressed. He did not hear anyone call the pedestrians “scraps,” and he did not hear any conversation about their being Sureños. However, he testified that he believed the shooting happened because the pedestrians looked like Southerners.
Chappell opined that the Norteño gang would benefit when one of its members shot somebody perceived to be a Sureño. The gang as a whole would benefit because the shooting would eliminate “a soldier who is a potential threat to you or your fellow soldiers.” The shooting would also spread fear throughout the community and make people reluctant to testify against gang members or report them to police. The individual gang member who commits the crime would also benefit because his status as a gang member would be elevated and he would be feared by others.
B. Procedural Background
The prosecution charged Herrera with two counts: Count 1—Murder (§187, subd. (a); and Count 2—Street terrorism (§ 186.22, subd. (a)). As to Count 1, the prosecution included three special allegations: That Herrera committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)); that a principal personally and intentionally discharged a firearm which proximately caused great bodily injury and death in the commission of an offense for the benefit of a criminal street gang (§ 12022.53, subds. (d) & (e)(1)); and that Herrera personally and intentionally discharged a firearm which proximately caused great bodily injury and death in the commission of an offense (§ 12022.53, subd. (d)). At the close of evidence, the trial court granted Herrera’s motion for entry of a judgment of acquittal as to Count 2. (§ 1118.1.)
The jury found Herrera guilty of first degree murder on Count 1 and found all three allegations true. The trial court imposed an aggregate term of 50 years to life, composed of 25 years to life on Count 1 and 25 years to life for the firearm enhancement under section 12022.53, subd. (d). The court did not impose a term for the gang enhancement under § 186.22, subdivision (b).
II. DISCUSSION
A. Claims Under the Confrontation Clause of the Sixth Amendment
Herrera contends the admission of various testimonial hearsay statements violated his rights under the Confrontation Clause of the Sixth Amendment. He sets forth two categories of hearsay asserted to be testimonial statements admitted without the opportunity to cross-examine the declarants. First, he contends the trial court erred by allowing the prosecution to prove the gang-related predicate offenses by introducing court documents pertaining to offenses committed by third parties. The Attorney General argues that such documents do not constitute testimonial statements and that their introduction therefore did not violate the Confrontation Clause.
Second, Herrera contends the trial court erred by admitting testimonial statements through the prosecution’s gang expert that he relied upon as a basis for his opinions. The Attorney General contends Herrera forfeited this claim by failing to raise it below. The Attorney General further contends that the expert was allowed to rely on hearsay, but that even assuming the testimony was inadmissible, any error was harmless.
1. Background
Section 186.22 sets forth several requirements for proving the existence of a criminal street gang. Under subdivision (e), the prosecution must prove a “ ‘pattern of criminal gang activity,’ ” defined as “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” enumerated offenses “provided at least one of these offenses occurred after the effective date of this chapter 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[.]” (§ 186.22, subd. (e).)
The prosecution offered to prove these so-called “predicate offenses” through the introduction of certified court documents from the convictions of Oscar Espinoza and Aaron Amezcua, who were both Norteño gang members according to Chappell. People’s Exhibit 181 included minute orders, an abstract of judgment, a signed probation term sheet, and the complaint against Espinoza for street terrorism (§ 186.22, subd. (a)) and unlawful possession of a firearm (§ 12021, subd. (e)). Espinoza pleaded no contest to both counts. People’s Exhibit 182 included a similar packet of documents for Amezcua, who was charged with street terrorism (§ 186.22, subd. (a)), possession of a firearm by a felon (§ 12021, subd. (a)), and carrying a concealed firearm (§ 12025, subd. (a)(2)). Amezcua pleaded guilty or no contest to the second of these counts.
Herrera moved pretrial to exclude these documents on the ground that their admission would violate his Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and related cases. The prosecution opposed the motion on the ground that entry of a plea does not constitute a testimonial statement under Crawford. Following oral argument on the matter, the trial court denied the motion.
2. Legal Principles
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.) The Confrontation Clause thereby bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. at p. 36.) This bar applies only to testimonial statements; admission of nontestimonial statements, while subject to state law hearsay rules, does not violate the Confrontation Clause. (Id. at p. 53.)
“[A] court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term.” (People v. Sanchez (2016) 63 Cal.4th 665, 680 (Sanchez).)
A majority of United States Supreme Court justices have yet to agree on a precise formulation of what constitutes a “testimonial statement.” (Sanchez, supra, 63 Cal.4th at p. 687.) The term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Crawford, supra, 541 U.S. at p. 68.) “[T]he principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” (Id. at p. 50.) In the context of police questioning, the high 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 interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822, fn. omitted.)
