Filed 12/26/17 P. v. Rivera 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

MIGUEL ANGEL RIVERA,

Defendant and Appellant.
H041937
(Santa Clara County
Super. Ct. No. C1246847)



While on parole, defendant Miguel Angel Rivera fired a gun at a shooting range on three occasions. Video footage of two of those visits was posted on defendant’s public Facebook page. Also posted on that page were several photographs that a gang expert opined were gang-related. A jury convicted defendant of three counts of possessing a firearm as a felon. (Pen. Code, § 29800, subd. (a)(1).) Gang enhancements were alleged for two of those counts, and the jury found both true. (Pen. Code, § 186.22, subd. (b)(1)(A).) In defendant’s original briefing, he contends there was insufficient evidence to support the gang enhancements because there were no indicia of gang activity in the videos that were posted online. In a supplemental opening brief, defendant argues the trial court erred by allowing the prosecution’s gang expert to discuss case-specific, testimonial hearsay in violation of the principles articulated in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We conclude that when the videos are viewed in the context of other information on defendant’s Facebook page, a reasonable trier of fact could find the gang enhancements true beyond a reasonable doubt. We also conclude that any error in admitting the gang expert’s testimony was harmless beyond a reasonable doubt. For those reasons, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
Defendant was charged with three counts of possessing a firearm as a felon, all occurring in November 2012. (Pen. Code, § 29800, subd. (a)(1); unspecified statutory references are to this Code.) Two of those counts were alleged to have been committed for the benefit of, at the direction of, or in association with a criminal street gang known as the Taliban. (§ 186.22, subd. (b).)
A. DEFENDANT’S ADMISSIONS AND CONCESSIONS
Defendant made certain admissions during his trial testimony and concessions in his appellate briefing that narrow the issues to be considered here. Defendant admitted at trial that he fired guns at a shooting range on the three occasions alleged in the operative information. Defendant admitted he was on parole on all three occasions. Defendant acknowledged that he had a publicly-accessible Facebook page and that video footage of him firing guns had been posted to that page. Defendant admitted posting some, but not necessarily all, of the videos from the shooting range on his Facebook page. In his reply brief defendant “concedes that sufficient evidence was introduced to support a finding that the Taliban was a criminal street gang and that appellant was a member.” Without withdrawing that concession, defendant contends in his supplemental opening brief that some of the gang evidence was inadmissible under Sanchez, supra, 63 Cal.4th 665.
B. TRIAL EVIDENCE
1. Law Enforcement Investigation
A district attorney’s office inspector testified that he happened upon what would later be identified as defendant’s Facebook page while investigating a different case. The inspector noted four videos posted to the page; three showing defendant firing a gun at a shooting range, and one showing defendant checking a target at the range. The inspector obtained a search warrant and received a copy of what was on the Facebook page. The matter was referred to the Milpitas Police Department for further investigation once the inspector determined that the shooting range depicted in the video was located in Milpitas.
A Milpitas Police Department lieutenant testified about investigating defendant’s Facebook page. The name for defendant’s Facebook page was “Fast Money Miggy,” with “RIP Paris” in parentheses next to it. The lieutenant made a copy of the subject videos by pointing a digital camera at his computer monitor while playing the videos. The recordings were admitted into evidence and played for the jury, but a technical difficulty resulted in the 15- to 30-second videos playing at an increased speed such that they played for only two or three seconds per video. Five screen shot photographs from the videos were also admitted into evidence. One of the videos was titled “Real shooter ... i does this shit 357 snub.” Defendant is pictured looking at the camera in three of those screen shots.
2. Prosecution Gang Expert
City of Menlo Park Police Officer Christopher Adair testified as an expert in criminal street gangs and gang crimes. Adair testified about the Taliban street gang, which he stated was formed around 2003 as a subsidiary of the Midtown Hogs to fight back against a Norteño gang affiliate that was encroaching on territory claimed by the Midtown Hogs. The gang has no connection to Afghanistan; Adair believed they chose the Taliban name to instill fear in the public. Adair opined that there were 50 to 70 Taliban gang members.
Adair testified that other names affiliated with the Taliban are Yellow Tape, Lawless, and Midtown Menlo. Members often wear camouflage clothing, as well as “middle eastern head wraps.” Two hand-signs are common. One involves holding the “left hand flat and the[] right hand underneath it” while making “a circle with the[] index and thumb finger of the right hand,” to make a TB symbol. The other involves making an MM sign by crossing the ring and middle finger on each hand and pointing the hands toward the ground. References to “Paris” also suggest affiliation with the Taliban gang; Paris Meacham was a deceased Taliban gang member who Adair testified was “idolized almost as a martyr in that gang.” A popular slogan is “ABCG,” meaning “anybody can get it.” One of the Taliban’s rival gangs is called Da Ville.
