Filed 9/14/18 P. v. Saephan CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Kao Lai Saephan, a convicted felon, unlawfully possessed a shotgun and shotgun ammunition, and he did so for the benefit of a street gang. He contends we must reverse his convictions and enhancements because (1) the trial court erroneously admitted his prior admission of gang membership that was obtained in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) insufficient evidence, including testimonial hearsay, support the jury’s gang enhancement findings; and (3) prosecutorial misconduct unlawfully shifted the burden of proof. He also asserts sentencing error.

Except to correct an unauthorized sentence, we affirm the judgment.

Facts and Proceedings

While patrolling in a marked patrol car on July 31, 2014, Sacramento County Sheriff’s Deputy Jason Hernandez saw defendant alone in the backseat of a Toyota Camry station wagon. The Camry was parked in front of 7916 Loucreta Drive. Deputy Hernandez ran the Camry’s license plate through his computer system while driving around the block. The plate came back as stolen, and Deputy Hernandez returned to the Camry.

He saw defendant still in the Camry, which had not moved. Defendant was kneeling with one knee on the rear seat and his other foot on the ground. He appeared to be reaching in to retrieve or search for something in the rear passenger area.

Deputy Hernandez turned on his emergency lights and pulled up behind the Camry. Defendant got out of the car and walked toward an open garage where other people were present. Deputy Hernandez ordered defendant back, detained him in handcuffs, and placed him in the rear seat of his patrol car. He ran the Camry’s VIN and learned the car had been stolen.

Deputy Hernandez searched the Camry. He found a bag on the rear passenger floorboard, inside of which was a pouch containing 16 rounds of shotgun ammunition. He also found a short-barreled shotgun underneath the driver seat, with its barrel facing forward and its handle facing to the rear. It was operable and compatible with the recovered ammunition. The gun was within reaching distance of someone seated in the rear driver side passenger seat.

Continuing the search, Deputy Hernandez found a large machete in the car’s rear compartment. It was accessible to someone seated in the rear passenger seat. In the driver’s door pocket, he found a wallet containing a credit card in defendant’s name and tools commonly used to steal motor vehicles. He also found seven cell phones.[1]

Defendant was shirtless. The letters “TRG” were tattooed across his abdomen, and the letters “M” and “P” were tattooed on his forearms. Deputy Hernandez had previously contacted members of the Tiny Rascal Gangsters (TRG) street gang at the 7916 Loucreta Drive address and in that neighborhood. He had noticed an increased TRG presence in the neighborhood during the preceding three or four months. The neighborhood had several gangs, and TRG’s increased presence had created additional problems.

Deputy Hernandez read defendant his Miranda rights and questioned him. Defendant at one point denied being in the Camry, but eventually he admitted it. He said he was walking from his uncle’s home a few doors down to his cousin’s home when he saw the car. He was going through it to find out who owned it. He denied owning the credit card that bore his name and everything else found in the car. He had just moved to Sacramento from Washington and was staying with his uncle, but he was unable to provide Deputy Hernandez with his uncle’s address and he refused to point out his uncle’s house.

Sacramento County Sherriff’s Detective Taizo Takahashi testified for the prosecution as an expert in Asian street gangs. The Tiny Rascal Gangsters gang is often known by the initials “TRG.” TRG members wear gray to identify themselves as members of the gang and commonly tattoo themselves with the initials TRG. The “M” and “P” tattoos on defendant’s arms signified the gang-related concept of “Mien Pride.”

In Detective Takahashi’s opinion, defendant was an active member of TRG, and a hypothetical person with defendant’s characteristics who committed the acts he committed did so to benefit and promote the gang. Detective Takahashi based his opinion in part on police reports prepared by other officers regarding other incidents involving defendant. One of those reports indicated that defendant admitted to the reporting officer he was a TRG member. We describe Detective Takahashi’s testimony in detail below.

A jury found defendant guilty of possession of a firearm by a felon and unlawful possession of ammunition. (Pen. Code, §§ 29800, subd. (a)(1); 30305, subd. (a)(1); unless otherwise stated, statutory section references that follow are found in the Penal Code.) It also found defendant committed the crimes for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) It acquitted defendant of receiving a stolen vehicle. (§ 496d, subd. (a).) The court found defendant had served two prior prison terms. (§ 667.5, subd. (b).)

The court sentenced defendant to state prison for an aggregate term of nine years, calculated as follows: The upper term of three years for the firearm possession plus the upper term of four years for the gang enhancement, plus consecutive one year terms for each of the prior prison enhancements. The court imposed a concurrent middle term of two years on the ammunition possession plus one-third the middle term on that offense’s gang enhancement.

Discussion

I

Miranda

Defendant contends the trial court committed Miranda error when it admitted into evidence a statement he made admitting he was a member of TRG in response to a police officer’s question while detained in a different incident and before receiving his Miranda warning. He asserts the questioning was custodial interrogation, the Miranda violation was deliberate, and the error was prejudicial. We disagree. Defendant was not in custody for purposes of Miranda when he answered the officer’s question.

A. Background

Before trial, defendant moved to exclude any admissions he made of gang association or membership relied upon by Detective Takahashi that were not shown to be admissible under Miranda. The prosecution asked for a hearing to establish a statement was admissible under Miranda.

Sacramento Police Officer John Pullen testified that on December 21, 2012, he and other officers went to a residence on 37th Street in Sacramento. A week prior, other officers had attempted to contact a person who lived there, but the person fled out the back. Officer Pullen returned to the residence to contact the same subject.

