P. v. Hernandez

Filed 1/30/07 P. v. Hernandez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. William J. Birney, Judge. Affirmed.

________

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

_________

A jury convicted Eddie Hernandez of second-degree vehicular burglary. (Pen. Code, 459, 460; all further section references are to the Penal Code.) Hernandez later admitted having one strike and two prison term prior felony convictions. ( 667, subds. (b)-(i), 1170.12; 667.5, subd. (b).) The court imposed an aggregate 4-year sentence.

Hernandez appeals, contending that (I) the court erred in refusing to strike some of the victims testimony as a sanction for an alleged prosecution discovery violation; (II) his counsel was ineffective for failing to object to (A) the use of hearsay evidence to support a gang experts testimony, and (B) the prosecutors argument allegedly misstating the law regarding the lesser included crime of auto tampering; (III) the court erred in failing to give a clarifying instruction regarding auto tampering sua sponte; and (IV) the court prejudicially erred in effectively excising portions of CALCRIM No. 226 (Fall 2006 ed.; all further CALCRIM references are to the Fall 2006 ed.) regarding witness credibility. We reject these contentions and affirm the judgment.

FACTS

About 7:00 a.m. on August 8, 2005, Onofre Varela, Sr. and his son Onofre Varela, Jr. were at home.^[1] As Son stepped outside, he saw Hernandez, whom the family did not know, standing hunched over the drivers door handle of the familys parked and locked van. Son ran inside and told Father that someone was trying to break into the van, after which both men ran outside, screaming, toward the van. They saw Hernandez enter the van and close the door. As they ran toward the van, Hernandez exited it and ran away. Father and Son pursued him, but Father slowed down when he saw a car with a man in its drivers seat and its motor idling parked behind the van, thinking that this second man may have been with Hernandez.^[2] Son, however, continued to chase Hernandez, and noticed he had a screwdriver in one hand. When Son got within a few feet, Hernandez turned, confronted him, thrust the screwdriver towards him, and said, Im from Morton Town. I am going to get you. Father saw the confrontation and heard Hernandez threaten[] my son with his friends. Son saw that Hernandez had the letters M.T.S. tattooed on his forehead. Because their van was intact and they did not want to be late, Father and Son withdrew, and Hernandez walked away coolly[,] . . . like a strut. Like an achievement. Nothing was taken from the van, and the only damage was a hole about the size of a quarter near the drivers door lock. The Varelas did not then report the incident to the police.

About a week later, Father and Son were driving near their house when Son saw Hernandez walking on the sidewalk with another man. They followed Hernandez to a house a few blocks away, then went home and called the police. Before the police arrived, Father (but not Son) saw Hernandez walking in front of the familys house. Father believe[d] [Hernandez] was trying to intimidate me and my family because he had threatened my son.^[3] (Italics added.)

After Fathers but before Sons testimony, Hernandez moved to exclude evidence that he threatened the Varelas, specifically Fathers testimony that he thought that the second man in the car parked behind his van might be with Hernandez and that Hernandez returned to the family home to try and intimidate him. Hernandez argued that Father had not so testified at the preliminary hearing, that the prosecutor should have discovered and disclosed this information before offering it at trial, and that knowing this information would have changed the defense strategy.^[4] Hernandez argued that this evidence constituted new evidence of uncharged crimes, specifically threats, and that Son likewise should be barred from so testifying. The prosecutor responded that (1) both statements referred to Fathers state of mind and did not accuse Hernandez of making additional threats, (2) the evidence was adequately disclosed at the preliminary hearing, and (3) the threat and gang evidence was offered to prove identity, not uncharged crimes. The trial court denied the motion, agreeing that Fathers new testimony related only his state of mind, not that Hernandez uttered any additional threats, and that Son had not yet testified.

Deputy Sherriff Thomas Mayberry, a gang expert, testified that the Morton Town Stoners was a small street gang that operated in an area which included the Varelas house and the house to which they followed Hernandez. The Morton Town Stoners identified themselves by tattoos with the letters M.T.S., which stands for Morton Town Stoners. When officers encounter gang members, they fill out field identification cards with identifying information, including names, addresses, gang affiliations, physical descriptions, and tattoos, to provide intelligence on individual gang members and general gang membership. Mayberrys records disclosed that, based on information from field identification cards, the Morton Town Stoners had 31 documented members of whom Hernandez was the only one with M.T.S. tattooed on his face. Hernandez field identification card was filled out on August 17, 2005, nine days after the Varelas van was burglarized, and listed his address as the same house to which the Varelas followed him.

In his opening statement made before the prosecutor presented any evidence, Hernandez lawyer stated that the evidence would show that he broke into the van to obtain shelter, not to steal. During a recess before the prosecution rested, the court denied Hernandez motion to prevent the prosecution from impeaching him with several prior felony convictions if he testified. Hernandez counsel then announced that Hernandez would not testify. Hernandez did not present a defense.

