Filed 6/27/17 P. v. Montenegro CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS MONTENEGRO III,

Defendant and Appellant.

F070781

(Super. Ct. No. BF153450B)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


A jury convicted appellant Luis Montenegro III of attempted possession of a controlled substance (Pen. Code, § 664; Health & Saf. Code, § 11377/count 1), a lesser included offense of the possession for sale of methamphetamine charged in count 1, active participation in a street gang (§ 186.22, subd. (a)/count 3), possession for sale of methamphetamine (Health & Saf. Code, § 11378/count 4), and resisting arrest (§ 148, subd. (a)(1)/count 10). The jury also found true a gang enhancement in count 4
(§ 186.22, subd. (b)). In a separate proceeding, the court found true several prior prison term enhancements (§ 667.5, subd. (b)), a serious felony enhancement (§ 667, subd. (a)), two prior conviction enhancements (Health & Saf. Code, § 11370.2, subd. (c)), and allegations that Montenegro had a prior conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)).
On February 19, 2015, the court sentenced Montenegro to an aggregate term of 23 years: a doubled, upper term of six years on his conviction in count 4, two three-year prior conviction enhancements, a three-year gang enhancement, a five-year serious felony enhancement, three one-year prior prison term enhancements, a stayed six-year term on his conviction in count 3, and two concurrent 180-day terms on his convictions in counts 1 and 10.
On July 15, 2015, appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 asking this court to independently review the record.
On June 30, 2016, the Supreme Court issued its decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), disapproving of its decision in People v. Gardeley, (1996) 14 Cal.4th 605 (Gardeley), “to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules.” (Sanchez, at p. 686, fn. 13.)
On November 1, 2016, we directed the parties to brief several issues relating to whether the court erred in allowing the prosecutor to introduce case-specific hearsay through the testimony of its gang expert to prove the elements of the offense of active participation in a criminal street gang or the gang enhancement.
Following independent review of the record and having considered the parties briefs, we affirm.
FACTUAL BACKGROUND
The Prosecution Case
Count 1
The prosecution evidence established that on February 1, 2014, at approximately 7:00 p.m., Bakersfield Police Officer Lerry Esparza saw a Toyota 4Runner driven by Jose Antonio Toy, with Montenegro as a passenger, cut off another vehicle as it drove out of a parking lot. Esparza radioed Officer Chad Garrett, who then pulled in behind the Toyota and activated his emergency lights to effect a traffic stop. As the Toyota made an abrupt, sharp turn, Garrett saw Montenegro throw a plastic bag out the window. After traveling approximately 100 feet, the Toyota began slowing down.
During an ensuing traffic stop, Officers Esparza, Frank McIntyre, and Andrew Ferguson searched the Toyota and found several small Ziploc baggies that are commonly used to package narcotics. Esparza searched Toy and found a cellular phone with text messages that appeared to relate to drug dealing. He also searched Montenegro and found $350 in currency in small denominations. McIntyre searched the area along the route the Toyota had traveled prior to stopping. In the front yard of a residence, McIntyre found a clear plastic baggie with two other baggies inside that contained a total of 83.93 grams of methamphetamine.
Counts 3, 4, and 10
On February 20, 2014, in the afternoon, officers from a special drug task force conducted a search of some rooms at the El Morocco Motel in Bakersfield, including the manager’s apartment. Fifteen to 20 minutes into the search, a vehicle pulled up to the manager’s apartment and a man got out of the vehicle and asked for “Angel.” Kern County Sheriff’s Deputy Joshua Nicholson, who was in the apartment, replied, “Yeah, come on in.” Montenegro walked into the apartment, followed by Jose Concepcion Lopez and Jose Velez. Nicholson walked out from behind a wall and said “Kern County Sheriff’s Department.” Montenegro began reaching for his pocket and backpedaling toward the door. As Nicholson struggled with Montenegro and wrestled him to the ground, Montenegro discarded a plastic baggie containing 4.82 grams of methamphetamine. Lopez and Velez fled but were soon arrested.