The officers were given permission to enter the residence. Other officers watching the back of the house advised that someone was trying to flee out of the window. Officer Pullen set up in the hallway and demanded people in the bedroom to come out. Three people came out of the bedroom; one of whom was defendant.

When the three came out of the bedroom, officers pat searched them. Officer Pullen could not remember if he handcuffed defendant at this point. He did not record in his report whether he handcuffed defendant. After the searches, the officers had the men sit in the living room.

Defendant was not free to leave at this point. Officer Pullen stated, “[A]t that point we had people attempting to flee out the back of a residence. We still had to search the residence per the parole status for one of the subjects. Still had to complete running people. That had not been already completed, so our investigation was not complete.”

Officer Pullen spoke with defendant while an officer was “running” the three subjects and other officers were searching the residence. He did not read defendant his Miranda rights. They had a calm, casual conversation. Officer Pullen noticed defendant was wearing mostly gray, and he asked defendant if he was TRG. Defendant said he was.

The conversation lasted a couple of minutes. Asking defendant whether he was in a gang was essentially the entire conversation. Officer Pullen did not question defendant about any fresh crime or any violation of probation, parole, or release. He questioned defendant just for the gang intelligence.

At some point during the investigation, officers learned defendant had a felony warrant. Once they learned this, the officers “would have immediately” placed defendant in handcuffs. Officers eventually arrested defendant on the warrant.

Officer Pullen said he made his report on this contact for “purposes of doing a gang validation and further gang intelligence.” As a result, he could not tell from the report when the officers learned defendant had a warrant. He did not think that fact was important for this kind of case when he wrote the report.

The trial court concluded defendant’s statement to Officer Pullen of his TRG membership was admissible under Miranda. It was not clear defendant was placed under arrest before questioning began, and the questioning was not an interrogation about the subject matter of any arrest. In fact, Officer Pullen did not know what the arrest was for other than the warrant. The questioning was “just more routine gathering of gang intelligence.”

B. Analysis

Defendant contends his admission was admitted in violation of Miranda. He claims he was “detained, searched, and probably handcuffed” and not free to leave when Officer Pullen subjected him to custodial questioning without reading him his Miranda rights. He further argues the Miranda error was deliberate and requires reversal of his conviction.

When we review a trial court’s ruling on a claimed Miranda violation, “ ‘we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from [those facts] whether the challenged statement was illegally obtained.’ ” (People v. Gamache (2010) 48 Cal.4th 347, 385, quoting People v. Cunningham (2001) 25 Cal.4th 926, 992.)

“In Miranda, supra, 384 U.S. 436, the United States Supreme Court established procedural safeguards, including the familiar admonitions, as a prophylactic measure to protect a suspect’s right against self-incrimination. (Miranda, at p. 444.) Chief Justice Warren summarized the holding: ‘the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.’ (Ibid., italics added.) For Miranda purposes, custodial status arises if a person has been ‘taken into custody or otherwise deprived of his freedom of action in any significant way.’ (Ibid.)” (People v. Elizalde (2015) 61 Cal.4th 523, 530-531, fns. omitted.)

“It is settled that Miranda advisements are required only when a person is subjected to ‘custodial interrogation.’ (Miranda, supra, 384 U.S. at p. 444; see People v. Mickey (1991) 54 Cal.3d 612, 648.) The Miranda opinion itself permits ‘[g]eneral on-the-scene questioning as to facts surrounding a crime . . . .’ (Miranda, at p. 477.) A custodial interrogation does not occur where an officer detains a suspect for investigation and the questioning is limited to the purpose of identifying a suspect or ‘to obtain [sufficient] information confirming or dispelling the officer’s suspicions. [Citation.]’ (People v. Farnam (2002) 28 Cal.4th 107, 180; see Berkemer v. McCarty (1984) 468 U.S. 420, 439 [82 L.Ed.2d 317] [answers to investigatory questions by police officer who lawfully detains a person pursuant to a traffic stop are admissible even if the person was not given Miranda warnings].)” (People v. Davidson (2013) 221 Cal.App.4th 966, 970.)

“Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. (People v. Leonard (2007) 40 Cal.4th 1370, 1400; People v. Boyer (1989) 48 Cal.3d 247, 271 [disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1].) When there has been no formal arrest, the question is how a reasonable person in the defendant’s position would have understood his situation. (Boyer, at p. 272.)” (People v. Moore (2011) 51 Cal.4th 386, 395.)

“Whether a person is in custody is an objective test: the pertinent inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. (People v. Leonard, supra, 40 Cal.4th at p. 1400.) The totality of the circumstances is considered and includes ‘(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.’ (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) Additional factors are whether the officer informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement, whether the police were aggressive, confrontational, and/or accusatory, and whether the police used interrogation techniques to pressure the suspect. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)” (People v. Davidson, supra, 221 Cal.App.4th at pp. 971-972.)

From our review of the facts, we conclude defendant’s admission was not illegally obtained because he was not in custody for purposes of Miranda when he made the statement. Rather, he was briefly detained pending an investigation into why he and the other subjects attempted to flee from police. He was not under arrest until after the police learned of his warrant, and this apparently occurred after Officer Pullen asked him the question. He was detained, but only while the officers completed searching the home and running the subjects’ names.

