Filed 12/14/17 P. v. Lazaro 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JUAN LAZARO,

Defendant and Appellant.
H042498
(Santa Clara County
Super. Ct. No. C1479246)
A jury found defendant Juan Lazaro guilty of making criminal threats and active participation in a criminal street gang. (Pen. Code, §§ 186.22, subd. (a), 422.) The jury also found true the allegation that Lazaro made the criminal threats for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(B).) The trial court imposed an aggregate term of three years.
Lazaro raises five claims on appeal. First, he contends the prosecution failed to present sufficient evidence to prove the existence of a criminal street gang under People v. Prunty (2015) 62 Cal.4th 59 (Prunty). We find this claim without merit.
Second, Lazaro contends the trial court erroneously admitted testimonial hearsay statements by the prosecution’s gang expert in violation of the Sixth Amendment under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We conclude the trial court so erred, but we find the error harmless.
Third, Lazaro contends his trial counsel rendered ineffective assistance by failing to lodge a timely objection to testimony about a statement Lazaro made to the effect that he possessed a shotgun. We conclude this claim is without merit.
Fourth, Lazaro contends the trial court erred by admitting hearsay statements by a group of juveniles who told the victim that Lazaro’s codefendant was looking for the victim. We conclude the admission of this testimony did not constitute an abuse of discretion.
Finally, Lazaro contends the minute order of the sentencing hearing and the abstract of judgment incorrectly recorded the trial court’s oral imposition of the sentence. The Attorney General concedes the merit of this claim. We accept the concession, and we will order the trial court to correct the record. We will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Offense
The victim, Eliaz Orozco, was a private security guard working in the Santee neighborhood of south San Jose in March 2014. Andrew Cutler was Orozco’s partner at the time. The charges against Lazaro arose from a confrontation between the two guards and Lazaro’s codefendant, Alonso Ruiz, while Lazaro was present. The prosecution also charged Ruiz for two other incidents in which Lazaro was not involved. The prosecution alleged Lazaro and Ruiz were members of the Sureño criminal street gang.
1. The March 13 Incident
On March 13, Orozco and Cutler were patrolling an apartment complex in the Santee area when they stopped to talk to some tenants about a parking issue. As Orozco was dealing with the tenants, he saw Ruiz and Lazaro standing across the street with two other men. The four men were about 30 to 50 feet across the street from Orozco.
This was not the first time Orozco had encountered Lazaro. On a prior occasion, Orozco had asked Lazaro if he lived at the property, and Lazaro replied that he did not. Orozco then asked Lazaro multiple times to leave the property, whereupon Lazaro became aggressive and challenged Orozco to a fight. Lazaro, who was alone at the time, eventually left the property.
As Orozco and Cutler were speaking with the tenants on March 13, Ruiz, Lazaro, and the two other men started yelling obscenities and threats at the two guards from across the street. The men yelled “rent-a-cop” and “little bitch,” among other things. Orozco specifically heard Ruiz challenging him to fight. Ruiz said, “Come on, let’s go.” He was also saying “sur trece” and putting up his hand with his three middle fingers raised. Lazaro was also yelling “sur trece” and signaling with his hand. The other two men were yelling as well, but Orozco could not tell what they were saying. Orozco told Cutler to call the police, and Cutler did so.
At some point during the confrontation, Ruiz started walking across the street towards Orozco. Ruiz called Orozco a “bitch” and said, “I’m going kill you. Come on, let’s fucking do this.” As Ruiz was walking, he took his shirt off, put his bag down, and continued to challenge Orozco to fight. Lazaro and the other two men stayed on the other side of the street while making noise and “doing things with their hands.”
There was a small, three-foot fence between Orozco and Ruiz. Ruiz stopped at the fence about 20 to 25 feet from Orozco. Ruiz put his shirt back on, picked up his bag, walked back across the street, and left with the other three men. Ruiz continued to yell things at Orozco as he was leaving. After the four men left, the police arrived, and Orozco and Cutler reported the incident to the police.
Orozco was scared by Ruiz’s threats because Ruiz had threatened him before. Ruiz would tell Orozco, “I know where you park your bike,” and “I’m going to get you guys.” Orozco had seen Ruiz watching him as Orozco left work on his bike.

2. The March 19 Arrest
On March 19, the police went to the Santee area to follow up on the report of the March 13 incident. Sergeant McKim, who testified for the prosecution as an expert in criminal street gangs, saw Lazaro “posting up” near the Santee Elementary School. “Posting up” means that a gang member is standing guard or acting as a sentry to represent the gang and mark its territory. After Lazaro was detained, the police searched his cell phone and found photos of him and others throwing gang signs; an Aztec symbol with the number “13”; a man with his forearms in the shape of a “T”; a blue bandana that said “Tami Lee Gangsters” with “VTG” and “13” on it; and a news article about a gang shooting in San Jose. The cell phone also contained a video of Lazaro talking about the Varrio Tami Lee Gangsters.
