Filed 8/17/17 P. v. Linares CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed in part, reversed in part, and remanded for further proceedings.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

An information charged Anthony Osorio Linares with two counts of robbery (Pen. Code, §§ 211, 212.5, subd. (c); all further references are to this code unless otherwise indicated). It also alleged he committed the robbery for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); he personally and vicariously used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)); he was out of custody on bail at the time of the robbery (§ 12022.1, subd. (b)); and he had suffered a prior serious and violent “strike” juvenile adjudication (§§ 667, subd. (d), 1170.12, subd. (b)).

Linares admitted he was at the scene, but claimed he did not participate in the robbery. Still, a jury found him guilty on both counts, and it found true the gang and firearm enhancement allegations. He then admitted the other enhancement allegations, and the court sentenced him to 12 years, 8 months in prison.

On appeal, Linares contends the judgment must be reversed because the court admitted case-specific testimonial hearsay through the prosecution’s gang expert, in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), a case decided after this case was tried. The Attorney General concedes some of the testimony was inadmissible hearsay under Sanchez, but maintains any error was harmless beyond a reasonable doubt.

Because the Sanchez error was harmless as to the robbery convictions, but not the gang and gang firearm enhancements, we affirm the former and reverse the latter.

FACTS

A. The Robbery and the Investigation

Shortly before 3:00 a.m. on April 8, 2012, Christian Luna and Gabriel Espinoza were standing in front of Luna’s residence in Santa Ana, when they noticed a Nissan Altima drive in and circle the cul-de-sac. Minutes later, two men approached. One of the men stopped and stood some distance feet away, near Luna’s house. The other man walked up to Luna and Espinoza. He said he felt sick and asked to borrow Luna’s phone. When Luna handed it to him, the man pulled out a gun, pointed it at Espinoza’s head and demanded he empty his pockets.

Espinoza emptied his pockets and gave the gunman his cell phone. The gunman then pointed the gun at Luna’s temple and told him to take out everything he had. Luna gave up his wallet and the gunman took all the money out of it.

At that point, the gunman told Luna and Espinoza to look down, and the two men ran away. A few seconds later, Luna and Espinoza turned around and saw the two men get into the Altima they had seen earlier.

Once the Altima left the area, Luna called 911 from his house phone. Officer Chris Shynn responded to the call. The victims both gave Shynn descriptions of the Altima and the suspects, and Luna said the suspects looked like gang members because they wore baggy clothes.

Luna told Shynn the gunman was Hispanic, five feet, eight inches tall, 180 pounds, bald, with a goatee and wearing a black hoodie type sweatshirt.[1] Luna said the other man was also Hispanic, short, a little chunky, and wore a black shirt with yellow writing on it, black shorts and a black baseball hat. He also said there may have been a third person who remained in the Altima.

Espinoza described the gunman as light-skinned, medium build, five feet, seven or eight inches tall, shaved head or bald, with a goatee and wearing a hoodie type sweater. Espinoza said the other man was 20 to 25 years old, five feet, eight inches tall, 180 pounds, wore all black and a black baseball hat.

Shynn recalled that in February 2012 he had stopped Linares while Linares had been driving his Nissan Altima. George Diaz had been a passenger in the Altima. Shynn had discovered a single round of ammunition in the Altima. With these facts in mind, Shynn created photographic line-ups containing pictures of Linares and Diaz to present to Luna and Espinoza.

When Shynn showed Espinoza one of the lineups, Espinoza immediately looked at Linares’s picture, circled it, and stated, “Yeah, that’s him. That’s the guy with the gun.” When another officer showed one of the lineups to Luna, Luna immediately pointed to Linares’s picture and stated, “This is the guy that took our phones.”[2] Neither Espinoza nor Luna identified Diaz in the lineups.

Lidia Rendon, Linares’s ex-girlfriend and the mother of his child, told the police she had seen him hanging out with George Santana in the weeks before the robbery. So police prepared photographic lineups containing a picture of Santana and showed them to Luna and Espinoza. They both identified Santana as the suspect who had worn the black baseball hat.

On April 14, police arrested Linares and found a black baseball hat in his Altima. Officer Rene Bonilla interviewed Linares. Linares said he was the only person who ever drove his Altima. He initially claimed he did not know anything about the robbery, and he was home asleep when it occurred.