The environment also indicates the questioning was not custodial. Officer Pullen asked the question after directing defendant and the subjects to sit down in the home’s living room. There is no evidence the police were confrontational. Officer Pullen described the conversation as casual and calm. He asked the question for gang intelligence purposes only because he noticed defendant was wearing mostly gray. Police did not question defendant about what he and the others were doing in the house or why they attempted to flee.

It is unclear whether defendant was handcuffed while he was questioned, but even if he was, handcuffing does not automatically constitute custody for purposes of Miranda. Questioning of a handcuffed suspect does not, as a matter of law, require giving Miranda warnings. (People v. Davidson, supra, 221 Cal.App.4th at p. 972; People v. Pilster (2006) 138 Cal.App.4th 1395, 1404.)

The totality of the circumstances shows defendant was being detained temporarily when Officer Pullen asked him about his gang membership and was not in custody for purposes of Miranda. As a result, the trial court did not err under Miranda in admitting defendant’s admission.

II

Gang Enhancements

Defendant contends insufficient evidence supports the gang enhancements. He asserts insufficient evidence supports three elements of the enhancement: (1) TRG had as one of its primary activities the commission of crimes enumerated in the statute; (2) TRG or its members engaged in a pattern of criminal activity; and (3) defendant committed his offenses for the benefit of TRG and with the specific intent to further criminal conduct by TRG members. He also contends the trial court admitted inadmissible testimonial hearsay to establish defendant was a gang member and the elements of the enhancement.

We conclude any error was harmless.

A. Background

Section 186.22, “also known as the California Street Terrorism Enforcement and Prevention Act (the STEP Act or Act), was enacted in 1988 to combat a dramatic increase in gang-related crimes and violence. The Act imposes various punishments on individuals who commit gang-related crimes—including a sentencing enhancement on those who commit felonies ‘for the benefit of, at the direction of, or in association with any criminal street gang.’ ([] § 186.22, subd. (b) (section 186.22(b)).)[[2]] A criminal street gang, in turn, is defined by the Act as any ‘ongoing organization, association, or group of three or more persons’ that shares a common name or common identifying symbol; that has as one of its ‘primary activities’ the commission of certain enumerated offenses; and ‘whose members individually or collectively’ have committed or attempted to commit [two or more] certain predicate offenses [referred to in the Act as ‘a pattern of criminal activity’]. (§ 186.22, subd. (f) (section 186.22(f)).)[[3]] To prove that a criminal street gang exists in accordance with these statutory provisions, the prosecution must demonstrate that the gang satisfies the separate elements of the STEP Act’s definition and that the defendant sought to benefit that particular gang when committing the underlying felony.” (People v. Prunty (2015) 62 Cal.4th 59, 66-67, fn. omitted.)

To satisfy these elements, the prosecution relied on the testimony of Deputy Hernandez, the arresting officer, and Detective Takahashi, the gang expert. As stated above, Deputy Hernandez saw the letters “TRG” tattooed across defendant’s abdomen and the letters “M” and “P” tattooed on his forearms. Detective Hernandez had previously contacted TRG members at the 7916 Loucreta Drive address and in the same neighborhood. He had noticed an increased TRG presence in the neighborhood during the preceding three or four months. The neighborhood had several gangs, and TRG’s increased presence had created additional problems.

Detective Takahashi has been a gang detective for six years and specializes in Asian gangs. Prior to becoming a gang detective, he spent one year working in the gang intelligence unit at the county jail. He explained that Southeast Asian immigrants established TRG in Long Beach to protect themselves against Hispanic and African American gangs operating there. TRG has since expanded nationwide and includes members of non-Asian descent.

TRG migrated to Sacramento in the early 90’s, establishing a foothold in the area around 45th Avenue between 37th Street and Franklin Boulevard. In the past 30 years, police have validated or recognized hundreds of TRG gang members in Sacramento. At present, there are approximately 100 or more active members in town.

TRG members use common signs and symbols to signify gang membership. Members will often tattoo themselves with the initials “TRG” or “Rascal.” They use an upside down Playboy bunny to signify the letter “R.” They use the numbers “7126” to represent the letters TRG, “7 being in the T; the 1-2 put together being the R, and the 6 being a G.” Members will often wear the color gray to indicate their membership.

TRG’s primary activities include unlawful firearms possession, assault with deadly weapons, burglary, drug possession, drug sales, and drug trafficking. Narcotics sales are the gang’s primary source of revenue. Detective Takahashi gathered information on TRG’s primary activities by reading various incident reports, information reports, and crime reports, participating in gang conferences and trainings, and consulting with other Asian gang experts, gang members, and victims of gang violence.

It is important for a TRG gang member to have access to firearms or to be that resource for others. Being a gang member is inherently dangerous. Invariably, the member will have a need to protect himself, retaliate with violence against any perceived disrespect, or commit violent acts against rival gang members if the opportunity presents itself.

To establish a pattern of criminal activity, Detective Takahashi reviewed police reports of two criminal incidents committed by TRG members. One involved Tommy Kirk Lee. On January 26, 2012, Lee fled from police during a vehicle stop. Police saw him discard a gun and narcotics. He was convicted of being a felon in possession of a firearm and possession of narcotics for sale. He admitted the crimes were committed for the benefit of, at the direction of, or in association with the TRG street gang.

Detective Takahashi testified about crimes by a second TRG member, Jabare Hollis. On November 25, 2013, police searched Hollis’s home and found a gun. Hollis admitted owning the gun. He had it for protection. He was convicted of unlawful possession of a firearm.