3. Other Incidents Involving Ruiz
On January 27, Orozco and another guard saw eight to ten suspected gang members loitering on the Santee property. Ruiz was with the group. Some of them were drinking alcohol or smoking. Orozco’s partner told the group to leave. One of the men pulled out a two-foot metal pipe and challenged the guards to a fight. Orozco heard Ruiz warn the other guard to “watch out” because “you know what happened to the last guards. We know where you park your cars. We’re going to get you.” Ruiz threatened the guards’ families and said, “We already know where you live. We follow you home.” The guards called 911 and left. The group of men left the area when they heard a police helicopter approaching.
On March 20, Orozco and Cutler spotted Ruiz in a black Jeep. Orozco followed the Jeep while Cutler called the police. When the Jeep stopped at a stop sign, Ruiz got out with something in his hand and approached Orozco’s car. Ruiz said, “Come on, [b]itch,” and “sur trece.” He started putting his fingers up in the shape of “1” and “3.” Ruiz threatened to kill Orozco and threw a can of soda at him, missing. As Ruiz got closer, he started throwing punches at Orozco, but in his testimony, Orozco could not remember if any of the punches hit him. Ruiz then turned and ran. Orozco gave chase, and the two men began wrestling until Orozco ended up on top of Ruiz. Ruiz bit Orozco on the arm. The police then arrived and took Ruiz into custody.
4. Gang Expert Testimony
Clayton Le, a criminal investigator for the district attorney’s office, testified for the prosecution as an expert on gang crimes in Santa Clara County. Le opined that Lazaro and Ruiz were members of the Sureño gang. Le testified that the Sureños were a criminal street gang based on the statutory requirements set forth in section 186.22. He estimated that there were more than 50 Sureño gang members in San Jose. The gang engages in a pattern of criminal activity including shooting into occupied dwellings, illegal possession of firearms, and vehicle thefts. The gang’s primary activities consist of murder, assault with a deadly weapon, robberies, car thefts, and criminal threats. Its members associate with the color blue, the number “13,” and the letter “M,” which is the 13th letter in the alphabet and is associated with the Mexican Mafia. Sureños wear blue clothing, such as blue bandanas, belts, or sport jerseys for teams that bear blue colors, such as the Dodgers and Cowboys. Norteño gang members are the primary enemies of Sureños.
Le described several subsets of Sureño gangs that protect various territories and neighborhoods in the San Jose area. These include the Varrio Tami Lee Gangsters (VTG); Varrio Colonias Trece (VCT); Varrio Loco Trece; Varrio Sur Town (VST); Sur Santos Pride; and Kollmar Vagos Trece. When the prosecutor asked Le whether these subsets “work together,” Le did not answer and asked the prosecutor to clarify the question. The prosecutor then posed the following hypothetical question: “[L]et’s say you’re a Sureno from, just hypothetically, VTG, and you end up in the area where it’s VCT-controlled, do those two subsets hang out? Do they do work together, that kind of stuff?” Le responded, “I have seen them hang out. I have contacted them together, both VCT and VTG. Yes, it happens over on the West Side with VST, Varrio Sur town, I’ve contacted Sunnyvale Surenos hanging out with them.” Le opined that Sureños were more likely to hang out together than Norteños because the latter outnumbered Sureños in the San Jose area.
Le testified to several facts linking Lazaro to the VTG subset of the Sureño gang. Lazaro had tattoos of one dot on his right hand and three dots on his left hand, signifying the number “13.” Police found several photos on Lazaro’s phone, including photos of him displaying a gang sign indicating “13” with his fingers; wearing a blue bandana with the words “Tami Lee Gangsters,” VTG, and the number “13”; and standing in front of a street sign at the corner of Tami Lee Drive and Santee Drive. A video on Lazaro’s phone showed him talking about VTG, “Tami Lee Gangsta,” “1 – 3,” and “banging.”
The prosecution presented evidence of three other offenses committed by Sureños or members of Sureño gang subsets. People’s Exhibit 6 contained a certified minute order reflecting a no contest plea by Luis Martinez in 2012 for assault with a deadly weapon with an admission to a gang enhancement under Section 186.22, subdivision (b). Le testified that Martinez was a member of the Sureño gang. People’s Exhibit 7 contained a certified minute order reflecting the conviction of Sergio Rueda in 2011 for making criminal threats with a gang enhancement. Le testified that Rueda was a member of the Kollmar Vagos Trece subset of the Sureño gang. People’s Exhibit 8 contained a certified minute order for the conviction of Edgar Loya in 2012 for assault with a deadly weapon with a gang enhancement. Le testified that Loya was a member of the Sureño gang.
In a response to a hypothetical question based on facts similar to those of the March 13 offense, Le opined that the offense would have been committed for the benefit of and in association with a criminal street gang. Le testified that the incident would have underscored the reputation of the gang and their stranglehold on the area, thereby furthering and benefitting the gang. Le also opined that hypothetical incidents similar to the other incidents involving Ruiz were committed for the benefit of and in association with a criminal street gang.