While exploring Adair’s knowledge of violent interactions between the Taliban and Da Ville gangs, the prosecutor asked: “Are you familiar with ... the shooting by a Taliban member Gerry Coneal against a Da Ville member?” There was no objection to the question. Adair responded, “Yes. I was there for that.” Adair testified that he was aware that the Taliban had previously been found to be a criminal street gang, and testified that his knowledge was based on: “Cases that I have investigated and the individuals that work in the gang unit with me have investigated Taliban street gang members where they have been charged with being involved in criminal street gang activity and convicted of it and/or been charged with a crime and been placed on probation where they pled to gang charges for being a Taliban gang member.”
Adair testified that the Taliban’s primary activities include murder, criminal threats, burglary, and drug trafficking. When asked about recent contacts, Adair mentioned conducting a traffic stop where the passenger was Tyrone Lampley, “an individual I know very well, Taliban gang member.” Lampley and the driver had both been validated by the Menlo Park Police Department gang unit as Taliban gang members. Lampley was found in possession of a loaded, stolen firearm in his waistband and a subsequent probation search of his residence uncovered “numerous items of Taliban indicia in his bedroom.”
The prosecution introduced documentary evidence about three predicate offenses committed by Taliban gang members and asked Adair to describe them. Wilbert Ard was convicted of carrying a loaded firearm. Adair opined that Ard was a Taliban gang member, based among other things on “numerous contacts that I’ve had with Mr. Ard, numerous photographs, evidence that has been presented that I’ve personally taken.” Dwayne Henry was convicted of grand theft. Adair opined that Henry was a Taliban gang member, based on Adair’s personal knowledge. Adair explained that he had a “fairly long relationship” with Henry, that Henry is “very open about his involvement in the Taliban,” and that Adair had “seen him wearing Taliban-type clothing with the camouflage, numerous photos, pictures, videos [ ] of him using Taliban gang hand signs.” Oliver Ware was convicted of voluntary manslaughter. Adair opined that Ware was a Taliban gang member based “[l]argely on the report written by the detectives” in that case. Adair also explained that he had seen “photographs of [Ware] using Taliban gang signs, wearing Taliban clothing.”
Adair testified that the Taliban gang uses social media to “get their message out about who they are and what they’re about, but more so is they present it as a warning to benefit them.” “They will give on their Facebook pages, on YouTube videos clear threats, you know, to other gangs, to rival gangs this is what we do, you know. This is how violent we are.” He testified: “I’ve had the occasion to have viewed people’s Facebook pages from rival gang members, people having issues with the Taliban ... where these people are going back and forth on a computer or a cell phone and never even have real words with each other.”
The prosecutor led Adair through printouts of about 60 photographs from defendant’s Facebook page that the district attorney’s office had obtained from Facebook via search warrant. One photo was a picture defendant took in a mirror wearing a camouflage jacket and a black head wrap. Adair stated it is “commonplace for the Taliban gang to wear this type of attire.” Another photo showed defendant with a deceased Taliban gang member, Stoney Gibson. The title of the photograph was “R.i.p my nigga cold #stonenation.” Adair described a photo of a revolver next to a box of bullets, which was uploaded the same month as defendant’s visits to the shooting range. The title was “#357 #bangbang.” Another photo showed what Adair opined was a shooting range target with multiple holes in it. Its title included: “#stonenation #Abcg.” Older photographs were similar in subject matter to those from 2012. Several showed people displaying what Adair testified were gang hand signs for the Taliban gang and the Midtown Menlo gang.
The prosecutor posed a lengthy hypothetical scenario to Adair based on the facts of the case: “The suspect is a convicted felon who has been told on numerous occasions that he cannot possess weapons, especially guns. The suspect then goes to a gun range with friends of his who are not gang members. The suspect not only possesses guns there but fires guns numerous times on at least three different occasions. On two of ... these three occasions he posts videos ... showing him shooting various guns. On one of the captions he writes ‘real shooter. I does this shit .357 snub.’ [And] it’s an open Facebook page, so everyone, whether you’re friends with him - - this suspect or not, can view the page.” Adair opined that the hypothetical defendant’s conduct in possessing the weapons and allowing videos of himself firing the weapons to be posted on his Facebook page would benefit a criminal street gang and would be carried out with the specific intent to promote, further, or assist criminal conduct by gang members. He explained: “Just as any other gang that I’ve ever heard of, ... the one thing that they all have in common is that a gang cannot function if they cannot create fear, and this is exactly what this is doing, and we’re using technology to do it.” According to Adair, posting things on Facebook “intimidates the rival gangs. It causes [ ] fear to the community, so they won’t come forward, which I’ve personally experienced with the Taliban gang, and it increases his status personally in the gang, as well as promotes the whole gang as a feared entity in the community.” Adair also testified that it is beneficial for a gang member to be proficient with firearms.