We review de novo whether a statement is testimonial and therefore implicates the Confrontation Clause. (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.) “We evaluate the primary purpose for which the statement was given and taken under an objective standard, ‘considering all the circumstances that might reasonably bear on the intent of the participants in the conversation.’ ” (Ibid., citing People v. Cage (2007) 40 Cal.4th 965, 984.) Improper admission of testimonial statements is an error of federal constitutional magnitude. (Sanchez, supra, 63 Cal.4th at p. 685.) To show any such error is harmless, the state bears the burden of showing beyond a reasonable doubt that the error did not contribute to the verdict obtained. (Chapman v. California (1967) 386 U.S. 18; People v. Rutterschmidt (2012) 55 Cal.4th 650, 661.)
3. Court Records Proving a Conviction Are Not Testimonial Under Crawford
The Attorney General does not dispute that the challenged documents constitute hearsay statements admitted for their truth, nor that the underlying declarants were unavailable for cross-examination. The primary issue is whether the documents constitute testimonial statements under Crawford and its progeny.
Herrera relies on Kirby v. U.S. (1899) 174 U.S. 47, 48 (Kirby). Kirby was charged with receiving and possessing stolen postage stamps. To prove the stamps were stolen—an element of the charged offense—the government introduced records of the convictions of three third party defendants who had been prosecuted for stealing the stamps. Two of the third party defendants pleaded guilty and the other was found guilty at trial. (Id. at p. 49.) Kirby was not present when the guilty pleas were entered, nor at the trial resulting in the third party conviction. Kirby had no opportunity to cross-examine any of the third party defendants nor the witnesses who testified at trial. The high court held that the admission of the records of their convictions violated Kirby’s Sixth Amendment right of confrontation. “[O]ne accused of having received stolen goods, with intent to convert them to his own use, knowing at the time that they were stolen, is not, within the meaning of the constitution, confronted with the witnesses against him, when the fact that the goods were stolen is established simply by the record of another criminal case, with which the accused had no connection, and in which he was not entitled to be represented by counsel.” (Id. at p. 60.) Herrera contends Kirby is analogous to this case because the prosecution, like that in Kirby, used the records of third party convictions to establish an element of an offense charged against him without affording him the opportunity to cross-examine those who made the statements supporting those convictions.
Herrera also relies on People v. Cummings (1993) 4 Cal.4th 1233 (Cummings), (abrogated on other grounds by People v. Merritt (2017) 2 Cal.5th 819). Cummings and codefendant Gay were tried jointly for first degree murder in the killing of a police officer. Both defendants were convicted and sentenced to death. In the same case, Cummings had previously entered guilty pleas to several robbery counts in which Gay was also charged. Over Gay’s objections, the trial court admitted evidence of Cummings’ guilty pleas to prove the robbery charges against Gay. (Id. at p. 1321.) Gay never testified as a witness and was therefore unavailable for cross-examination. On appeal, Gay argued that the admission of Cummings’ pleas violated his Sixth Amendment right to confrontation under Bruton v. U.S. (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518. The California Supreme Court agreed and held the statements inadmissible, finding “none of the indicia of reliability which justify exceptions to the hearsay rule and, in turn, to the right of confrontation and cross-examination.” (Cummings, supra, 4 Cal.4th at p. 1322.)
Neither Kirby nor Cummings are dispositive here. Both opinions were issued prior to Crawford, so neither opinion considered whether the statements at issue were testimonial within the meaning of Crawford. Crawford, by overruling Ohio v. Roberts (1980) 448 U.S. 56, rejected the “indicia of reliability” touchstone under which prior courts—including the Cummings court—adjudicated Confrontation Clause claims.
We are not persuaded that the records of conviction at issue here constitute testimonial statements under Crawford. Herrera cites no California court holding so. He cites to several nonbinding authorities, but we find them unpersuasive. The records of conviction were not created for the primary purpose of establishing past facts relevant to later criminal prosecution. (See Davis v. Washington, supra, 547 U.S. at p. 822.) Their primary purpose is administrative: to memorialize the convictions for purposes of tracking the convicted defendant. (See People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 [records prepared to document acts and events relating to convictions and imprisonments are beyond the scope of Crawford]; People v. Moreno (2011) 192 Cal.App.4th 692, 710-711 [documents in section 969b packet regarding defendant’s prior convictions were non-testimonial because they were not created for the primary purpose of providing evidence in a subsequent prosecution and instead were created primarily for administrative purposes]; see also Melendez–Diaz v. Massachusetts (2009) 557 U.S. 305, 324 [public records are generally admissible absent confrontation because, “having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial”].)
For these reasons, we conclude the challenged documents are not testimonial under Crawford and its progeny. Accordingly, their admission did not violate Herrera’s right of confrontation under the Sixth Amendment.