5. Prior Law Enforcement Contacts
Le testified about numerous prior law enforcement contacts with Lazaro as follows. On August 7, 2008, police contacted Lazaro during a service call in the Santee area, known to be Sureño territory. An officer asked Lazaro whether he was a Sureño, and Lazaro responded that he had been a Sureño for a “long time.” On September 4, 2008, police contacted Lazaro in possession of a sharpened screwdriver at the Stonegate Park Community School. He admitted he was a Sureño gang member. On June 11, 2009, police contacted Lazaro at the San Jose State University student union, again with a sharpened screwdriver in his possession. Lazaro admitted he was a Sureño, and he said he would use the screwdriver as a weapon if necessary. On September 5, 2009, Lazaro was involved in an incident at Juvenile Hall in which he struck another minor identified as a Norteño by staff members. On January 18, 2010, Lazaro was again involved in a “gang riot” at Juvenile Hall in which staff members identified him a Sureño. On April 24, 2010, police contacted Lazaro in a service call to a Sureño gang area, whereupon Lazaro admitted he was involved in a gang fight together with another Sureño whose friend was being assaulted by Norteños. On June 9, 2012, police contacted Lazaro in a known gang area and observed tattoos consisting of three dots on his left hand and one dot on his right hand. On January 24, 2013, police contacted Lazaro and observed the same tattoos on his hands. On February 15, 2013, police contacted Lazaro in a gang area and observed him with a tattoo of the number “13” and gang clothing including a blue bandana. On February 23, 2013, police observed Lazaro in a Sureño neighborhood wearing blue clothing and associating with Peter Do, an admitted Sureño gang member, and one of the participants in the March 13 threats against Orozco. On March 19, 2013, police contacted Lazaro together with Fernando Valencia, another documented Sureño. On March 27, 2013, police saw Lazaro spray painting “VTG” on a wall in a known Norteño area. On July 29, 2013, police contacted Lazaro in a gang area associating with Jose Sanchez, a documented Sureño. Police again observed gang tattoos on Lazaro. On August 8, 2013, police contacted Lazaro with the tattoo of three dots on his hand and he was wearing a blue T-shirt. Finally, Le opined that the facts of the instant offense also demonstrated Lazaro’s gang membership.
B. Procedural Background
The prosecution charged Lazaro and Ruiz jointly. Count 1 charged Ruiz with making criminal threats (§ 422) against Orozco in the January 27 incident. Count 2 charged both Lazaro and Ruiz with criminal threats against Orozco for the March 13 incident. Count 3 charged Ruiz with criminal threats against Cutler for the March 13 incident. Count 4 charged Ruiz with criminal threats for the March 20 incident. Count 5 charged both Lazaro and Ruiz with active participation in a criminal street gang. (§ 186.22, subd. (a).) As to Counts 1 through 4, the prosecution alleged the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subd. (b)(1)(B).) The prosecution further alleged Ruiz had suffered a prior felony conviction constituting a serious felony (§ 667, subd. (a)) and a violent or serious felony (§§ 667, subds. (b)-(i), 667.5, subd. (c).)
Lazaro and Ruiz were tried jointly. The jury found Ruiz not guilty on Counts 1 and 4. The jury found the defendants guilty on all remaining charges and found the gang enhancements true. Ruiz admitted the prior conviction.
As to Lazaro, the trial court imposed a total term of three years, consisting of the aggravated term for Count 2. The court struck the punishment for the gang enhancement. On Count 5, the court imposed a three-year term but stayed it under section 654.
II. DISCUSSION
A. Sufficiency of the Evidence Under Prunty
Lazaro, relying on Prunty, supra, contends the prosecution failed to present sufficient evidence of an associational or organizational nexus between the relevant gang subsets and the umbrella Sureño gang. The Attorney General contends the prosecution presented evidence that the gang subsets involved were “part of a loose approximation of a hierarchy” with “shared bylaws or organizational arrangements” and were “controlled by the same locus or hub” as required by Prunty. We conclude the prosecution presented sufficient evidence.
1. Legal Principles
Section 186.22 defines a “criminal street gang” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission” of one or more certain enumerated offenses, “having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) Subdivisions (e) and (j) of that section further define “a pattern of gang activity” by the commission of certain predicate offenses by two or more persons on separate occasions within certain time periods.
Section 186.22 “requires the prosecution to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang.” (Prunty, supra, 62 Cal.4th at p. 67.) As to the enhancement, “when the prosecution seeks to prove the street gang enhancement by showing a defendant committed a felony to benefit a given gang, but establishes the commission of the required predicate offenses with evidence of crimes committed by members of the gang’s alleged subsets, it must prove a connection between the gang and the subsets.” (Id. at pp. 67-68.) This requires evidence “that the gang the defendant sought to benefit, the individuals that the prosecution claims constitute an ‘organization, association, or group,’ and the group whose actions the prosecution alleges satisfy the ‘primary activities’ and predicate offense requirements of section 186.22(f), must be one and the same.” (Id. at pp. 75-76.)