Shafter Police Officer Joseph Hayes testified that after arresting Montenegro, he asked him if he was a gang member. Montenegro replied he was a Sureño.
Daniel Garduno’s Testimony
Daniel Garduno testified under a grant of use immunity that he became a member of the Varrio Bakers gang in 1994 when he was 13 years old. He was also an associate of the Mexican Mafia when he was in prison. Garduno left the gang in 2008 because, after he developed cancer that year, the gang did not assist him financially.
Garduno testified that a gang member could participate in a variety of activities for the gang, including robbery, burglary, or the sales of drugs or firearms. Garduno began committing thefts and burglaries for the gang, moved on to robberies, and then sold drugs. Gang members would give the proceeds from drug sales to Isaac Martinez, the leader of Varrio Bakers at the time. Martinez would then give some money back to the gang member who sold the drugs, and distribute some to other gang members to “keep the drugs going,” as well as to the Mexican Mafia in prison.
Garduno also testified that to get Varrio Bakers gang tattoos, a gang member had to earn them, which required the member to do something for the gang that was witnessed by other “people.” Garduno had tattoos of a “V” and “B” on his face that he earned in prison by stabbing another inmate three times, an assignment for which he volunteered.
Garduno knew Montenegro because they knew the same people; Garduno was friends with Montenegro’s relatives and he would see Montenegro on the street from time to time. When Garduno last saw Montenegro in 2012, he believed Montenegro still had “juice” with the Varrio Bakers gang, i.e., influence within the gang.
Officer Shaff’s Background Gang Testimony
Bakersfield Police Officer Shane Shaff testified as a gang expert that the letters “VB” stood for Varrio Bakers and the letters “VBTVS” stood for Varrio Bakers Traviesos, that they were the most common symbols for the Varrio Bakers gang, and that the gang’s major rivals were the Okie Bakers and the Colonia Bakers criminal street gangs. Shaff further testified that Varrio Bakers has three or more members, that gang members are expected to “work” for the gang committing crimes, and that the gang’s primary activities were weapons possession, assaults, stabbings, kidnapping, intimidating witnesses, auto theft, narcotics sales, assaults with a deadly weapon, and homicides. According to Shaff, Varrio Bakers fell under the umbrella of the Sureños or Southerners, and the gang aligned itself with the Mexican Mafia, which is a prison gang that controls the Southern Hispanic gangs. The Mexican Mafia also set the rules for Sureño gang members in prison, including prison “hits” and narcotics sales. Gang members from different Southern Hispanic gangs will become associates of the Mexican Mafia while in prison, and they will be the go-between with the Southern Hispanic street gangs, collecting taxes and money for narcotics sales, and setting the rules on the street. While in prison, Southern Hispanic gangs like the Okie Bakers and Colonia Bakers will get along with Varrio Bakers, but outside of prison there may be rivalries. Shaff also testified that Norteños are the primary rivals of Sureños.
Shaff testified regarding several predicate offenses, including one that occurred on August 7, 2007. On that date, Shaff and another officer conducted a traffic stop of Andrew Perez, who admitted being a member of the Varrio Bakers gang. During a search of Perez, the officers found a loaded firearm and a usable amount of methamphetamine. Perez was subsequently convicted of possession of narcotics while armed and a gang enhancement. Based on his review of the predicate offenses, Shaff opined that the Varrio Bakers gang and the Sureño gang were street gangs that engaged in an ongoing pattern of criminal activity.
Shaff also testified that the possession for sale offense that occurred on
February 20, 2014, benefited the Varrio Bakers and Sureños gangs because monies from the sales of narcotics benefit the gang by allowing the gang to purchase “regular items” as well as firearms, vehicles, and other items of that nature. The money also benefitted the gang by being distributed to gang members, including members in custody and members who wielded more influence in the gang.