Adair acknowledged on cross-examination that he could not tell what particular gang might have been intimidated by the videos, or even whether any rival gang saw the videos at all. He agreed with defense counsel that the videos by themselves were somewhat innocuous. The individuals with defendant at the shooting range were not gang members, no one was wearing gang clothing, and no one made gang statements or threw gang signs.
3. Defendant’s Gang Expert
Mark Harrison, a police practices consultant, testified for the defense as an expert on criminal street gangs. Harrison opined that the Taliban gang was a criminal street gang, and that defendant was a Taliban gang member. He based his opinion that the Taliban was a criminal street gang on “the documentation, the ongoing activities, the collective nature of their activities, the fact that they wear certain hats to identify themselves, whether it’s wearing, you know, a boonie cap with woodland camo, which seems to be part of their M.O. or wearing a Tampa Bay cap for Taliban and things of that nature which show that in a collective nature that they are a group with a common sign or symbol, and whether they change their name is not necessarily relevant. It’s the activities and their cohesive nature of committing crimes.”
Harrison did not believe that firing guns at a shooting range and posting videos of firing guns on Facebook benefited the Taliban gang. He based that opinion on the lack of gang indicia in the videos. Harrison opined that “to suggest that because he shot a firearm and it’s on video that that would scare people I think raises a level of lunacy.”
4. Defendant’s Testimony
Defendant testified that he went to the shooting range on three occasions to have fun, and that the videos were posted on Facebook to memorialize the enjoyable visits to the shooting range. He acknowledged knowing certain people Adair had described (including Gibson and Meacham), but testified that he did not think they were gang members.
C. VERDICT AND SENTENCING
The jury found defendant guilty as charged, and found the two gang allegations true. The prior conviction allegations were tried to the court after the parties waived jury, and the trial court found the allegations true. The trial court sentenced defendant to 14 years 4 months in state prison.
II. DISCUSSION
A. FOUNDATION FOR ADAIR’S EXPERT OPINION ABOUT SOCIAL MEDIA
Much of defendant’s appellate argument is an attack on the foundation for Adair’s testimony about the use of social media by gang members. Adair testified that the Taliban gang uses social media to “get their message out about who they are and what they’re about,” and to “present it as a warning to benefit them.” He testified that he had personally “viewed people’s Facebook pages from rival gang members, people having issues with the Taliban ... where these people are going back and forth on a computer or a cell phone and never even have real words with each other.”
Defendant argues that Adair gave “only the scantiest foundation” for his assertions about the Taliban’s use of social media. He criticizes Adair for not identifying “who these gang members were, or what issues they were discussing on the cell phones and Facebook pages.” Defendant also notes that Adair did not “connect this type of communication with [defendant] (or his Facebook page).”
The problem with defendant’s argument is that his trial counsel had an opportunity to explore the foundation for Adair’s testimony during cross-examination, but failed to do so. Adair acknowledged during cross-examination that he had no information about who viewed defendant’s Facebook posts. But defendant’s trial counsel never asked Adair about his testimony regarding Taliban members using Facebook to further gang-related objectives.
That Adair’s testimony regarding social media was based on personal knowledge distinguishes this case from In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), cited by defendant. In that case, the Court of Appeal found that the prosecution had not provided adequate foundation to prove the primary activities of the alleged street gang because the gang expert’s testimony on the subject consisted solely of statements that “he ‘kn[e]w’ that the gang had been involved in certain crimes.” (Id. at pp. 611–612.) Unlike the unsupported expert testimony in Alexander L., Adair explained that his knowledge about the Taliban’s social media activities was based on personally viewing “Facebook pages from rival gang members, people having issues with the Taliban.” Because there was a foundation for Adair’s testimony, defendant’s assertion that this case involved a “bare conclusion, unsupported by proof of the facts allowing jurors to determine the validity of a gang expert’s opinion” is inaccurate.