The requirement of an “organization, association, or group [] calls for evidence that an organizational or associational connection unites the ‘group’ members. When . . . the prosecution relies on the conduct of subsets to show a criminal street gang’s existence, the prosecution must show a connection among those subsets, and also that the gang those subsets comprise is the same gang the defendant sought to benefit.” (Prunty, supra, 62 Cal.4th at p. 85.) “That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization.” (Id. at p. 71.) “[I]t is not enough . . . that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets’ conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group.” (Id. at p. 72.)
“In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question . . . is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) The California Constitution requires the same standard. (Ibid.) “In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.) This standard applies even when the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.)
2. The Prosecution Presented Sufficient Evidence of a Unitary Gang
The prosecution’s theory of the case was that the Sureño gang was the criminal street gang for purposes of section 186.22. Accordingly, that is the gang for whom the prosecution was required to prove the various elements of the statute. Evidence was presented that defendant was a Sureño gang member and a member of the VTG subset of that gang. To prove the pattern of criminal gang activity required to show the existence of the Sureños as a criminal street gang, the prosecution presented evidence of three predicate offenses committed by other gang members: Sergio Rueda, identified as a member of the Kollmar Vagos Trece subset of the Sureño gang; and Luis Martinez and Edgar Loya, both identified generically as members of the Sureño gang. The expert did not identify Martinez or Loya as members of any particular subset. Lazaro contends this evidence is insufficient. He contends the state of the evidence here is indistinguishable from that in Prunty, supra, wherein the California Supreme Court found the evidence insufficient to support the conviction.
The Supreme Court in Prunty declined to rule out the possibility that an umbrella organization such as the Sureños or Norteños could qualify as a criminal street gang under the statute: “[N]othing in this opinion reflects any skepticism regarding the general factual question of whether the Norteños exist . . . . We have previously upheld gang enhancements where the ‘criminal street gang’ in question was a geographically dispersed group. [Citation.] While we find the evidence here insufficient, nothing in our opinion reflects doubt that prosecutors can prove the existence of such a criminal street gang when the evidence supports such a conclusion.” (Prunty, supra, 62 Cal.4th at p. 85.) Where the prosecution presents evidence that the defendant is a member of a subset distinct from the subsets of the gang members offered to prove the predicate offenses, Prunty requires proof of an associational or organizational nexus between those subsets. (Id. at pp. 67-68; cf. People v. Ewing (2016) 244 Cal.App.4th 359, 372 [Prunty does not apply where the prosecution does not proffer the predicate crimes of subset gang members to prove the existence of a criminal street gang].)
Prunty has no application in the context of Martinez and Loya and their predicate offenses. The evidence showed they were Sureños, not members of any subset, so no additional evidence was required. As to Rueda, Prunty can be read as requiring the prosecution to prove a connection between Sureños and the Kollmar Vagos Trece subset, as Rueda belonged to that subset. But there also was evidence that Rueda was a member of the larger Sureño street gang that defendant sought to benefit. The gang expert opined that Rueda was a Sureño based on his gang tattoo with three dots and the fact that Rueda had admitted being a Sureño gang member to police on four separate occasions.
In Prunty, the Supreme Court noted that the gang expert’s testimony did not “demonstrate that the subsets that committed the predicate offenses, or any of their members, self-identified as members of the larger Norteño association that the defendant sought to benefit. Although there was ample evidence that Prunty self-identified as both a member of the Detroit Boulevard Norteños and the larger umbrella Norteño gang, and that he collaborated with a member of another subset to commit his present offenses, the prosecution presented no evidence that the members of the Varrio Gardenland and Varrio Centro Norteños self-identified as part of the umbrella Norteño gang . . . . The jury was consequently left with no way to connect the subsets that committed the predicate offenses to the larger Norteño group the prosecution claimed Prunty acted to benefit.”
(Prunty, supra, 62 Cal.4th at pp. 82-83.) The clear implication is that evidence that a subset member self-identifies with the larger street gang is sufficient to allow the jury to connect that subset to the larger gang.
Here, there was evidence that defendant and the perpetrators of all three predicate offenses were members of the larger Sureño organization. Given that evidence, Prunty does not require any additional subset-specific showing. We conclude the prosecution presented sufficient evidence of a unitary gang as required under section 186.22.
B. Gang Expert Hearsay Testimony
Lazaro contends the admission of hearsay testimony by the prosecution’s gang expert violated the Confrontation Clause of the Sixth Amendment. The Attorney General contends the expert did not convey any testimonial hearsay statements in his testimony, and that Lazaro has failed to demonstrate prejudice even assuming any such testimony was erroneously admitted.