The Testimony of Officers Who Contacted Montenegro
Bakersfield Police Officer Jeff Martin testified that on January 23, 2010, during a consensual encounter with Montenegro at the Western Nights Motel, he asked Montenegro if he was still an active member of the Varrio Bakers gang. Montenegro responded that he was.
Bakersfield Police Sergeant Brent Stratton testified that on February 16, 2010, he contacted Montenegro at the Night’s Rest Motel. When Stratton asked Montenegro about his gang activities, Montenegro stated he was still a member of the Varrio Bakers gang.
Bakersfield Police Sergeant Ryan Kroeker testified that in April 2010, he contacted Montenegro in front of a residence. Montenegro was wearing a hat that had the letter “V” on it. Montenegro also had the letter “V” tattooed on one shoulder and the letter “B” tattooed on the other. Montenegro admitted to Kroeker that the “V” on the hat and the tattooed letters stood for Varrio Bakers and that he was a member of that gang.

Officer Shaff’s Testimony Regarding Montenegro
Officer Shaff testified regarding Montenegro’s gang membership based on his review of a gang registration form, a combined total of 17 police reports and field interviews, and information on a booking form that was elicited during cross-examination. Shaff, however, was involved in only the following incidents that were documented in police reports. On April 28, 2010, Montenegro, his uncle, James Roybal, and Sam Mohammed were arrested on weapons and gang charges following a pursuit. Shaff interviewed Roybal and Montenegro. Roybal told Shaff that he was no longer an active member of the Varrio Bakers gang but that he was still a Sureño when incarcerated. He also stated that Montenegro was a member of the Varrio Bakers gang. Roybal was wearing a baseball cap with the letter “V” written on it. Montenegro told Shaff he grew up in the Varrio Bakers gang and that his moniker was “Playboy,” but that he was no longer active in the gang. Nevertheless, he admitted that his tattoos of the letters “V” and “B” stood for Varrio Bakers and that he was still in “the mix” and still “hung out.” !(RT: 1046.)! Montenegro also stated that Mohammed was not a member of Varrio Bakers and that Montenegro would know if someone was in the gang.
On May 19, 2010, Shaff and another officer contacted Montenegro, Andrew Bustamante and Antonio Hernandez. All three men were arrested for narcotics sales, and Montenegro and another man were arrested on gang charges. Bustamante told Shaff he was a member of the Southside Bakers criminal street gang, that his moniker was “Joker,” and that his subset of the gang was Southgate. Montenegro told Shaff he was a nonactive member of Varrio Bakers but still hung out with other gang members.
During cross-examination, Shaff testified regarding the contents of a booking form that was filled out on February 20, 2014, while Montenegro was being booked into jail. In response to questions on the form, Montenegro stated that he belonged to or associated with the “Bakers” gang and that he should be kept away from North[erners].
Shaff also testified from personal knowledge that Montenegro had the following tattoos: a “V” on his right shoulder, a “B” on his left shoulder, “SUR” on the fingers of his right hand, “XIII” on the fingers of his left hand, and “Varrio BKS” and “Kern County” on the back of his head.
Additionally, the prosecution, without objection, introduced a certified gang registration form from January 2014, for Montenegro. Shaff testified that the form contained Montenegro’s name and his monikers, “Louie” or “Playboy,” handwritten on it. It also had “Varrio Bakers” handwritten under the word “gang.”
Based on his review of the offense reports, the street checks, his contacts with Montenegro, the gang registration form, and Officer Hayes’s contact with Montenegro on February 20, 2014, Shaff opined that Montenegro was an active participant in the Varrio Bakers criminal street gang on February 1 through 20, 2014.
Officer Shaff’s Testimony Regarding Jose Lopez
Officer Shaff testified he knew Lopez was a Varrio Bakers gang member from having done a workup on him, testifying as a gang expert against him, viewing his gang tattoos, contacts with Lopez, and being on the street when Lopez admitted being a member of the gang. Shaff also testified that based on his involvement in an incident that occurred on May 1, 2010, Lopez was convicted of convicted of possession for sale of methamphetamine and active participation in a gang and ordered to register as gang members.