The trial court in the present case admitted certified copies of Lee’s and Hollis’s convictions into evidence.

In Detective Takahashi’s opinion, Lee and Hollis committed their crimes for the benefit of, at the direction of, or in association with the TRG gang. Selling drugs and possessing firearms is “the bread and butter of gang members.” They sell drugs to get money, and they possess guns to protect themselves and fellow gang members, instill fear in others, and bolster their and the gang’s reputations.

Relying on police reports, Detective Takahashi described seven instances where police encountered defendant while he was in the company of gang members. In March 2004, police contacted him with known TRG gang members. In February 2010, police contacted defendant with known TRG gang members, and on that occasion they noticed one of defendant’s gang-related tattoos. In August 2010, police pursued a fleeing vehicle until it crashed and the occupants fled. Defendant was a passenger in the vehicle, and its driver was a member of the El Camino Crips. TRG has an alliance with the El Camino Crips.

On December 14, 2012, police went to a residence to locate a particular TRG gang member, and they found defendant there with other TRG members. The police validated defendant as a TRG gang member at this incident because he was wearing gray clothing and had gang tattoos. One week later, on December 21, 2012, police contacted defendant at the same residence with other TRG gang members. As discussed above, police asked defendant if he was a TRG gang member, and defendant said he was.

On February 28, 2014, officers executed a search warrant at a residence on Pow Way. Inside, they found a marijuana grow and multiple firearms. TRG gang members, including defendant, were present in the home. On June 10, 2014, a police officer saw defendant riding a bike. The officer stopped defendant and spoke with him. In his report, the officer noted defendant’s gang tattoos, the TRG on his stomach, and that defendant was carrying a gray bandanna, informing he affiliates with TRG. Defendant told the officer he still lived at the Pow Way residence but he intended to move to Portland soon.

Based on his review of these police reports and consultations with other Asian gang experts, Detective Takahashi believed defendant was an active participant in the TRG gang on the date of the offense, July 31, 2014.

The area around 7916 Loucreta Drive historically had not been TRG territory. In the three or four months before defendant’s arrest, however, there was an increase in the number of TRG members contacted in the area, including at 7916 Loucreta Drive where defendant was arrested. Detective Takahashi believed it was reasonable to expect violence directed at TRG members for moving into another gang’s territory. If a shooting occurred at or near a residence which TRG members were occupying, Detective Takahashi would also expect the gang members to arm themselves whether or not they were the actual targets of the shooting.

Approximately two weeks before defendant’s arrest, a drive-by shooting hit the residence that adjoined 7916 Loucreta Drive (the two units were a duplex). The residents were African American females, and the police did not know the shooter’s identity or target. Nevertheless, Detective Takahashi would expect any gang members residing at 7916 Loucreta Drive to arm themselves in response to the shooting.

Detective Takahashi opined, based on a hypothetical situation mirroring the facts of this case, that a person in defendant’s situation would possess a short-barreled shotgun and ammunition in a vehicle parked in front of a residence where TRG gang members have been contacted in the manner defendant did for the benefit of or in association with the TRG gang, and that the person did so with the specific intent to promote, assist, or further the gang. The fact the gang member was outside historical TRG territory at a residence where a shooting had occurred two weeks earlier was a fairly significant factor in Detective Takahashi’s conclusion.

B. Analysis

Defendant asserts no substantial evidence supports three elements of the gang enhancement: (1) TRG had as one of its primary activities the commission of crimes enumerated in the statute; (2) TRG or its members engaged in a pattern of criminal activity; and (3) defendant committed his offenses for the benefit of TRG and with the intent to further criminal conduct by TRG members. Defendant also contends the trial court erred by admitting inadmissible testimonial hearsay to establish defendant was a gang member and the elements of the enhancement.

“In reviewing a challenge to the sufficiency of evidence, we must ‘ “ ‘review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” ’ (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) ‘[O]ur opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.’ (Hill, supra, 17 Cal.4th at p. 849.)

“ ‘ “The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” ’ (People v. Romero (2006) 140 Cal.App.4th 15, 18.) ‘ “Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” ’ (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Reversal for insufficient evidence is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient evidence to support a conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Massie (2006) 142 Cal.App.4th 365, 371.)” (People v. Ewing (2016) 244 Cal.App.4th 359, 371.)

We turn to defendant’s arguments.

1. Evidence of gang’s primary activities

Defendant contends the evidence does not establish the TRG gang committed one or more of the enumerated crimes as part of its primary activities. He asserts Detective Takahashi’s testimony was insufficient because it consisted only of a list of crimes and evidence of two convictions, not specific evidence that gang members consistently and repeatedly engaged in crimes. Defendant fails to recognize a gang’s primary activities can be established either by evidence that members consistently and repeatedly have committed criminal activity or through expert testimony. Here, it was established by expert testimony, and the testimony is substantial evidence in support of the finding.

The definition of a criminal street gang in subdivision (f) of section 186.22 “requires that the gang have ‘as one of its primary activities’ the commission of one or more of the criminal acts enumerated in subdivision (e). Evidence of both past offenses and the currently charged offenses may be considered in determining whether one of the primary activities of the gang is committing one or more of the offenses enumerated in the statute. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) ‘Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony . . . .’ (Id. at p. 324.)” (People v. Nguyen (2015) 61 Cal.4th 1015, 1068, italics omitted and added.)