1. Procedural Background
Lazaro moved in limine to exclude testimonial hearsay statements by the prosecution’s gang expert. The motion referred generally to pleas by out-of-court defendants; statements contained in police reports; interrogations of other suspected gang members; statements by other suspected gang members as memorialized in police reports and field identification cards; statements by police officers in police reports; and statements concerning Lazaro’s prior police contacts. The motion also requested a limiting instruction in the event the trial court found such statements admissible. At oral argument on the matter, the trial court denied the motion on the condition that the jury be given a limiting instruction.
After the close of evidence, the court instructed the jury as follows: “You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert witness may have been asked a hypothetical question. A hypothetical question asks a witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert’s opinion. [¶] In his opinion, a gang expert may testify that he has considered information received from other officers, other experts, police reports, statements made by gang members, and other sources documenting out-of-court statements. In formulating his opinion, an expert is entitled to rely upon reliable out-of-court statements. These documents or statements are only to be considered by you in evaluating the basis of the expert’s opinion and are not to be considered for the truth of the matter asserted. This hearsay evidence relied upon by gang—the gang expert may also not be considered by you regarding whether the defendants had any of the required mental state or intent with respect to the alleged conduct.”
2. Legal Principles
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.) The Confrontation Clause thereby bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Crawford v. Washington (2004) 541 U.S. 36, 37 (Crawford).) This bar applies only to testimonial statements; admission of nontestimonial statements, while subject to state law hearsay rules, does not violate the Confrontation Clause. (Id. at p. 53.)
The California Supreme Court has held that Crawford, supra, bars the introduction of case-specific testimonial hearsay by a gang expert. “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) This bar cannot be avoided by instructing the jury not to consider the testimony for its truth. “Once we recognize that the jury must consider expert basis testimony for its truth in order to evaluate the expert’s opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth.” (Id. at p. 684.)
“[A] court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term.” (Sanchez, supra, 63 Cal.4th at p. 680.)
We review de novo whether a statement is testimonial and therefore implicates the Confrontation Clause. (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.) “We evaluate the primary purpose for which the statement was given and taken under an objective standard, ‘considering all the circumstances that might reasonably bear on the intent of the participants in the conversation.’ ” (Ibid., citing People v. Cage (2007) 40 Cal.4th 965, 984.) Improper admission of testimonial statements is an error of federal constitutional magnitude. (Sanchez, supra, 63 Cal.4th at p. 685.) To show any such error is harmless, the state bears the burden of showing beyond a reasonable doubt that the error did not contribute to the verdict obtained. (Chapman v. California (1967) 386 U.S. 18; People v. Rutterschmidt (2012) 55 Cal.4th 650, 661.)
3. Testimonial Statements of Prior Police Contacts Violated Crawford
Lazaro identifies three categories of statements by the prosecution’s gang expert asserted to be inadmissible under Crawford. First, he contends the expert gave inadmissible testimony in describing the primary activities of the Sureño gang. Second, he contends the expert relied on testimonial statements in his testimony about the predicate offenses committed by other Sureños. Third, he contends the expert repeated testimonial statements in describing prior contacts between police and Lazaro. Of these three types of statements, only the last falls within the definition of “testimonial statements” as set forth in Sanchez and other case law.
The court in Sanchez emphasized that historically experts have been allowed to testify to general knowledge in their field of expertise notwithstanding the hearsay rule. (Sanchez, supra, 63 Cal.4th at p. 676.) “ ‘[T]he common law recognized that experts frequently acquired their knowledge from hearsay, and that “to reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on . . . impossible standards.” Thus, the common law accepted that an expert’s general knowledge often came from inadmissible evidence.’ ” (Ibid., quoting Volek, Federal Rule of Evidence 703: The Back Door and the Confrontation Clause, Ten Years Later (2011) 80 Fordham L.Rev. 959, 965, fn. omitted.) By contrast, an expert is generally precluded from testifying to “case-specific” facts. “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge.” (Sanchez, supra, 63 Cal.4th at p. 676.)
The prosecution’s expert testified that the Sureño’s “primary activities” for the purposes of section 186.22 consisted of murder, assault with a deadly weapon, robberies, car thefts, and criminal threats. He stated that this opinion was based on his investigations, his contacts with gang members, cases he had investigated, interviews with other detectives, and research on previous cases. This testimony shows that his opinion was based at least in part on his own personal knowledge. To the extent he relied on hearsay, however, general knowledge about the nature of a gang is not a case-specific fact because it does not “relat[e] to the particular events and participants” accused in this case. (Sanchez, supra, 63 Cal.4th at p. 676.) We conclude the expert’s testimony about the Sureño’s primary activities did not constitute inadmissible testimonial statements under the Confrontation Clause.