4. Any Erroneous Admission of Hearsay by the Gang Expert Was Harmless
Herrera contends the trial court erred by admitting hearsay testimony from the prosecution’s gang expert in which the expert summarized statements from police reports describing Herrera’s prior contacts with police. The Attorney General contends Herrera forfeited this claim, and that any error was harmless.
a. Factual and Procedural Background
Herrera moved pretrial to exclude hearsay testimony by the gang expert concerning prior police contacts. Herrera argued that any such testimony describing his past criminal activities could not be admitted for the truth of the matter, and that a limiting instruction requiring the jury not to consider the statements for their truth would be inadequate and contradictory. Herrera did not cite the Sixth Amendment or Crawford in support of this argument. However, he filed a simultaneous pretrial motion to deem all evidentiary objections as raising federal constitutional grounds, including the Sixth Amendment.
Herrera raised both motions again in pretrial oral argument. The trial court denied his motion to exclude hearsay testimony by the gang expert, but the court offered “cautionary words” to the prosecution warning it not to elicit too much detail about the police contacts. With respect to Herrera’s motion to federalize evidentiary objections, the court granted the motion as to hearsay objections. The court stated, “As far as I’m concerned, an objection—I mean, an objection, for example, on hearsay grounds includes an objection on both state and federal Sixth Amendment, confrontation, and all of that encompasses due process, as far as I’m concerned.”
At trial, Chappell testified about five prior law enforcement contacts with Herrera. In 2008, police arrested Herrera along with three other Norteños for drinking alcohol in an alley. On August 2, 2008, police stopped Herrera with another Norteño. Herrera was wearing a red shirt, riding a red bicycle, and carrying a red bandana. He was also carrying a concealed fixed-blade knife. On June 11, 2011, Herrera was seen wearing a red jersey and a green cloth belt associated with VGV members. On August 15, 2011, he was documented with “Northern soldado” tattoos on his arms, and he was wearing a green beanie indicative of VGV membership. On May 3, 2012, he was seen wearing a green beanie, and he made a statement admitting that he “hangs with VGV.”
b. Erroneous Admission of Gang Expert Hearsay
In Sanchez, supra, 63 Cal.4th 665, the California Supreme Court considered the constitutionality of hearsay testimony by gang experts when the hearsay is used as a basis for the expert’s opinions. The prosecution’s gang expert had testified about several prior police contacts with Sanchez based on police reports of the contacts. (Id. at pp. 672-673.) The expert was not present during the contacts, and the police officers involved in the contacts did not testify at trial. The high court held that admission of the expert’s descriptions of the police reports violated the Sixth Amendment right of confrontation. Specifically, the 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.)
At first glance, much of the hearsay testimony presented by Chappell describing Herrera’s prior police contacts appears similar to the kind of testimony held inadmissible in Sanchez. The Attorney General, however, accurately points out that two of the prior contacts—the August 15, 2011 contact, and the May 3, 2012 contact—had been documented in field interview cards rather than police reports. The court in Sanchez held that statements in field interview cards may be testimonial depending on the circumstances under which the statements were made. (Sanchez, supra, 63 Cal.4th at p. 697.) It is not clear from the record whether the circumstances of those contacts would make the resulting statements testimonial. Of greater significance, however, is the fact that the authors of the field interview cards—Watsonville police officers Angel Calderon and Efren Martinez—testified and were available for cross-examination by Herrera. Similarly, as to the contact on August 2, 2008, Watsonville police officer Edmundo Rodriguez, who authored the report of that contact, testified before the jury and was available for cross-examination. Because Herrera was afforded an opportunity to cross-examine these witnesses, the admission of Chappell’s testimony regarding those three incidents was not a violation of his right to confrontation. (Crawford, supra, 541 U.S. at p. 37.)
As to the remaining two incidents, it is not clear from the record whether Chappell’s testimony was based on police reports authored under circumstances that would make the statements testimonial under Sanchez. However, even assuming the statements were sufficiently testimonial to trigger the Sixth Amendment, we conclude any error in their admission was harmless beyond a reasonable doubt. (Chapman v. California, supra. 86 U.S. 18; People v. Rutterschmidt, supra, 55 Cal.4th at p. 661.) Even if the trial court had excluded the asserted testimonial hearsay, the remaining evidence overwhelmingly supported the jury’s true findings on the gang-related elements. First, Herrera had numerous tattoos that unambiguously identified him as a Norteño. These included the word “Norte” on his temple; three different tattoos signifying the number 14; the words “Northern soldado” on his arms; the letters “ENE” on his wrist; and several other tattoos related to Norteño gang subsets. Second, Herrera was housed in the Norteño unit of the jail after he was taken into custody. Third, both Garcia and Barron testified that Herrera was a member of the Norteño gang. Garcia testified that Herrera said they were “patrolling” for “South Siders,” and that Herrera said the pedestrians looked like “scraps” when he first spotted them on the overpass, Garcia also testified that Herrera yelled “Norte, putos” at the pedestrians during the shooting. As to whether Herrera committed the offense for the benefit of the Norteño gang, there is no evidence on the record of any other possible motive for the shooting. We conclude the evidence, apart from any testimonial hearsay statements, overwhelmingly established that Herrera shot Avila for the benefit of the Norteño criminal street gang. Accordingly, Herrera was not prejudiced by the admission of any testimonial hearsay.