Shaff reviewed a total of 17 police reports and field interviews involving Lopez and testified to seven of these contacts, including one on August 6, 2007, in which he was personally involved. On that date, Shaff contacted Lopez while he was with George Mendoza, a parolee whose parole terms included a no gang contact clause. Lopez provided a false name, but once Shaff determined his real name, Lopez admitted having been an active member of the Varrio Bakers gang since he was “jumped” into the gang at age 15. Lopez had tattoos of the letters “VB,” which he said stood for Varrio Bakers, and the letters “KC,” which he said stood for Kern County. The tattoos were “scarred over” because they had been recently redone while Lopez was in prison.
Based on his review of the police reports, the contact noted above, Lopez’s contacts and commission of offenses with other gang members, and his involvement in the February 20, 2014, incident, Shaff opined that Lopez was an active participant in the Varrio Bakers Criminal street gang on that date.
The Defense
Montenegro testified that he had not gotten any tattoos in 17 years. He first considered himself a Varrio Bakers gang member when he was 13 years old. As a Varrio Bakers gang member, he was also a Sureño gang member, because the Sureño gang is an umbrella gang and if you are a Varrio Bakers gang member, you are also a Sureño gang member. When Montenegro was 18 or 19 years old, he began using drugs and eventually he began drifting away from the gang. His addiction got worse in 2006 when his mother died. Although he could not give a specific date when he was no longer an active gang member, 2007 was the year he got out of the gang.
According to Montenegro, the Varrio Bakers gang did not expect its members to make money for the gang and he never sold drugs for the gang.
Montenegro testified that during the February 1, 2014, traffic stop, Toy threw the drugs out of the car. He also testifed that the methamphetamine he discarded on February 20, 2014, was for his personal use.
DISCUSSION
Introduction
Montenegro relies on Sanchez to contend Shaff’s testimony regarding the information contained in the police reports, the field interviews, Montenegro’s gang registration form, and Montenegro’s booking interview was inadmissible testimonial hearsay. He further contends Shaff relied, in large part, on this hearsay to conclude Montenegro was an active member of the Varrio Bakers gang and that he committed the possession for sale offense for the benefit of that gang. Thus, according to Montenegro, the court prejudicially erred when it allowed the prosecutor to prove the gang offense and gang enhancement with testimonial hearsay that was introduced through Shaff’s testimony. Respondent contends Montenegro forfeited this contention by his failure to object and that, in any case, the introduction of testimonial hearsay did not prejudice Montenegro.
In the interest of judicial economy, we will forgo any discussion of forfeiture or ineffective assistance of counsel (which Montenegro alleges in the alternative), and dispose of Montenegro’s claim based on the absence of prejudice.
Legal Principles
As used in section 186.22, a “criminal street gang” refers to “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) of the statute], 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.” (§ 186.22, subd. (f).) The crimes listed in section 186.22, subdivision (e) include the commission or attempted commission of the “sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances.” (§ 186.22, subd. (e)(4); People v. Loeun (1997) 17 Cal.4th 1, 8.) To establish the requisite “pattern of criminal gang activity,” a prosecutor may “rely on evidence of the defendant’s commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member.” (People v. Loeun, supra, at p. 10.) The commission of two acts violating the same penal provision (e.g., two murders) will satisfy the statutory requirement of “two or more” predicate offenses if the crimes are shown to have been committed by two or more persons. (Id. at fn. 4.)