As described above in section I.A.4, the expert testified to three predicate offenses committed by other Sureño or Sureño subset members not charged in this case. His opinion was based largely on the certified records of conviction introduced as People’s Exhibits 6, 7, and 8. Lazaro concedes that certified records of convictions do not constitute testimonial statements for Confrontation Clause purposes. (See People v. Taulton (2005) 129 Cal.App.4th 1218 [records prepared to document acts and events relating to convictions and imprisonments are beyond the scope of Crawford].) However, Lazaro points out that the expert testified that his opinion regarding the gang status of one defendant was based on “the facts of the case,” and that the expert did not explain how he knew the gang status of the other two defendants. Nonetheless, for the reasons above, this kind of testimony is not “case-specific” because it does not “relat[e] to the particular events and participants” accused in this case. (Sanchez, supra, 63 Cal.4th at p. 676.) We conclude the court did not err by admitting this testimony.
Finally, as set forth in detail in section I.A.5 above, the expert testified to numerous prior law enforcement contacts with Lazaro. These included 12 separate contacts in which police variously observed Lazaro present in a known gang territory, associating with other known gang members, or displaying gang-related tattoos and clothing. In several of these incidents, police reported that Lazaro admitted he was a Sureño gang member. In one incident, police reported seeing Lazaro spray painting “VTG” on a wall in a known Norteño area. Two of the reported contacts described incidents at Juvenile Hall in which Lazaro was alleged to be involved in fights with Norteños. The record shows the expert testified to the facts of these incidents based on his review of police reports, reports from Juvenile Hall staff, and probation reports. Several of the incidents resulted in police reports describing the facts and subjects of police stops for the purpose of investigating criminal offenses allegedly committed by those subjects, including Lazaro, and their subsequent arrest or citation. There is no evidence in the record that the prosecution’s gang expert was present at or had any personal knowledge of any of these incidents.
Lazaro contends such expert hearsay testimony based on law enforcement reports of these incidents is inadmissible under Sanchez, supra. This claim is well taken. The record establishes that the statements consisted of hearsay as set forth in police reports, and the prosecution did not present the underlying declarants for cross-examination. The testimony at issue is indistinguishable from the kind of expert testimony held to be inadmissible as testimonial statements in Sanchez. “When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency as in [Davis v. Washington (2006) 547 U.S. 813] and [Michigan v. Bryant (2011) 562 U.S. 244], or for some primary purpose other than preserving facts for use at trial. Further, testimonial statements do not become less so simply because an officer summarizes a verbatim statement or compiles the descriptions of multiple witnesses. As the Davis court observed: ‘[W]e do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition. Indeed, if there is one point for which no case—English or early American, state or federal—can be cited, that is it.’ ” (Sanchez, supra, 63 Cal.4th at pp. 694-695, quoting Davis, supra, 547 U.S. at p. 826.)
We conclude the admission of the expert’s testimony describing prior law enforcement contacts with Lazaro violated the Confrontation Clause. Furthermore, the trial court’s limiting instruction to the jury not to consider the testimony for its truth failed to cure the error. (Sanchez, supra, 63 Cal.4th at p. 684.)
4. Harmless Error Analysis
Lazaro contends the admission of testimonial hearsay statements in violation of the Sixth Amendment requires reversal of the criminal threats conviction in addition to the gang-related findings. We conclude the error was harmless.
The federal harmless error analysis under Chapman, supra, requires the Attorney General to show beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Pearson (2013) 56 Cal.4th 393, 463.) “ ‘To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.] Thus, the focus is on what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is “whether the . . . verdict actually rendered in this trial was surely unattributable to the error.” [Citations.]’ [Citations.]” (Ibid.)
Even apart from any erroneously admitted testimonial statements, the evidence of defendant’s gang membership was strong. Orozco testified that both Lazaro and Ruiz held up one finger on one hand and three fingers on the other hand and yelled “sur trece” at the time of the March 13 incident. The gang expert testified that Sureños associate with the number 13 and use hand signs to show 1-3 or 13. He further testified that the phrase “sur trece” is associated with Sureños. There also was evidence that defendant has a Sureño tattoo (one dot and three dots) and had a picture of himself flashing a Sureño gang sign on his phone. In view of the foregoing evidence, the Confrontation Clause violation was harmless beyond a reasonable doubt. (See People v. Ochoa (2017) 7 Cal.App.5th 575, 586-587 [where testimony that individuals had admitted gang membership may have related inadmissible testimonial hearsay, any Confrontation Clause violation was harmless beyond a reasonable doubt because “there was clear evidence of gang membership untainted by a [C]onfrontation [C]lause violation”].)
C. Ineffective Assistance of Counsel
Lazaro contends his trial counsel provided ineffective assistance by failing to properly object when a prosecution witness testified to a statement Lazaro made, while the police were arresting him, to the effect that he owned a shotgun. The Attorney General contends trial counsel’s performance was not deficient because the testimony was admissible, and that Lazaro cannot show prejudice even if the testimony was inadmissible.