B. SUFFICIENT EVIDENCE SUPPORTED THE GANG ENHANCEMENTS
Defendant argues there was insufficient evidence to support the jury’s findings that defendant committed the crimes charged in counts 1 and 2 “for the requisite purpose and with the requisite intent to satisfy” the section 186.22, subdivision (b) gang enhancements.
1. Standard of Review
To prove the gang enhancements, the prosecutor had to demonstrate that defendant possessed the firearms at issue here “for the benefit of, at the direction of, or in association with [the Taliban] criminal street gang,” and “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) “In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We presume the “existence of every fact that the trier of fact could reasonably deduce from the evidence” to support the judgment. (People v. Medina (2009) 46 Cal.4th 913, 919.) To overturn a conviction, “it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
2. Viewed as a Whole, Sufficient Evidence Supported the Enhancements
Defendant focuses on the relatively innocuous nature of the videos that were posted on Facebook. He argues: “As Adair admitted ... , no gang clothing, gang tattoos, gang signs, or gang slogans are on display in the videos.” If those videos had been the only evidence before the jury, defendant’s sufficiency argument would be much stronger. But those videos must be viewed in the context of all the evidence presented to the jury.
The videos were posted to defendant’s public Facebook page. The title for that page included “RIP Paris” in parentheses. Adair testified that Paris Meacham was “idolized almost as a martyr” by the Taliban gang. Several photographs posted in 2012 to defendant’s Facebook page strongly suggested gang involvement. Those included the photo of defendant wearing clothing Adair opined was Taliban gang-related, the photo of defendant with deceased Taliban member Stoney Gibson, and the photo of a shooting range target with bullet holes and a title that included “#Abcg” (which Adair linked to the Taliban slogan “anybody can get it”). And older photographs dating to 2010 showed what Adair described as gang-related activities, such as wearing gang clothing and throwing hand signs.
The reference to a person idolized by the Taliban gang in the title of defendant’s public Facebook page supported a finding that defendant was, in effect, advertising his Taliban gang membership online. A rational jury could find that the photographs posted in temporal proximity to the videos further advertised the Taliban gang. The videos showed defendant firing guns, and one is captioned “Real shooter ... i does this shit 357 snub.” A rational jury could conclude that defendant’s reference to himself as a real shooter who “does this shit” meant that he was someone who was willing to use a gun in a setting other than a shooting range. The foregoing evidence, coupled with Adair’s foundational testimony about the Taliban gang’s use of social media to intimidate others, provided substantial evidence to support findings that defendant possessed firearms for the benefit of the Taliban gang, and with the specific intent to promote, further, or assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).)
3. The Prosecution Need Not Prove Actual Fear or Intimidation
Defendant argues there is “not one shred of evidence in this case that any member of any rival gang ever viewed the videos ... or was intimidated by them.” But section 186.22 does not require a prosecutor to show that anyone was actually threatened or intimidated by defendant’s actions. The prosecutor merely had to show that defendant possessed firearms and posted videos (or knowingly permitted the videos to remain posted) on his Facebook page for the benefit of the Taliban gang and with the specific intent to further criminal conduct by members of that gang.
4. The Enhancements Relate to Defendant’s Possession of Firearms
Defendant contends the enhancements must be stricken because he was not charged with posting videos on Facebook for a gang purpose, but rather with possessing firearms at a shooting range for a gang purpose. Defendant argues “it is not [defendant’s] possession of the firearm that the prosecution contends was committed” for a gang purpose, “but his posting of the videos on his Facebook page.” (Italics in original.) He bases that distinction on the prosecutor’s statement during closing argument that there was no enhancement to the third possession count “ ‘because he did not take that additional step going [sic] and putting it on Facebook.’ ” But it was the firearm possession that was recorded and posted. A rational jury could conclude that defendant treated the firearm possession and its publication as a single course of conduct, such that his intent was the same in possessing the firearms as it was in showing videos of them on his Facebook page. There is no indication that defendant was surreptitiously recorded. To the contrary, more than one of the individual screen shots show defendant looking directly at the camera. More fundamentally, Adair described how proficiency with firearms benefits a criminal street gang. A rational jury could conclude that defendant’s shooting practice itself benefited the gang.
Defendant cites three cases for the proposition that “a gang expert’s opinion will be insufficient whenever it is based only on speculation and lacks any underlying factual basis to support it.” (In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.); People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon); People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa).) We do not quarrel with the legal proposition, but it is inapplicable here. As we have already stated, adequate foundation supported Adair’s testimony. That foundation, together with reasonable inferences drawn from the videos in the context of defendant’s Facebook page, supply a nonspeculative basis for Adair’s opinion.