In his reply brief, Herrera contends Chappell also recited inadmissible testimonial hearsay in describing the facts of the predicate offenses committed by Amezcua and Espinoza. It is not clear that these are the kind of “case-specific” facts prohibited by Sanchez, but even assuming it was error to admit them, any such error was harmless for the reasons above. Furthermore section 186.22 does not require the prosecution to prove the specific facts of predicate offenses to establish a pattern of criminal gang activity under subsection (e). Testimony regarding the facts of those offenses was peripheral to the prosecution’s case. We conclude Herrera was not prejudiced by any asserted error in this regard.
B. Right to a Youthful Offender Parole Hearing Under People v. Franklin
Herrera was 20 years old at the time of the shooting. He contends he is entitled to a future youthful offender parole hearing, and he asks that we remand to the trial court for a hearing to preserve the record under Franklin, supra, 63 Cal.4th 261. The Attorney General does not oppose this request.
Under Section 3051, a person convicted of an offense committed before the age of 23 for which the sentence is determinate shall be eligible for release on parole at a youth offender parole hearing after a designated time. In Franklin, supra, the California Supreme Court held that section 3051 entitles such defendants to present evidence in the trial court about their immaturity if they were not afforded a sufficient opportunity to do so at sentencing. (Id. at pp. 283-284.) The high court remanded the case to the trial court to determine if the defendant had been afforded such an opportunity, and if not, to allow the defendant to present evidence. (Id. at p. 284.)
Because Herrera was 20 years old at the time of the shooting, and because the trial court imposed a determinate sentence for the offense, he is entitled under Franklin to make a record supporting any future parole hearing. We will remand to the trial court for that purpose.
C. Correction of the Abstract
At sentencing, the trial court did not impose a term for the jury’s true finding on the gang enhancement. The court did not state that it was striking the finding. Rather the court simply stated that “under our sentencing scheme, that [term] is not to be imposed in a case in which the 25-to-life enhancement is imposed, so I’m not imposing that.” The minute order states, “Pursuant to 1385(c)(1) PC, the Court strikes the additional punishment for enhancement allegation” under section 186.22, subdivision (b). The abstract of judgment reflects no jury finding on the gang enhancement.
The parties agree that the trial court correctly declined to impose a term for the gang finding. (See People v. Lopez (2005) 34 Cal.4th 1002, 1004 [first degree murder is a violent felony punishable by a life term that is not subject to a 10-year enhancement under section 186.22(b)(1)(C)].) The Attorney General, however, requests that we instruct the trial court to correct the abstract on remand to reflect the jury’s true finding on the gang enhancement. Herrera contends the jury made no such finding because “section 186.22(b)(5) represents an alternative parole eligibility limitation, which, in a case like this one, is purely academic because Herrera’s parole eligibility is already limited by his 25-to-life sentence for murder.” He points out that modifying the abstract would have “no practical effect.” He nonetheless requests that we remand so that the trial court would have “an opportunity to state its reasons for striking the gang enhancement under section 1385.”
Contrary to Herrera’s assertion, the record shows that the jury made a true finding on the allegation that the murder was committed for the benefit of a criminal street gang. And in its oral pronouncement of judgment, the trial court never struck this finding. As a general rule, when there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls. (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.)
Although the jury’s finding on the gang enhancement may not affect Herrera’s sentence in this case, we cannot say the finding would have “no practical effect” whatsoever. For example, the state may rely on an abstract of judgment to show a predicate offense was gang-related in other cases, as occurred in this case. Furthermore, “Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) For the reasons above, we will order correction of the abstract of judgment on remand to reflect the jury’s true finding on the gang enhancement.
III. DISPOSITION
The matter is remanded to the trial court to hold a hearing consistent with Penal Code section 3051 and People v. Franklin (2016) 63 Cal.4th 261. The trial court shall also order correction of the abstract of judgment to reflect the jury’s true finding on Special Allegation 1 under subdivision (b)(1) of section 186.22. In all other respects, the judgment is affirmed.



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RUSHING, P.J.





WE CONCUR:






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PREMO, J.






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GROVER, J.
















People v. Herrera
H041877