1. Background
The prosecution introduced the testimony of private security guard Bruce Hernandez, who witnessed police detaining Lazaro near Santee Drive on March 19, 2014. On direct examination, Hernandez testified that he saw the police bring Lazaro back to the police car after physically detaining him. Hernandez then volunteered the following testimony: “There’s something I’d like to add. There was a comment I believe [Lazaro] was making as he was being put in the car; something about having a shotgun or something.” Defense counsel immediately objected to the statement as hearsay, without foundation, and nonresponsive. The trial court sustained the objection to the testimony as nonresponsive and struck it. The prosecutor then asked Hernandez if he heard Lazaro say anything as police were bringing him to the patrol car. Hernandez responded, “I heard him making a comment that he had a shotgun, and he was looking in our direction.” Hernandez explained that “our direction” meant in the direction of himself and his partner, and he testified that Lazaro’s comment frightened him. Defense counsel made no objection at that point.
Soon thereafter, during a break in the testimony, the parties discussed the above testimony in greater detail outside the presence of the jury. Defense counsel argued that the statement was irrelevant and constituted impermissible character evidence under Evidence Code section 1101, among other arguments. However, counsel stopped short of moving to strike the testimony.
2. Legal Standard
To demonstrate ineffective assistance of counsel, a defendant must first show trial counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) Second, the defendant must show prejudice flowing from counsel’s performance or lack thereof. (Id. at pp. 691-692.) “Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland, at pp. 687-688, 693-694.) “On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) “ ‘Tactical errors are generally not deemed reversible; and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, [the appellate court] will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624.) The defendant has the burden on appeal to show by a preponderance of the evidence that he or she was denied effective assistance of counsel and is entitled to relief. (People v. Dowdell (2014) 227 Cal.App.4th 1388.)
3. Lazaro Did Not Suffer Ineffective Assistance of Counsel
Lazaro contends his trial counsel should have immediately objected to Hernandez’s statement about the shotgun as inadmissible testimony under Evidence Code section 1101. The Attorney General contends any such objection would have been futile because the testimony was admissible as evidence of Lazaro’s intent and to show that the victim’s sustained fear was reasonable. We are persuaded by the Attorney General’s argument that the evidence was admissible to show intent.
Generally, “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) But this rule does not prohibit admission of “evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, [. . .] ) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd (b).) To prove Lazaro aided and abetted Ruiz in making criminal threats, the prosecution had to prove Lazaro intended to aid and abet Ruiz in committing the offense. In turn, the offense of making criminal threats requires proof that the person making the threats intended that his statement be understood as a threat. (§ 422, subd. (a).) Evidence that Lazaro stated he had a shotgun while looking at a security guard was relevant to show Lazaro intended to intimidate the security guards as a general matter. A jury could reasonably infer from this evidence that Lazaro also had the intent to aid Ruiz in making his statements to Orozco understood as threats during the March 13 incident. Moreover, this evidence was not so unduly prejudicial that it outweighed its probative value.
We conclude that even if defense counsel had lodged a timely objection under Evidence Code section 1101, the trial court properly would have overruled the objection. Defense counsel’s performance was therefore not deficient. (People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel does not provide ineffective assistance of counsel by declining to lodge a futile objection].) Even assuming the testimony should have been excluded, Lazaro has not shown a reasonable probability of a more favorable outcome. We conclude Lazaro did not suffer ineffective assistance of counsel.
D. Admission of Hearsay Statements Regarding Ruiz’s Conduct
Lazaro contends the trial court erred by admitting hearsay statements through Orozco relaying claims by several juveniles who told Orozco that Ruiz was looking for him. The Attorney General contends the testimony was admissible to show Orozco’s state of mind, but that even assuming the testimony was inadmissible, Lazaro cannot show prejudice. We conclude Lazaro suffered no prejudicial error.
1. Background
At trial, Orozco gave the following testimony. On March 13, on the evening following the confrontation with Ruiz and Lazaro, Orozco encountered four juveniles near his office. The juveniles asked what had happened, and Orozco told them about the incident. The juveniles were familiar with Ruiz and referred to him by his nickname, “Playboy.” The next day, Orozco spotted the four juveniles near his office again. One of them told Orozco, “Last night, right after you finished talking to us, right when you left the driveway, we saw Alonzo and a group of other guys around the office like they were looking for someone.” The trial court instructed the jury as follows: “So this statement that was just made by the witness is not allowed for the truth of what the juveniles said to him, but only to explain this witness’ subsequent fear, if any.” Orozco added that the juveniles saw the group of men holding objects in their hands, which the juveniles believed to be weapons. The group was looking through the windows of Orozco’s office and checking the door to see if anyone was there. Again, the trial court instructed the jury that the statement was not offered for the truth of what the juveniles said, but only to explain the witness’s subsequent fear. Orozco testified that he was in fact frightened by the juveniles’ claims.