Testifying as an expert, Detective Takahashi said TRG’s primary activities include unlawful firearms possession, assault with deadly weapons, burglary, drug possession, drug sales, and drug trafficking. All of these crimes are enumerated in the statute. (§ 186.22, subd. (e).) The evidence was sufficient. (See People v. Nguyen, supra, 61 Cal.4th at p. 1068 [expert testimony of gang’s primary activities that were enumerated in the statute was sufficient to establish primary activity element].)

2. Evidence of pattern of criminal activity

The definition of a criminal street gang requires that the gang’s “members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f).) “[A] ‘pattern’ is established by the commission of two or more enumerated offenses committed on separate occasions or by two or more persons.” (People v. Williams (2009) 170 Cal.App.4th 587, 609.) The prosecution sought to establish this element through Detective Takahashi’s testimony of gang members Lee’s and Hollis’s criminal convictions and the certified copies of those convictions.

Defendant contends the court committed prejudicial error in admitting the evidence because it was inadmissible testimonial hearsay under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). Under Sanchez, “[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. 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, original italics, fn. omitted.)

At trial, defendant did not object to the evidence on hearsay or confrontation clause grounds. Sanchez, which worked a significant change in the law, was not decided until after defendant filed his reply brief on appeal. Appellate courts “ ‘have excused a failure to object where to require defense counsel to raise an objection “would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule of evidence would be changed on appeal.” ’ [Citations.]” (People v. Williams (1976) 16 Cal.3d 663, 667, fn. 4, superseded by statute on another ground as noted by People v. Martinez (2003) 113 Cal.App.4th 400, 408.)

The Courts of Appeal do not agree on whether the law prior to Sanchez was so firmly settled or the Sanchez ruling so unforeseeable as to excuse a failure to object on hearsay and confrontation clause grounds. Division One of the First District Court of Appeal held failing to object was excusable. (See People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508.) A panel from this court and Division Two of the Fourth District Court of Appeal held failing to object forfeited the claim. (See People v. Blessett (2018) 22 Cal.App.5th 903, 925-926 (Blessett); People v. Perez (2018) 22 Cal.App.5th 201, 211-212.)

We need not enter this debate to resolve the issue before us. Assuming for purposes of argument only that defendant did not forfeit his claim, we conclude Detective Takahashi’s testimony of the two predicate crimes was not inadmissible hearsay and it was sufficient evidence to establish the TRG gang engaged in a pattern of criminal activity.

Sanchez held case-specific facts relayed by an expert to a jury as the basis of his or her opinion are hearsay. “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) In contrast, Sanchez did “not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his [or her] expertise.” (Id. at p. 685.) These are “matters that are within a gang expert’s general knowledge based on training, education, and experience and about which the expert may testify notwithstanding the fact that such matters are, technically, hearsay. (Sanchez, supra, 63 Cal.4th at pp. 676, 685.)” (Blessett, supra, 22 Cal.App.5th at p. 943.)

An expert’s testimony on predicate offenses arises from his or her general knowledge and, where a predicate offense was not committed by the defendant charged in the case on trial, does not consist of case-specific facts. A gang expert’s testimony about “general gang behavior or descriptions of the . . . gang’s conduct and its territory” is “background testimony.” (Sanchez, supra, 63 Cal.4th at p. 698.) “Sanchez’s reference to general background testimony ‘plainly includes the general background testimony [the gang expert gives] about [the gang’s] operations, primary activities, and pattern of criminal activities, which was unrelated to defendants or the current’ crimes. ([People v. Meraz (2016) 6 Cal.App.5th 1162,] 1175, review granted [March 22, 2017, S239442 (Meraz)], italics added; accord, People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411 (Vega-Robles).) Thus, a gang expert is properly ‘permitted to testify to non-case-specific general background information about [the gang], its rivalry with [another gang], its primary activities, and its pattern of criminal activity, even if it was based on hearsay sources.’ (Meraz, at p. 1175, italics added.)” (Blessett, supra, 22 Cal.App.5th at p. 944.)

Detective Takahashi’s evidence of Lee’s and Hollis’s convictions as the predicate acts did not concern defendant or the crimes for which he was convicted in this matter. The evidence thus was not case-specific, and the court did not err on hearsay or confrontation clause grounds by admitting the evidence.

The jury not only heard Detective Takahashi’s testimony, it also received Lee’s and Hollis’s certified convictions which were admitted into evidence under a hearsay exception set forth in Evidence Code section 452.5, subdivision (b). That statute “creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1460.) Certified conviction records are not testimonial for purposes of Crawford. (Meraz, supra, 6 Cal.App.5th at p. 1176, fn. 10; People v.Taulton (2005) 129 Cal.App.4th 1218, 1225.) The records of conviction and Detective Takahashi’s testimony thus were correctly admitted into evidence, and they sufficiently support the jury’s finding that TRG engaged in a pattern of criminal activity.[4]

3. Evidence crime was committed for gang’s benefit with requisite intent

“There are two prongs to the gang enhancement under section 186.22, subdivision (b)(1), both of which must be established by the evidence. ([People v. Albillar (2010) 51 Cal.4th 47,] 59 [(Albillar)].) The first prong requires proof that the underlying felony was ‘gang related,’ that is, the defendant committed the charged offense ‘for the benefit of, at the direction of, or in association with any criminal street gang.’ (§ 186.22, subd. (b)(1); Albillar, supra, 51 Cal.4th at p. 60, see People v. Gardeley (1996) 14 Cal.4th 605, 622 [disapproved on another ground in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13].) The second prong ‘requires that a defendant commit the gang-related felony “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” ’ (Albillar, at p. 64; see § 186.22, subd. (b)(1).)” (People v. Franklin (2016) 248 Cal.App.4th 938, 948 (Franklin).)