Section 186.22 proscribes the substantive offense of active participation in a criminal street gang, as set forth in subdivision (a) (hereafter section 186.22(a)), and also includes enhancement provisions, which are found in subdivision (b) (hereafter section 186.22(b)). (People v. Elizalde (2015) 61 Cal.4th 523, 538-539 (Elizalde).) “The elements of the gang participation offense in section 186.22(a) are: First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).) Active participation can be proven by evidence of gang tattoos, self-admission of gang membership, contacts with a criminal street gang and/or its members, gang-related contacts with police, the display of gang colors, and being in the company of a known gang member while committing a charged offense. (People v. Castenada (2000) 23 Cal.4th 743, 752-753; People v. Williams (2009) 170 Cal.App.4th 587, 626; People v. Garcia (2007) 153 Cal.App.4th 1499, 1511 (Garcia).) A defendant’s knowledge that the gang’s members engage in a pattern of criminal activity is often inferable from the same evidence that shows his or her active participation in the gang. (People v. Carr (2010) 190 Cal.App.4th 475, 489 & fn. 14.)
The enhancement provisions of section 186.22(b) apply when an offense is 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.” (§ 186.22(b).) “Unlike the substantive offense, the enhancement does not require proof of participation in a gang. It is further distinguished from the substantive offense by applying only to gang-related offenses and by requiring the defendant to act with the specific intent to promote, further, or assist any criminal conduct by gang members.” (Rodriguez, supra, 55 Cal.4th at p. 1130, fn. 5.) Although gang membership is not an element of the substantive offense or the enhancement, proof that a defendant belonged to a particular gang goes a long way toward establishing that a crime was committed with a gang-related intent. (See Sanchez, supra, 63 Cal.4th at pp. 698-699 [discussing the mens rea element of the enhancement]; Rodriguez, supra, 55 Cal.4th at p. 1130 [“A person who is not a member of a gang, but who actively participates in the gang, can be guilty of violating section 186.22(a).”].)
“In cases where a gang enhancement is alleged or a substantive gang crime is charged, expert testimony regarding the ‘culture, habits, and psychology of gangs’ is generally permissible because these subjects are ‘ “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” ’ ” (Garcia, supra, 153 Cal.App.4th at p. 1512; accord, People v. Vang (2011) 52 Cal.4th 1038, 1049-1050 & fn. 5.) The issue raised by Montenegro is the extent to which a gang expert may recite and rely upon testimonial hearsay when presenting his or her opinions to a jury. More specifically, Montenegro disputes the admissibility of Shaff’s testimony that was derived from police reports and other testimonial hearsay sources.
“Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible.” (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) The right of confrontation, as guaranteed by the Sixth Amendment to the federal Constitution and made applicable to the states through the Fourteenth Amendment, ensures the opportunity for cross-examination of adverse witnesses. (People v. Fletcher (1996) 13 Cal.4th 451, 455.) In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held that the confrontation clause bars the admission of out-of-court testimonial hearsay statements unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. (Id. at pp. 68-69.)
Until the court’s opinion in Sanchez, expert witnesses could testify about out-of-court statements upon which they had relied in forming their opinions, even if the statements were otherwise inadmissible under the hearsay rule. Case law held that such evidence was not offered for its truth, but only to identify the foundational basis for the expert’s testimony. (E.g., Gardeley, supra, 14 Cal.4th at pp. 618-620; People v. Miller (2014) 231 Cal.App.4th 1301, 1310.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements within an expert’s “basis” testimony to be compliant with the requirements of Crawford. (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
In Sanchez, the California Supreme Court held that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert’s opinion, which in turn implicates the Sixth Amendment right of confrontation. (Sanchez, supra, 63 Cal.4th at p. 684.) “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.… 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.)
“The hearsay rule has traditionally not barred an expert’s testimony regarding his general knowledge in his field of expertise.” (Sanchez, supra, 63 Cal.4th at p. 676.) The admissibility of an expert’s basis testimony now depends on whether it includes “case-specific facts,” meaning “those relating to the particular events and participants alleged to have been involved in the case being tried.” (Ibid.) If it does, the next question is whether such facts are presented in the form of testimonial hearsay. (Id. at pp. 680-681, 685.) “Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony.” (Id. at p. 689.) Information contained in a police report is generally viewed as testimonial hearsay because police reports “relate hearsay information gathered during an official investigation of a completed crime.” (Id. at p. 694.)