But after Bonilla told Linares he understood the consequences of being a “rat,” Linares requested a piece of paper and they began a written dialogue. Linares wrote he did not feel safe talking, and he was in a “sticky situation,” because a lot of people were “going down” and they thought it was because of him.

Linares wrote that on the night of the robbery he was in his Altima with two friends, and one of them was driving. He refused to give Bonilla their names, but acknowledged the driver was a Krazy Proud Criminals (KPC) gang member. He knew his friends had a gun and suspected they wanted to rob people. He said they committed the robbery, but insisted he remained in the back seat of the Altima the whole time. He asserted he was only with them because they had threatened him and his family, and they had later robbed him too.

B. The Gang Evidence

Rendon told police and testified at trial Linares was a KPC gang member, and he was friends with a man who was known by the gang moniker “Lefty.”[3] She said Linares had told her in 2009 or 2010 that he was a KPC gang member, and she was with him when he got a KPC tattoo on his hand.

Detective Sergio Gutierrez testified as the prosecution’s gang expert at trial. He had investigated numerous gang crimes and had arrested hundreds of gang members. Gutierrez testified generally about gang culture.

For example, Gutierrez testified only gang members get gang tattoos. Gang tattoos show a permanent allegiance to the gang, especially if they are on a part of the body that cannot be easily covered, such as the hands or face. A person will not ordinarily claim to be a member of a gang he is not affiliated with due to fear of retaliation from the gang’s members.

Also, gang members must “put in work” for the gang, which means to commit crimes themselves or to help other gang members commit crimes. Gang members commit crimes together because they trust each another. Gang members brag about their crimes to increase their status within a gang.

And in a traditional Hispanic street gang, respect is everything. The more violent a gang member is, the more respect he will get from other gang members. Violence also instills fear in the surrounding community, which prevents citizens from reporting the gang’s crimes.

Weapons are important to gangs because weapons help gang members commit crimes. A “gang gun” is a gun that everyone in the gang has equal access to for whatever reason, offensively or defensively.

Gutierrez had personally investigated crimes committed by KPC, and had reviewed police reports on other crimes committed by KPC. KPC was a traditional Hispanic street gang, with about 50 members, and their primary activities included illegal firearm possessions, narcotics sales, and assaults.

Gutierrez said “KPC X3” graffiti written in a notebook found in a search of Santana’s home showed KPC’s allegiance to the Mexican Mafia. He opined Santana was not a KPC member, but was “in some way associating” with KPC.

Gutierrez opined Linares was a KPC member in April 2012. He based his opinion on records of Linares’s police contacts, including police reports and field interview (FI) cards.[4] Gutierrez related the following case-specific statements contained in those records to the jury.

Gutierrez told the jury the police records (unspecified) documented that Linares had two monikers, “Clever,” related to his association with KPC; and “Bandit,” related to his earlier association with a tagging crew.

Gutierrez testified a 2008 police report/FI card stated Linares had been contacted with Kabido Chamu, and he opined Chamu was a KPC member.

He said a 2009 police report/FI card stated Linares had been contacted with Eric Tlaseca, also known as “Lefty,” and Lefty had told the police Linares “kicked it” with KPC and “had received the gun from another homie from KPC.”

A 2011 police report/FI card stated Linares had been contacted with a “tag-banging” crew member, and it noted Linares had a KPC tattoo on his hand. Gutierrez said that tattoo contains two KPC symbols, “15” and “LMS.”

Gutierrez told the jury the police report of Shynn’s February 2012 contact with Linares and Diaz stated the location of the car stop was in rival gang territory. He opined Diaz was a member of KPC too.

Gutierrez also reviewed the police reports concerning the robbery, and he found it significant those reports stated Rendon had told the police Linares was a KPC member, and that Linares had a contact in his cell phone for Lefty. Gutierrez testified Lefty was a known KPC member.

Finally, in response to a series of hypothetical questions mirroring the facts set out above, Gutierrez opined the robbery would benefit KPC, and that it would promote, further or assist criminal conduct by KPC members. He explained robbery brings tangible monetary benefits to the gang. Gun use provides intangible benefits to the gang. It enhances the member’s status within the gang because it demonstrates his willingness to be violent for the benefit of the gang. And it instills fear in the community and makes victims reluctant to testify in court.