Defendant claims insufficient evidence supports the jury’s findings on both prongs of the enhancement. He argues the prosecution relied solely on Detective Takahashi’s testimony to establish these elements, and the detective’s testimony consisted of testimonial hearsay to prove defendant’s gang membership and mere speculation to establish defendant’s actions benefited the TRG gang and were done with the requisite intent. Defendant claims there was no evidence his actions were intended to bolster his and the gang’s reputation, promote the gang, or protect himself near the site of a recent shooting. The offenses were committed outside of TRG territory. There was no evidence anyone in TRG knew of defendant’s actions or participated in them. And, defendant asserts, there was no factual support for Detective Takahashi’s “casual dismissal” of the possibility that he acted on his own rather than to benefit a gang, a factor relied upon in Franklin for reversing the enhancement. (Franklin, supra, 248 Cal.App.4th at p. 950.)

We conclude sufficient evidence supports the jury’s findings on both prongs.

We agree with defendant that the trial court erred in admitting Detective Takahashi’s testimony to the extent it was based on testimonial hearsay, i.e., police reports of completed crimes and contacts prepared by other officers that were retained “to memorialize facts relating to past criminal activity, which could be used like trial testimony.” (Sanchez, supra, 63 Cal.4th at p. 689.) “[P]olice records of interrogations . . . clearly fit the definition of ‘testimonial statements,’ as they are produced to be used in a potential criminal trial or to determine whether criminal charges should issue.” (People v. Taulton, supra, 129 Cal.App.4th at p. 1225.)

However, because defendant did not object to these reports on the basis of hearsay and the confrontation clause, and because the actual reports were not submitted into evidence, we face an undeveloped record. The prosecution was never put to the burden of establishing that the reports did not relate testimonial hearsay. It is likely some of the reports were testimonial and memorialized criminal activity involving defendant, such as the reports describing the vehicle pursuit where defendant fled and the marijuana grow and seizure of multiple firearms in a home where defendant lived. However, the other reports appeared to describe contacts without the occurrence of criminal activity. Because the record is not clear, we cannot conclude all of the reports were testimonial. (See People v. Ochoa (2017) 7 Cal.App.5th 575, 584-586 [failure to object to reports relied on by gang expert resulted in undeveloped record and insufficient proof of confrontation clause violation].) However, even if we assume the reports were testimonial and defendant had objected at trial on this basis, we would conclude the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].)

Initially, it is important to understand that while Detective Takahashi used the police reports to establish defendant’s gang membership, and gang membership is relevant evidence, it is not required to establish the enhancement. “[G]ang membership is not an element of the gang enhancement under section 186.22, subdivision (b). There is no requirement that the defendant be an active or current member of the gang to establish the enhancement under section 186.22, subdivision (b)(1). ([Sanchez, supra, 63 Cal.4th at p.] 698; People v. Bragg (2008) 161 Cal.App.4th 1385, 1402, citing In re Ramon T. (1997) 57 Cal.App.4th 201, 207.) Section 186.22, subdivision (b)(1), applies to ‘any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with’ the gang and who acted with the requisite specific intent. (Italics added.) The required intent is ‘the specific intent to benefit, further, or promote the gang.’ (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138.) Gang membership is simply circumstantial evidence establishing that the crime was gang related and a motive for why a defendant may have harbored the ‘specific intent to promote, further, or assist in any criminal conduct by gang members.’ (§ 186.22, subd. (b)(1); see Sanchez, at pp. 698-699.)” (People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 539-540.)

Here, the admissible evidence establishes beyond a reasonable doubt that defendant committed his crimes for the gang’s benefit and he acted with the requisite intent. As to the first prong, committing the crime for the gang’s benefit, “ ‘the prosecution may, as in this case, present expert testimony on criminal street gangs.’ (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048 [].) ‘ “Expert opinion that particular criminal conduct benefited a gang” is not only permissible but can be sufficient to support [a] gang enhancement.’ (People v. Vang (2011) 52 Cal.4th 1038, 1048; see Albillar, supra, 51 Cal.4th at p. 63.)” (Franklin, supra, 248 Cal.App.4th at pp. 948-949.)

The testimony of Deputy Hernandez and Detective Takahashi established defendant possessed the shotgun and the ammunition for the benefit of the TRG gang. Deputy Hernandez arrested defendant with the shotgun and ammunition in front of a house associated with the TRG gang. The house was located in an area where TRG was expanding its presence, an expansion that had already caused problems in the neighborhood and would likely result in violence from other gangs. Indeed, the house’s adjoining unit had recently been targeted in a drive-by shooting. Defendant was shirtless and had “TRG” tattooed across his abdomen and “M” and “P” on his forearms. By possessing the shotgun and the ammunition in front of the Loucreta Drive residence, defendant was able to defend against any future threats and offer protection for TRG members at that residence. He also acted as a resource for gang members who may have needed access to a firearm or ammunition. The jury could have also inferred that because other individuals were present at the Loucreta Drive address at the time of his arrest, defendant’s actions bolstered his own reputation and that of the TRG gang. His possession offenses benefited TRG.