The Sanchez case involved a lone defendant who was arrested for possession of heroin, methamphetamine, and a loaded firearm. (Sanchez, supra, 63 Cal.4th at p. 671.) He was convicted by a jury on charges that included active participation in a criminal street gang under section 186.22(a), and was found to have committed his crimes for the benefit of a gang within the meaning of section 186.22(b). (Sanchez, at pp. 672-673.) The Fourth District reversed his conviction on the substantive gang offense in light of Rodriguez, supra, 55 Cal.4th at page 1134, which holds that active participation in a criminal street gang requires the commission of an underlying felony with at least one other gang member. (Sanchez, at p. 673, fn. 5.) The California Supreme Court granted review of the defendant’s Crawford claim, which had been rejected by the appellate court. (Sanchez, at p. 670.) The high court found prejudice in the admission of hearsay testimony by the prosecution’s gang expert that was based on the contents of police reports and other hearsay sources. (Id. at p. 695.) The hearsay, which was outside of the expert’s personal knowledge and not corroborated by any admissible evidence, was essentially the only proof of the defendant’s membership in a particular gang and contained allegations of his involvement in prior incidents that tended to show he was dealing drugs for the benefit of his gang. (Id. at pp. 672-673.) Excluding the hearsay, the only evidence to support the section 186.22(b) enhancement was the defendant’s arrest at a location within “gang territory.” (Sanchez, at p. 699, italics added.) The gang findings were reversed on the basis of Crawford error, but the judgment was affirmed as to the remaining convictions. (Sanchez, at p. 700.).
Analysis
Based on Sanchez, it is clear the court erred in allowing Shaff to testify regarding case-specific facts, e.g., those tending to show Montenegro and Lopez were members of the Varrio Bakers gang, which were contained in numerous police reports, because they related testimonial hearsay. Assuming the court also erred in allowing the officer to testify regarding the contents of field identification cards, the gang registration form, and Montenegro’s booking interview, because the information derived from these sources was also testimonial hearsay, we will conclude these errors were harmless.
“Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24. [Citation.] ‘Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ [Citation.] The harmless error inquiry asks: ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’ ” (People v. Geier (2007) 41 Cal.4th 555, 608.)
In Sanchez, the court stated that “only when a prosecution expert relies upon, and relates as true, a testimonial statement would the fact asserted as true have to be independently proven to satisfy the Sixth Amendment.” (Sanchez, supra, 63 Cal.4th at p. 685.) The court also stated that an expert may rely upon hearsay in forming an expert opinion, but cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Id. at pp. 685-686, italics added.)
Montenegro raises a confrontation clause claim only against the case-specific facts of Montenegro’s and Lopez’s membership in the Varrio Bakers criminal street gang which were crucial in proving both the gang participation offense and enhancement. Montenegro’s active membership in the Varrio Bakers gang established the first two elements of the gang offense, i.e., his active participation in a criminal street gang and his knowledge that the gang had engaged in a pattern of criminal activity. (Rodriguez, supra, 55 Cal.4th at p. 1130.) Lopez’s active membership in the Varrio Bakers gang established the third element of this offense, i.e., “willful promotion, furtherance, or assistance in any felonious conduct by members of [the] gang.” (Ibid.) Their membership in the Varrio Bakers gang was also vital in proving the gang enhancement because it bolstered the conclusion that Montenegro committed the possession for sale offense for the benefit of and or in association with a criminal street gang with “the specific intent to promote, further, or assist any criminal conduct by gang members.” (§ 186.22, subd. (b);
cf. Sanchez, supra, 63 Cal.4th at p. 698.).
In Sanchez, the Supreme Court stated that hearsay evidence must be admitted through an applicable hearsay exception. “Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner.” (Sanchez, supra, 63 Cal.4th at p. 684.) “Thus, only when a prosecution expert relies upon, and relates as true, a testimonial statement would the fact asserted as true have to be independently proven to satisfy the Sixth Amendment.” (Sanchez, at p. 685.)