Frank S., Ramon, and Ochoa are factually distinguishable. The court in Frank S. found insufficient evidence to support a gang enhancement for the juvenile’s possession of a knife where the “prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.” (Frank S., supra, 141 Cal.App.4th at p. 1199.) The Ramon court found insufficient evidence to support gang enhancements for receiving a stolen vehicle and being a felon in possession of a firearm where there were no facts from which the expert could discern whether the defendant was acting on his own behalf or on behalf of his gang in committing the crimes. (Ramon, supra, 175 Cal.App.4th at p. 851.) And the Ochoa court found insufficient evidence to support a gang enhancement for carjacking where Ochoa “did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti” during the offense. (Ochoa, supra, 179 Cal.App.4th at p. 662.) By contrast, here defendant possessed firearms and allowed videos of him using those firearms to appear on his public Facebook page which contained extensive gang-related content. That evidence together with Adair’s foundational testimony about the Taliban’s use of social media provided substantial evidence from which the jury could find the enhancements true.
The fact that the available evidence could lead to differing conclusions, as is evident from the defense expert’s opinion that defendant did not act for a gang-related purpose, does not render either conclusion baseless. It was up to the jury to weigh the competing expert opinions and to decide if the prosecution had proven its case beyond a reasonable doubt. The jury’s decision demonstrates that it found Adair’s testimony more credible, and we do not substitute our evaluation for that of the fact finder. (People v. Jones (1990) 51 Cal.3d 294, 314.)
C. PEOPLE V. SANCHEZ AND GANG EXPERT TESTIMONY
We granted defendant’s request to file a supplemental opening brief, in which he contends that certain testimony by Adair violates the evidentiary rules announced in People v. Sanchez, supra, 63 Cal.4th 665, a case decided after defendant filed his reply brief in this case. The People argue that Adair’s testimony did not violate Sanchez, and that any arguable error was harmless.
1. People v. Sanchez
In Sanchez, the Supreme Court reviewed and updated its jurisprudence regarding hearsay and expert testimony. The Sanchez court noted that 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.) But “an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge.” (Ibid.) The court defined case-specific facts as “those relating to the particular events and participants alleged to have been involved in the case being tried.” (Ibid.)
Whether a fact related by an expert is case-specific versus general knowledge determines its admissibility. An expert “may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.” (Sanchez, supra, 63 Cal.4th at p. 685.) In that sense, the court’s decision did not “affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise.” (Ibid.) But what “an expert cannot do is 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 p. 686.) The Sanchez court determined that “[w]hen 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.” (Ibid.) And if the expert in a criminal case relates case-specific facts that are testimonial hearsay, that testimony will violate the Sixth Amendment’s confrontation clause “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.” (Ibid.) The Sanchez court noted there is general agreement that “[t]estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony.” (Id. at p. 689.)
2. Any Error Was Harmless
Defendant identifies four areas of Adair’s testimony that he argues constituted case-specific, testimonial hearsay.
a. Expert’s Background Knowledge
Regarding the Taliban’s primary activities, defendant argues that Adair relied on “what he was told or what he read in police reports or other records.” Defendant quotes Adair as stating that his knowledge was based on “ ‘[c]ases that ... the individuals that work in the gang unit with me have investigated Taliban street gang members.’ ” But defendant’s quotation from Adair’s testimony is misleading because the inserted ellipsis omits Adair’s reference to his personal knowledge of the Taliban’s activities. Adair testified his knowledge was based on “[c]ases that I have investigated,” as well as cases he learned about from other officers. (Italics added.) In any event, the foregoing was permissible “background information and knowledge in the area of his expertise.” (Sanchez, supra, 63 Cal.4th at p. 685.)
b. Testimony About Tyrone Lampley
Adair testified that he had recently conducted a traffic stop in which a Taliban member named Tyrone Lampley was found with a loaded, stolen firearm. Defendant argues that “Adair relied on the gang unit’s validation for his conclusion that Lampley was a Taliban member.” Defendant does not explain how the testimony about Lampley was case-specific. The facts of that traffic stop had nothing to do with “the particular events and participants alleged to have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) The testimony about Lampley was background information offered to describe the Taliban gang’s primary activities, not as a predicate offense offered to prove the Taliban had engaged in the requisite “ ‘pattern of criminal gang activity.’ ” (§ 186.22, subd. (e).)