The testimony of both officers also gave the jury sufficient evidence to find the prosecution established the second prong, that defendant acted “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§186.22, subd. (b)(1).) Regarding the intent prong, “ ‘[i]ntent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.’ [Citation.]” (People v. Rios (2013) 222 Cal.App.4th 542, 567-568.) Expert testimony explaining defendant’s conduct may also be used to infer specific intent. (People v. Carr (2010) 190 Cal.App.4th 475, 489 [“jury may rely on evidence about a defendant’s personal conduct, as well as expert testimony about gang culture and habits” in order to infer defendant’s intent in committing the crime].) While “speculation, supposition and suspicion are patently insufficient to support an inference of fact[,]” (Franklin, supra, 248 Cal.App.4th. at p. 951), “we routinely draw inferences about intent from the predictable results of action.” (People v. Margarejo (2008) 162 Cal.App.4th 102, 110.)

Detective Takahashi testified TRG had expanded its territory in order to increase its revenue from drugs sales, and it had expanded into the Loucreta Drive neighborhood. That expansion had created problems in the neighborhood, and in that environment, the drive-by shooting on the adjoining unit would have resulted in TRG members arming themselves for protection. Based on the circumstances of the offense, the jury could reasonably infer defendant acted with the intent to assist gang members, some of whom had occupied the house in front of which defendant committed his crimes, in protecting the gang’s newly acquired turf and furthering its efforts to increase drug sales revenue.

Defendant’s reliance on Franklin to claim Detective Takahashi’s testimony was speculation is misplaced. In Franklin, the Court of Appeal determined insufficient factual evidence supported the gang expert’s opinion. The expert said the defendant committed the crimes for the gang’s benefit because he committed them in his gang’s territory and they would instill fear in the community and victims. But there was no evidence placing the crimes in the gang’s territory, and the defendant was acquitted of the violent crime the expert asserted would establish fear. (Franklin, supra, 248 Cal.App.4th at pp. 949-950.)

Here, the factual evidence supported Detective Takahashi’s opinions. The evidence showed defendant committed the crimes in an area where the TRG gang sought to expand its presence. In addition, defendant committed the crimes directly in front of a residence known to be occupied by TRG gang members and which had recently been the target of a drive-by shooting. In light of these circumstances, the expert’s opinion was not based merely on speculation.

Any error leading to the jury’s finding the gang enhancement allegations true was harmless beyond a reasonable doubt.

III

Prosecutorial Misconduct

Defendant argues the prosecutor committed misconduct in the rebuttal argument by shifting the burden of proof onto him to produce evidence and explain why prosecution witnesses should not be believed. Defendant raised no objection at trial to the argument nor showed that an objection would have been futile, and as a result he has forfeited this claim on appeal. (People v. Brown (2003) 31 Cal.4th 518, 553.)

Alternatively, defendant contends his trial counsel rendered ineffective assistance by not objecting to the prosecutor’s argument. We disagree, as defendant has not shown he was prejudiced by counsel’s not objecting. (See Strickland v. Washington (1984) 466 U.S. 668, 697 [court may decide ineffective assistance of counsel claim on lack of prejudice alone].) The prosecutor’s comment was a proper comment on the state of the evidence and an objection would have been overruled.

Deputy Hernandez testified on direct examination that defendant originally denied being inside the Camry, and only admitted to being inside the car after Deputy Hernandez said he saw him in the car. On cross-examination, Deputy Hernandez admitted he did not include defendant’s initial denial in his report. He also testified that police reports were to help him remember what happened, not to be a verbatim recitation of everything that occurred on a particular call. He said, “Not including information in a report is different than not writing things verbatim.”

During closing argument, defense counsel pointed out Deputy Hernandez’s omission in the police report. Counsel told the jury to consider with caution Detective Hernandez’s testimony of defendant’s statements and actions that were not written or recorded. Counsel also argued that Detective Takahashi’s testimony applied generically to any gang prosecution.

The prosecutor responded to counsel’s argument on rebuttal. To counter counsel’s implication that the police lied in their testimony, he asked the jury to consider why they would do so. He said, “The question I would ask. Why? Why would these officers come in here and make stuff up? Why would they do that? Why would they risk their jobs, their careers, their livelihood, their pension, their professional reputation, for a case --- a person in possession of a firearm with a gang enhancement? This isn’t a capital murder case. Why would they come in here and lie?

“You heard Deputy Hernandez. He was asked. If [defendant] is convicted or not convicted, does that change anything for you at all? No, it doesn’t. It doesn’t change his life, his career, one way or the other. They don’t get a bonus if he’s convicted. They don’t get punished if he walks. It doesn’t matter. They have no personal stake in the outcome. So why does this deputy, then, come here and embellish, make up all this stuff? That is simply not true.

“And we know why there are things not in his report. . . . [¶] It’s not a verbatim transcript of everything that occurred. It’s not like he’s making stuff up. There’s no reason to. If there was a reason, you would have heard about it.

“Now, I have the burden of proof. I must prove to you the crime and all the allegations beyond a reasonable doubt. The defense does not have a burden at all. Okay? But there is a concept called failure to call logical witnesses. And the gist of what that means is if the defense asserts something, if they something [sic] say something, they tell you actually the case is X, Y, and Z. You don’t have to accept that as true. You can be critical of that, just like you’re critical of the People’s argument. Okay?

“So if they tell you, you know, actually, it’s X, Y, and Z; but they – there’s no witnesses to support that, you don’t have to reach that conclusion. There is no facts supporting this claim, right?