C. The Defense

Linares did not testify or present any other witnesses at trial. In closing argument, defense counsel emphasized the prosecution’s burden of proof and challenged the victims’ identification of Linares as the gunman. He argued the lineups were unduly suggestive because only two of the six men in the pictures had a goatee, like the one described by Luna and Espinoza; and because the picture of Linares was placed in position No. 5, near the center.

Counsel also argued, based on the booking photograph of Linares taken about a week after the robbery, that Linares did not have a shaved head, like the gunman described by Luna and Espinoza. He pointed out an apparent discrepancy between the gunman’s clothing descriptions given by Luna during the investigation and during his trial testimony (long-sleeved black hoodie/short-sleeved green polo shirt). And he noted neither victim could identify Linares at trial.

Lastly, defense counsel argued the jury should not give much weight to Gutierrez’s testimony. He questioned the sufficiency of the factual basis for Gutierrez’s testimony concerning the concept of gang guns, and for Gutierrez’s opinion that the robbery was committed for the benefit of KPC.

DISCUSSION

1. Sanchez Changed California Law Governing Expert Witness Hearsay Testimony.

This case was tried more than a year before our Supreme Court decided Sanchez. At that time, California law permitted an expert witness to explain to the jury the “matter” upon which he relied, even if that matter would have ordinarily been inadmissible. (Sanchez, supra, 63 Cal.4th at p. 679.) And when that ordinarily inadmissible matter was case-specific hearsay, the expert was permitted to relate it to the jury, on the theory it was not being admitted for the truth of the matter asserted, but instead merely to explain the bases for the expert’s opinion. (Id. at pp. 673, 684.)

However, Sanchez concluded this paradigm was no longer tenable. (Sanchez, supra, 63 Cal.4th at p. 679.) The court explained: “If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner.” (Id. at p. 684, fn. omitted.)

Further, citing Crawford v. Washington (2004) 541 U.S. 36, 61-62 (Crawford), Sanchez noted admission of testimonial hearsay through an expert witness against a criminal defendant is also subject to the Sixth Amendment’s confrontation clause; which clause is violated, “unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. [Citations.]” (Sanchez, supra, 63 Cal.4th at p. 680.)

Consequently: “[A] court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial . . . .” (Sanchez, supra, 63 Cal.4th at p. 680.)

Sanchez determined police reports are testimonial hearsay because they relate “information gathered during an official investigation of a completed crime” and not “made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial.” (Sanchez, supra, 63 Cal.4th at p. 694.) Similarly, the portions of STEP notices retained by the police are testimonial hearsay because they are prepared primarily “to establish facts to be later used against [the defendant] or his companions at trial.” (Id. at p. 696.) FI cards are testimonial hearsay too, to the extent they are produced in an ongoing criminal investigation. (Id. at p. 697.)

2. Some of Gutierrez’s Case-Specific Hearsay Testimony Was Barred Under Sanchez.

Linares contends Gutierrez improperly testified about case-specific testimonial hearsay which was barred by Sanchez. Specifically, Linares challenges Gutierrez’s testimony relating the following out-of-court statements to the jury:

• The unspecified police record statements Linares had the KPC moniker Clever, and previously had the tagging crew moniker Bandit.

• The 2008 police report/FI card statement Linares had been contacted with Chamu.

• The 2009 police report/FI card statements Linares had been contacted with Lefty, and Lefty had said Linares kicked it with KPC and had received the gun from a KPC homie.

• The 2011 police report/FI card statement Linares had been contacted with a member of a tag-banging crew, and Linares had a KPC tattoo on his hand.

• The February 2012 police report statement Linares had been contacted with Diaz in rival gang territory during the car stop by Shynn.

• The current case police report statements Rendon had told the police Linares was a KPC member, and Linares had a contact in his cell phone for Lefty.

• The KPC X3 graffiti in the notebook seized during the search of Santana’s home.

The Attorney General concedes these out-of-court statements related to the jury by Gutierrez, except the statements attributed to Rendon and the KPC X3 graffiti, are case-specific testimonial hearsay which was inadmissible under Sanchez. We agree.

To determine the admissibility of the statements attributed to Rendon and the KPC X13 graffiti, we must engage in the two-step analysis laid out in Sanchez.

The statements attributed to Rendon were out-of-court statements offered for the truth. Hence, they are hearsay. But they were likely admissible as prior consistent or inconsistent statements. (Evid. Code, §§ 1235, 1236.) Alternatively, since these statements were repeated by Rendon in her trial testimony, Gutierrez was permitted to assume their truth in responding to hypothetical questions. For these reasons, the court did not violate state hearsay rules by allowing Gutierrez to testify about these statements.