The court instructed the jury pursuant to CALCRIM No. 1700 that to commit vehicular burglary Hernandez must have entered a locked vehicle with the intent to commit theft, but that if so, he was guilty whether or not he actually committed theft.^[5] The court also instructed the jury pursuant to CALCRIM No. 1821 that to commit vehicle tampering as a lesser-included crime of vehicular burglary Hernandez must have willfully damaged or tampered with someone elses vehicle without the owners consent.^[6]

During the defense argument, Hernandez counsel argued that he was guilty of vehicle tampering, not vehicular burglary, because the evidence was insufficient to prove beyond a reasonable doubt that he intended to commit theft when he entered the Varelas locked van. In rebuttal, as part of her argument that the jury should find that Hernandez entered the van with the intent to commit theft and thus committed vehicular burglary, not vehicle tampering, the prosecutor argued: [Hernandez] has a right to request to have these sort of lesser included offenses when they believe that the evidence doesnt meet the charged offense. [] For example, if there is something missing from element one and only element two is required to prove the lesser, or the other way around. [] Auto tampering . . . was the . . . situation where somebody takes the license plate off your car or takes the tags or the registration tags. . . . Somebody takes your tags because their car isnt registered. That is auto tampering. That is taking something from another persons vehicle without their consent[,] [] . . . or damaging or taking something from someones vehicle. [] The same might be true, for example, if the vehicle wasnt locked. You leave the car in your driveway unlocked. They open the door. They get inside, and they damage the steering column because they are going to steal the car, but then they dont and they leave. [] Thats entering a vehicle and causing damage but the car wasnt locked. Thats the difference. A lesser included just means there isnt something met with the offense charged. Switching plates, reaching into a vehicle that the window is down and taking something, taking the tags. Thats not what we have in this situation. [] We have a locked vehicle that was entered. . . . The law tells you, you can infer the intent from circumstantial evidence. The prosecutor then argued extensively why the jury should interpret the circumstantial evidence to show that Hernandez intended to steal the van or something from it when he entered and would have done so had the Varelas not interrupted him.

The court instructed the jury pursuant to CALCRIM No. 226 regarding how to judge witness credibility. The court gave the jury a written version of all the instructions, including CALCRIM No. 226, during deliberations, and both orally and in writing instructed the jurors that they exclusively had to decide what happened based only on the evidence presented at trial, that they should not assume just because I am giving an instruction on the law that I am suggesting anything about the facts[,] and it is not my role to tell you what your verdict should be.^[7] In its oral instructions, however, the court, without objection, made additional comments regarding CALCRIM No. 226, two of which Hernandez challenges on appeal. We quote the written version supplied to the jury, and include the courts challenged additional comments in italicized brackets: You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witnesss gender, race, religion, or national origin. You may believe all, part, or none of any witnesss testimony. Consider the testimony of each witness and decide how much of it you believe. [] In evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [] How well could the witness see, hear, or otherwise perceive the things about which the witness testified? [] How well was the witness able to remember and describe what happened? [] What was the witnesss behavior while testifying? [] Did the witness understand the questions and answer them directly? [] Was the witnesss testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? [] I dont remember any such thing here.] [] What was the witnesss attitude about the case or about testifying? [] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [] I dont believe we had anything that falls under that category.]^[[8]] [] How reasonable is the testimony when you consider all the other evidence in the case? [] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.

The jury asked no questions and deliberated for 40 minutes before convicting Hernandez of vehicular burglary.

DISCUSSION

I. The Court Properly Did Not Strike Fathers Testimony.

Hernandez contends that the court erred in not striking Fathers testimony as a discovery violation because the prosecutor allegedly failed to notify Hernandez of Fathers new testimony about additional threats to which he had not testified at the preliminary hearing, specifically his trial testimony about the second man in the parked car and his feeling threatened when Hernandez returned to the Varelas home shortly before they called the police. The contention lacks merit.

Section 1054 et seq. governs discovery in criminal cases. The relevant section is 1054.1, subdivision (f), which states that the prosecution must disclose to the defense [r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial . . . . Although under sections 1054.1 and 1054.3 (the reciprocal provision governing defense disclosures to the prosecution) the parties are required to obtain and disclose names and addresses, if reasonably accessible, of witnesses they intend to call at trial and cannot avoid that obligation by refusing to obtain names and addresses (In re Littlefield (1993) 5 Cal.4th 122, 133-137), the prosecution has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense. [Citations.] (Id. at p. 135.) Although the parties must disclose written or oral witness statements within their possession (Roland v. Superior Court (2004) 124 Cal.App.4th 154, 160-170), they are not required to interview potential witnesses. We review trial court discovery rulings for abuse of discretion. (People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1185-1187.)

The court did not abuse its discretion. First, Hernandez does not argue, and the record does not disclose, that the prosecution interviewed Father after his preliminary hearing testimony but before trial. Thus, there was no witness statement to disclose. Second, the prosecution was not obligated to conduct an interview. Finally, the preliminary hearing transcript contained much evidence about threats by Hernandez and at least one other person against the Varelas, giving Hernandez adequate notice that they might testify about threats. Contrary to Hernandez arguments, the allegedly new evidence appears to have had nothing to do with his decision not to testify. Rather, he chose not to testify to avoid being impeached with his prior felony convictions.