“If these were dirty officers, bad officers, that are coming to get [defendant], you would have heard evidence about that when they were on the stand. Isn’t it true, Officer, you don’t like [defendant]? You’ve had run-ins with him before? Or you don’t like Asians? You’ve been disciplined before? You lied before? But there was no testimony like that at all because it doesn’t exist. If these were bad officers who were coming in here to get [defendant], you would have heard about it.” (Italics added.)

The prosecutor’s comment on the lack of evidence showing witness bias and misconduct did not impermissibly shift the burden of proof. “A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) The prosecutor’s comments on the lack of evidence did not shift the burden of proof where he clearly reiterated the prosecution had the burden of proof and defendant had no duty or burden to produce evidence. (Ibid.) Comments on the state of the evidence and the defendant’s failure to introduce material evidence or call logical witnesses are permissible, and an objection by counsel to the prosecutor’s argument would have been overruled. (People v. Carter (2005) 36 Cal.4th 1215, 1266.)

Because an objection would have been overruled, defendant cannot establish he was prejudiced by the failure to object, and his claim of ineffective assistance falls.

IV

Section 654

Defendant contends the trial court erred by failing to stay his concurrent sentence on the ammunition count under section 654. He argues possessing the firearm and possessing ammunition for the firearm constituted one indivisible course of conduct, and he could be punished only once for that conduct.

Section 654 states in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “ ‘ “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” ’ (People v. Rodriguez (2009) 47 Cal.4th 501, 507, italics omitted.)” (People v. Capistrano (2014) 59 Cal.4th 830, 885, disproved on other grounds in People v. Hardy (2018) 5 Cal.5th 56.)

“ ‘ “The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced.” ’ (People v. Coleman (1989) 48 Cal.3d 112, 162.)” (People v. Capistrano, supra, 59 Cal.4th at p. 886, fn. omitted.)

Substantial evidence supports the trial court’s decision not to stay the sentence on the ammunition count under section 654, as defendant’s offenses consisted of two distinct acts performed with separate intents. One act was possessing the firearm underneath the seat, the other was possessing the ammunition in a small pouch. Possessing a firearm in violation of section 29800 and possessing ammunition in violation of section 30305 do not necessarily share a common intent. Also, the gun and the ammunition were kept separately. That the ammunition could have been used in the gun does not establish possessing the items was an indivisible course of conduct with the same objective.

Defendant relies on People v. Jones (2012) 54 Cal.4th 350, and People v. Lopez (2004) 119 Cal.App.4th 132, to support his argument, but the cases are distinguishable. In both cases, the defendants were found possessing loaded firearms. Both defendants were convicted of multiple crimes based on the one act, and the appellate courts in both stayed sentencing on the additional crimes. (People v. Jones, at p. 360; People v. Lopez, at p. 139.)

The fact the guns were loaded distinguishes those cases from this one. The Lopez court explained the difference between the case before it and our case, and why separately possessing a firearm and ammunition may have separate objectives: “While possession of an unloaded firearm alone can aid a person committing another crime, possession of ammunition alone will not. The former may be used as a club and a victim may be fearful that the firearm is loaded. While the latter may be thrown at a victim, it is extremely unlikely that possession of bullets alone would scare anyone but the most timid. In combination, however, the mixture is lethal and that is why criminals have a penchant for loaded firearms. [¶] . . . [¶]

“In resolving section 654 issues, our California Supreme Court has recently stated that the appellate courts should not ‘parse[ ] the objectives too finely.’ (People v. Britt [(2004) 32 Cal.4th 944,] 953.) To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely. While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an ‘indivisible course of conduct’ is present and section 654 precludes multiple punishment.” (People v. Lopez, supra, 119 Cal.App.4th at p. 138.)

Where the gun and the ammunition are kept separate, as here, substantial evidence supports the trial court’s finding of separate intents and its decision not to stay the concurrent sentence on the ammunition possession conviction.

V

Sentencing

As already stated, the trial court imposed a concurrent middle term of two years on the ammunition possession count plus one-third the middle term on the offense’s gang enhancement. The enhancement sentence was unauthorized. The imposition of one-third the middle term for subordinate offenses and their conduct enhancements applies in cases of consecutive, but not concurrent, sentences. “Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1, subdivision (a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time.” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3.) When a court imposes concurrent sentences, “[e]ach count is sentenced with the full term of the base term, plus the full term of any conduct enhancements.” (Couzens et al., Sentencing California Crimes (The Rutter Group 2018) § 13.18, p. 13-64, original italics.)

This unauthorized sentence is subject to correction on review. (People v. Quintero, supra, 135 Cal.App.4th at p. 1156, fn. 3.) Accordingly, we vacate the unauthorized sentence imposed on the gang enhancement to the ammunition possession offense and correct it to reflect imposition of the full three-year middle term. We take this action now rather than remand for resentencing because the record reflects the trial court intended to run the sentence on the ammunition possession count concurrently, impose the middle term on that count, and not impose an aggregate term greater than nine years.

Disposition

The judgment is affirmed as modified to correct the enhancement imposed under section 186.22, subdivision (b)(1), to the conviction of unlawful possession of ammunition under section 30305, subdivision (a)(1), to the middle term of three years. The superior court is directed to amend the abstract of judgment to reflect the modified sentence and to forward the amended abstract to the corrections authority housing defendant.

HULL , J.

We concur:

BLEASE , Acting P. J.

MURRAY , J.