The statements attributed to Rendon were also testimonial since they were in a police report. But again, Rendon testified and she was cross-examined about them. Hence, Gutierrez’s testimony about them did not violate the confrontation clause.

The KPC X3 graffiti was an out-of-court statement[5] offered for the truth of the meaning ascribed to it by Gutierrez. Thus, it is hearsay, and it does not fall under any exception. But it was first admitted without objection through the testimony of Bonilla. As a result, the court did not err by allowing Gutierrez to relate it to the jury.

In any event, the KPC X3 graffiti was not testimonial, so Gutierrez’s testimony about it did not violate the confrontation clause.

3. The Sanchez Error Necessitates Partial Reversal of the Judgment.

If the Sanchez error was a matter of state evidence law alone, we would apply the reasonable probability of a more favorable result standard of review under People v. Watson (1956) 46 Cal.2d 780, 800. But because the error also implicates Linares’s federal constitutional rights, we are required to apply the more stringent federal harmless beyond a reasonable doubt standard under Chapman v. California (1966) 386 U.S. 18, 24 (Chapman). (Sanchez, supra, 63 Cal.4th at p. 698.)

Under the Chapman standard, an error is harmless where the properly admitted evidence is overwhelming and the improperly admitted evidence is merely cumulative. (Harrington v. California (1969) 395 U.S. 250, 254.) “To find the error harmless we must find beyond a reasonable doubt that it did not contribute to the verdict, that it was unimportant in relation to everything else the jury considered on the issue in question. [Citation.]” (People v Song (2004) 124 Cal.App.4th 973, 984.)

Linares argues the Sanchez error basically gutted his whole defense, because “the prosecution’s entire theory of liability against him depended on showing that he was constantly over the years being detained or arrested with gang members, had received the gun used in the robbery from another gang member, and was, therefore, a likely active participant in the crime.” Plus, he contends inadmissible hearsay testimony prejudicially linked him to the Mexican Mafia. Thus, Linares concludes the whole judgment must be reversed.

The Attorney General argues: “Any inadmissible gang evidence had no effect on the jury’s verdict for the robbery charges and firearm enhancements since these were proven through overwhelming evidence, including credible eyewitness testimony identifying [Linares] as the armed suspect . . . . Additionally, any error in admitting [Gutierrez’s] testimonial hearsay did not contribute to the jury’s findings on the gang enhancements because ample independent evidence proved [he] was a member of KPC and thus acted with the intent to benefit the gang.”

We begin our analysis by rejecting two of Linares’s core claims. First, Linares claims the hearsay attributed to Lefty showed, “Linares had in fact obtained the gun used in the crime from another KPC member.” But the record does not support this claim. Gutierrez testified Lefty told police in 2009, “Linares had received the gun from another homie from KPC.” (Italics added.) Gutierrez did not testify the gun Linares received in 2009 was the gun he used in the robbery in 2012.

Second, Linares claims he was prejudiced by Gutierrez’s Mexican Mafia testimony. But this testimony was properly admitted. Gutierrez explained: “X3 would mean 13 . . . . Traditional Hispanic street gangs will commonly use a 13 behind tagging which shows their allegiance to the Mexican Mafia. The 13th letter of the alphabet is ‘M,’ which stands for the Mexican Mafia.”

Once more the KPC X3 graffiti itself was properly admitted, and there was no Sanchez error when Gutierrez related it to the jury. Too, there was nothing improper about Gutierrez explaining its significance to the jury. Sanchez “does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise.” (Sanchez, supra, 63 Cal.4th at p. 685.)

A. The Robbery Convictions Must Be Affirmed.

The only robbery issue disputed was the identity of the gunman. But the People’s admissible identification evidence was overwhelming. Luna and Espinoza both easily identified Linares as the gunman soon after the robbery. That they could not or would not identify him at trial three years later is unsurprising. Memories fade and appearances change. Violent crime victims may become reluctant trial witnesses.

Also, while there were some minor discrepancies, the basic descriptions of the gunman which Luna and Espinoza gave the police generally matched Linares. And in separate photographic lineups, Luna and Espinoza both positively identified Santana as the suspect who stood nearby and wore the black hat, not the gunman. Plus, Rendon testified Santana and Linares had hung out together before the robbery.