In pretrial proceedings, Ruiz’s counsel objected to the above hearsay statements. She asserted grounds substantially the same as those now set forth by Lazaro on appeal. Lazaro’s trial counsel joined in the objection and adopted the same arguments. The trial court overruled the objection and found the hearsay statements admissible to show Orozco’s state of mind and the presence of sustained fear. The court also analyzed the evidence under Evidence Code section 352 and found that any prejudicial effect of the evidence did not substantially outweigh its probative value. The court also ruled that it would give the jury a limiting instruction, described above, to consider the statements only for their effect on Orozco’s state of mind, and not for their truth.
2. Legal Principles
“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) “Except as provided by law, hearsay evidence is inadmissible.” (Id., subd. (b).)
“[A] statement which does not directly declare a mental state, but is merely circumstantial evidence of that state of mind, is not hearsay. It is not received for the truth of the matter stated, but rather whether the statement is true or not, the fact such statement was made is relevant to a determination of the declarant’s state of mind.” (People v. Ortiz (1995) 38 Cal.App.4th 377, 389.)
“The standard of review for the court’s ruling, along with its determination of issues concerning the hearsay rule, is abuse of discretion.” (People v. Clark (2016) 63 Cal.4th 522, 590.)
3. Lazaro Suffered No Prejudicial Error
As Lazaro concedes, admission of an out-of-court statement only for its effect on the listener, and not for the truth of the statement, does not contravene the hearsay rule. The Attorney General contends the statement was relevant to Orozco’s statement of mind. To prove a criminal threat, the prosecution must show, among other elements, that “the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ and [] that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 228 (Toledo).) The trial court ruled that the juveniles’ statements were relevant and probative to show Orozco suffered a state of sustained fear, notwithstanding the truth of the statements. Lazaro argues, however, that the statements could only be relevant if they were taken to be true. He contends that the victim’s sustained fear must be connected to the words or conduct of the defendant, and that no such connection could be established unless the jury accepted as true the juveniles’ assertion that Ruiz was one of the persons looking for Orozco. The Attorney General contends it is unnecessary to show that a witness’s fear was connected to the defendant’s conduct.
Based on the elements required to prove a criminal threat, Lazaro is correct that the victim’s sustained fear must be caused by the defendant’s words or conduct. (Toledo, supra, 26 Cal.4th at p. 228.) But that was not the only theory of relevance to support admission of the testimony for its effect on the listener. “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to her credibility and is well within the discretion of the trial court.” (People v. Burgener (2003) 29 Cal.4th 833, 869.) Furthermore, “it is not necessary to show the witness's fear of retaliation is ‘directly linked’ to the defendant for the threat to be admissible. [Citation.] It is not necessarily the source of the threat—but its existence—that is relevant to the witness’s credibility.” (Id. at pp. 869-870.)
We conclude the juveniles’ statements were therefore relevant and probative to the credibility of Orozco’s testimony. Moreover, the trial court instructed the jury not to consider the statements for their truth. In the absence of any showing to the contrary, we assume the jury properly followed the trial court’s instructions. Lazaro has made no showing to the contrary. We conclude the trial court’s admission of the juveniles’ statements was not an abuse of discretion. Even assuming admission of the testimony was error, Lazaro has not shown how he was prejudiced. The statements concerned the conduct of Ruiz, not Lazaro, and the prosecution presented abundant evidence to prove Orozco’s state of sustained fear apart from the juveniles’ statements to him. We conclude this claim is without merit.
Lazaro also claims the cumulative impact of prejudice from multiple errors requires us to reverse his conviction. As set forth above, we conclude the trial court erred by admitting testimonial statements through the prosecution’s gang expert, but we conclude the error was harmless and we find no other errors. Because there is no prejudice to cumulate, we conclude this claim is without merit.
E. Correction of the Minute Order and the Abstract of Judgment
Lazaro claims the minute order and the abstract of judgment erroneously reflect the imposition of a concurrent term for Count 5, active participation in a street gang, whereas the trial court ordered this term to be stayed. The Attorney General concedes this claim and joins Lazaro’s request to correct the record. We accept the Attorney General’s concession.
At sentencing, the court stayed the term on Count 5 under section 654. However, both the minute order of the hearing and the abstract of judgment erroneously state that the term was imposed concurrent to the term on Count 2. “ ‘Rendition of judgment is an oral pronouncement.’ ” (People v. Mesa (1975) 14 Cal.3d 466, 471.) As a general matter, where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) “Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.” (Id. at p. 185.) On these grounds, we will order correction of the minute order and the abstract of judgment.
III. DISPOSITION
The judgment is affirmed. The trial court shall correct the minute order of the June 5, 2015 hearing and the abstract of judgment to show that the term for Count 5 was stayed.

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ELIA, Acting P.J.





WE CONCUR:






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PREMO, J.






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MIHARA, J.
















People v. Lazaro
H042498