Shaff’s testimony about case-specific facts that was based on non-testifying officers’ contact with Montenegro and Lopez and the gang registration form was testimonial hearsay and, thus, inadmissible. The record, however, contains other properly admitted evidence that supports Shaff’s opinion that Montenegro and Lopez were active members of the Varrio Bakers gang on February 20, 2014.
Officer Martin testified that when he contacted Montenegro on January 23, 2010, Montenegro admitted he was a member of the Varrio Bakers gang. Officer Stratton testified that when he contacted Montenegro on February 16, 2010, Montenegro admitted he was still a member of the Varrio Bakers gang. Officer Kroeker testified that in April 2010, during a consensual encounter, Montenegro admitted to him that the “V” on the hat he was wearing and his tattoos of the letters “V” and “B” stood for Varrio Bakers and that he was a member of the gang.
Following Montenegro’s April 28, 2010, arrest, Montenegro admitted to Officer Shaff that he grew up in the Varrio Bakers gang, that his tattoos of the letters “V” and “B” stood for Varrio Bakers, and that his gang moniker was “Playboy.” Although he claimed he was no longer active in the gang, he admitted he was still in the “mix” and still “hung out.” Additionally, when questioned whether another individual was a Varrio Bakers gang member, Montenegro stated that he was not and that Montenegro would know whether someone was in the gang. On May 19, 2010, after being arrested with another gang member and a third man for narcotics sales and gang charges, Montenegro told Shaff that he was a nonactive member of the Varrio Bakers gang, but that he still hung out with gang members. As a result of an incident in November 2010, Montenegro was convicted of assault with a deadly weapon with a gang enhancement.
Moreover, Garduno, a former Varrio Bakers gang member, testified that he was familiar with Montenegro, that he knew him to be a member of the gang, and that in 2012, Montenegro still had influence in the gang. When he was arrested on February 20, 2014, Montenegro was with Lopez, another Varrio Bakers gang member, and Montenegro admitted he was a Sureño gang member. Further, during his testimony, Montenegro admitted that he had been a Varrios Bakers gang member, although he claimed to have dropped out of the gang in 2007.
With respect to Lopez, Officer Shaff testified that during unspecified street contacts he had with Lopez or during which he was present, Lopez admitted being a Varrio Bakers gang member. Shaff also testified that when he contacted Lopez on August 6, 2007, Lopez admitted he was an active member of the Varrio Bakers gang who was jumped into the gang at age 15. Shaff also saw that Lopez had several gang tattoos. Lopez’s involvement in an incident that occurred on May 1, 2010, resulted in his conviction for possession of methamphetamine and active participation in a street gang. On February 20, 2014, Lopez accompanied Montenegro while Montenegro possessed for sale a large amount of methamphetamine. Thus, the testimonial hearsay was duplicative of ample independent evidence in the record that supports Shaff’s opinion that Montenegro and Lopez were both gang members.
Montenegro contends the error in admitting the police reports and other testimonial evidence that associated Montenegro and Lopez with other gang members was not harmless beyond a reasonable doubt because the “sheer volume of police reports and contacts” likely caused jurors to conclude Montenegro and Lopez were gang members. We disagree. As noted above, the testimonial hearsay was duplicative of properly admitted evidence that in Montenegro’s case consisted of several officers’s first-hand knowledge of Montenegro’s admissions that he was a gang member. Moreover, Montenegro admitted he had been a Varrio Bakers gang member since he was 13 years old and the only dispute as to him was whether he was still a gang member in February 2014 when he committed the underlying offenses. Further, the evidence that Lopez was a gang member was unrebutted. Thus, we conclude that the admission of testimonial hearsay was harmless beyond a reasonable doubt. (Cf. Sanchez, supra, 63 Cal.4th at p. 699 [admission of testimonial hearsay prejudicial in proving gang enhancement where an officer’s recitation of testimonial hearsay was the main evidence of the defendant’s intent to benefit a gang].)
DISPOSITION
The judgment is affirmed.