Even if the testimony about Lampley was case-specific, Adair’s testimony demonstrates that he had personal knowledge of the facts supporting his opinion that Lampley was a Taliban gang member. Adair testified that Lampley was “an individual I know very well,” and that during a probation search of Lampley’s residence Adair found Taliban gang indicia. On this record, defendant has not demonstrated that Adair based his opinion about Lampley’s gang membership on case-specific hearsay. (People v. Giordano (2007) 42 Cal.4th 644, 666 [error must be affirmatively shown].)
c. Testimony About Gerry Coneal
At trial, the prosecutor asked Adair if he was familiar with recent violence between the Taliban and the rival Da Ville gang; Adair answered “[v]ery much so.” The prosecutor later asked Adair if he was “familiar with ... the shooting by a Taliban member Gerry Coneal against a Da Ville member?” Defense counsel did not object. Adair then described the facts of that incident and noted that Coneal had been indicted for murder.
Defendant argues “the ‘fact’ that Coneal was a Taliban gang member was assumed in the prosecutor’s question, and there was no indication whether Adair had personal knowledge that this was true.” But defendant forfeited that argument by failing to object to the question on the basis that it assumed facts not in evidence. (People v. Blacksher (2011) 52 Cal.4th 769, 827 [objection necessary to allow reviewing court to determine the evidentiary question in its appropriate context].) The testimony about Coneal also does not appear to be case-specific because it does not involve the particular events and participants in the case being tried, nor was it offered as a predicate offense to support the gang enhancement. (Sanchez, supra, 63 Cal.4th at p. 676.)
d. Testimony About Oliver Ware
One of the three predicate offenses relied on to prove that the Taliban had engaged in a pattern of criminal gang activity was Oliver Ware’s conviction for voluntary manslaughter. Adair opined that Ware was a Taliban gang member based “[l]argely on the report written by the detectives in East Palo Alto.” But Adair also noted that he had personally “viewed photographs of [Ware] using Taliban gang signs, wearing Taliban clothing,” and had also seen photographs of him holding firearms.
The parties dispute whether testimony about the gang membership of individuals involved in predicate offenses involves case-specific facts, and the People note a split of appellate authority on the subject. (See People v. Meraz (2016) 6 Cal.App.5th 1162, 1174–1175, review granted March 22, 2017, S239442 [testimony about gang membership of individuals committing predicate offenses not case-specific]; People v. Ochoa (2017) 7 Cal.App.5th 575, 581–583, 587–589 [“out-of-court statements by individuals [convicted of predicate offenses] admitting being members of the [subject gang]” are case-specific hearsay].) We will assume for purposes of this opinion that testimony relating out-of-court statements about the gang membership of those committing predicate offenses is case-specific when used to demonstrate the Taliban gang’s pattern of criminal gang activity. Assuming it was error to allow Adair to testify that Ware was a Taliban gang member based on statements in a police report, that error would likely implicate the Sixth Amendment’s confrontation clause because the content of police reports would be generally testimonial. (Sanchez, supra, 63 Cal.4th at pp. 694–695.) As such, the People bear the burden of showing that the error was harmless beyond a reasonable doubt. (Id. at p. 698.)
Though defendant argues “Adair had no personal knowledge that Oliver Ware was a Taliban gang member,” Adair testified that he had personally viewed photographs of Ware using gang signs and wearing Taliban clothing. Adair’s opinion testimony that Ware was a Taliban gang member was based not on hearsay but on his personal knowledge derived from reviewing those photographs. (See Sanchez, supra, 63 Cal.4th at p. 686 [expert cannot relate case-specific facts “unless they are independently proven by competent evidence”].) The predicate offense involving Ware was also unnecessary to establish the Taliban gang’s pattern of criminal gang activity. Section 186.22, subdivision (e) defines a pattern of criminal gang activity as “the commission of ... or conviction of two or more” of the offenses listed in that subdivision. (Italics added.) As defendant acknowledges, Adair had personal knowledge of the other two predicate offenses the prosecution introduced, such that those two offenses independently supported the gang enhancements. The current charged crime of possessing a firearm by a felon could also serve as a predicate offense. (§ 186.22, subd. (e)(31); People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) Significantly, defendant’s own gang expert opined that the Taliban was a criminal street gang and that defendant was a member of that gang. We find any error harmless beyond a reasonable doubt.
III. DISPOSITION
The judgment is affirmed.





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Grover, J.




WE CONCUR:



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Premo, Acting P. J.




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Bamattre-Manoukian, J.








H041937 - People v Rivera