In contrast, the identification defense based on what Linares told Bonilla was weak. At first Linares said he was home asleep and knew nothing about the robbery. Later, he claimed he had unwillingly permitted his car to be used in the robbery, and had basically been held hostage in the back seat. Because his first story was a deliberate lie, the jury could, and obviously did, reasonably conclude his second story was a lie too.

Finally, the content of the improperly admitted gang hearsay evidence had no direct bearing on the question of whether Linares was the gunman.

Under these circumstances, we find the Sanchez error was unimportant in relation to everything else the jury considered on the identity question, and thus it did not contribute to the robbery convictions. Therefore, we conclude the Sanchez error was harmless beyond a reasonable doubt as to the robbery convictions.

B. The Gang and Gang Firearm Enhancements Must Be Reversed.

The Attorney General contends the Sanchez error only relates to the gang enhancements, not the gang firearm enhancements (§ 12022.53, subd. (b)).[6] But these enhancements are inextricably intertwined, and the error relates to both, since the gang firearm enhancement only applies if the person who committed the robbery also “violated subdivision (b) of Section 186.22.” (§ 12022.53, subd. (e)(1)(a).)

Accordingly, for both the gang and gang firearm enhancements in this case, “Determining prejudice requires an examination of the elements of the gang enhancement and the gang expert’s specific testimony.” (Sanchez, supra, 63 Cal.4th at p. 698.) “The gang enhancement applies to one who commits a felony ‘for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.’” (Ibid., quoting § 186.22, subd. (b)(1).)) In addition, the prosecution must prove the alleged gang is in fact a criminal street gang, as that term is defined in the statute. (Ibid.)

Linares raises no Sanchez error claim against Gutierrez’s background testimony about gang culture, which again included gang behavior, the significance of gang tattoos, and the importance of weapons, violence and respect. Likewise, Linares does not challenge Gutierrez’s general testimony about KPC and its primary activities, or his opinion KPC is a criminal street gang. This testimony was based on well-recognized sources in his area of expertise. It was relevant and admissible.

Linares does raise Sanchez error claims against Gutierrez’s opinions that Linares was a KPC member, and that the robbery was committed for the benefit of KPC. These opinions were disputed. Defense counsel argued to the jury, “this is the kind of testimony that you are asked to swallow hook, line, and sinker; but if you question it, [Gutierrez] doesn’t have any facts, hard facts, to base those opinions on.” Meanwhile, “[t]he defense theory of the case was that [Linares] was not a member of KPC, or at least not an active member . . . .”

Gutierrez’s inadmissible testimony about Linares’s gang moniker and his police contacts in 2008, 2009, 2011 and February 2012, was relied on to prove Linares’s KPC membership and his intent to benefit KPC in committing the robbery. While gang membership is not an element of the gang enhancement (People v Valdez (2012) 55 Cal.4th 82, 132), inadmissible evidence of Linares’s membership bolstered the prosecution’s theory the robbery was committed for the benefit of KPC.

The Attorney General argues the Sanchez error was harmless beyond a reasonable doubt, because “overwhelming evidence showed [Linares] was a member of KPC and thus committed the robber[y] to benefit the gang, demonstrating that the inadmissible evidence had no impact on the jury’s verdict.” We are not persuaded.

There is untainted evidence Linares was a KPC member in 2012. The admissible statements and trial testimony of Rendon that Linares was a KPC member, had told her he was, had a KPC tattoo, was friends with Lefty, and associated with Santana, all point in that direction. So too the KPC X3 graffiti.

But we cannot say the properly admitted evidence is overwhelming and the improperly admitted evidence is merely cumulative. Nor can we find it did not contribute to the verdict, or that it was unimportant in relation to everything else the jury considered on the gang issues. And we cannot decide the true findings were “surely unattributable” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279) to the error.

For these reasons, we conclude the admission of the inadmissible case-specific testimonial hearsay statements was not harmless beyond a reasonable doubt. We therefore reverse the true findings on the gang and gang firearm enhancements.[7]

DISPOSITION

The true findings on the gang and gang firearm enhancements are reversed. The judgment of conviction (including the other enhancements) is otherwise affirmed, and the matter remanded for further proceedings not inconsistent with this opinion.

THOMPSON, J.

WE CONCUR:

MOORE, ACTING P. J.

FYBEL, J.