II. Hernandez Trial Counsel Provided Effective Representation.

Hernandez contends his trial counsel was ineffective because he failed to object to (A) the gang experts testifying about allegedly inadmissible hearsay from the field identification cards and (B) the prosecutors allegedly improper argument regarding the lesser-included crime of vehicle tampering. Regarding (A), Hernandez argues that the experts testimony that Hernandez was the only Morton Town Stoners gang member with M.T.S. tattooed on his face and lived at the house to which the Varelas followed him was inadmissible hearsay taken from the field identification cards.^[9] Regarding (B), Hernandez argues that the prosecutor misstated the law by stating that he had to steal or damage something on the Varelas van to be guilty of vehicle tampering. This contention lacks merit.

A convicted defendants claim that counsels assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsels performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 694; People v. Wright (1990) 52 Cal.3d 367, 404.) Moreover, where the record is silent regarding why trial counsel failed to act as demanded on appeal, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza-Tello (1997) 15 Cal.4th 264, 266.)

A.

Section 1280 defines the official records exception to the hearsay rule: Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [] (a) The writing was made by and within the scope of duty of a public employee. [] (b) The writing was made at or near the time of the act, condition, or event. [] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness. The proponent of the evidence has the burden of establishing trustworthiness. The trial court, however, has wide discretion in determining whether sufficient foundation is laid to qualify evidence as a business record. On appeal, exercise of that discretion can be overturned only upon a clear showing of abuse. (People v. Beeler (1995) 9 Cal.4th 953, 978-979, internal quotations and citations omitted.)^[10]

Police reports are admissible under the public records exception to the hearsay rule where the reports contain the observations of police officers acting in their official capacity, and experts may rely on such reports in forming their opinions. (Lake v. Reed (1997) 16 Cal.4th 448, 461; People v. Gardeley (1996) 14 Cal.4th 605, 617-620 [gang expert]; Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn. 6; People v. Ruiz, supra, 62 Cal.App.4th at p. 241 [expert properly relied on and testified regarding information from field identification cards]; Gananian v. Zolin, supra, 33 Cal.App.4th at pp. 638-644; 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, 248-249, pp. 967-969.) Deputy Mayberry testified that police officers filled out field identification cards as part of their official duties and that they contained information observed by the recording officer. Thus, the field identification cards constituted admissible public records, and Mayberry, as a gang expert, properly could rely on and testify about the cards in forming his opinion.

Contrary to Hernandez contention, Crawford v. Washington (2004) 541 U.S. 36, does not require a different result. Crawford stated without elaboration that business records generally did not constitute testimonial hearsay which must be excluded absent unavailability and prior ability to cross-examine. (Id. at p. 56.) Moreover, an experts reliance on hearsay in forming an opinion does not implicate Crawford. (People v. Fulcher (2006) 136 Cal.App.4th 41, 55-57; People v. Thomas (2005) 130 Cal.App.4th 1202, 1208-1210.)

Because the evidence properly should have been admitted over a hearsay objection, Hernandez counsel cannot have been ineffective for failing to make such an objection.

B.

Vehicle tampering, a lesser-included crime of vehicular burglary, includes both breaking or removing parts of a vehicle and tampering with or injuring the vehicle as a whole. As defined by the dictionary, tamper means to interfere with, which includes conduct which is broader in scope than merely damaging a vehicle, for it encompasses any act inconsistent with the ownership thereof. (People v. Anderson (1975) 15 Cal.3d 806, 810; People v. Mooney (1983) 145 Cal.App.3d 502, 504-506.) A prosecutor commits misconduct by misstating the law. (People v. Combs (2004) 34 Cal.4th 821, 854.) Hernandez argues the prosecutor misstated the law by arguing that he did not commit vehicle tampering because that crime requires stealing or damaging the car or a part of it. Here, there was no misconduct because the prosecutor did not misstate the law.

Hernandez argued to the jury that he committed the lesser-included crime of vehicle tampering, not the charged crime of vehicular burglary, because the evidence did not prove beyond a reasonable doubt that when he broke into and damaged the door lock of the Varelas van without permission he intended to steal the van or something from it. In rebuttal, the prosecutor, while discussing the distinction between charged and lesser-included crimes, gave examples of conduct that would be vehicle tampering but not vehicular burglary. The examples involved either damaging or stealing something from the car, or entering an unlocked car. The prosecutor never stated that vehicle tampering required stealing or damaging the car or a part of it. Her comments were examples of how one might commit vehicle tampering without committing vehicular burglary. All the prosecutors examples correctly described tampering, not burglary. The prosecutor then argued why the jury should find Hernandez guilty of vehicular burglary because the circumstantial evidence disclosed that he intended to steal the van or something from it when he broke into the van without permission. Because the prosecutor did not misstate the law, an objection would have been properly overruled. Thus, trial counsel was not incompetent for failing to make a futile objection that properly should have been overruled.

III. The Court Was Not Required to Further Instruct on
Tampering Sua Sponte.

As discussed in section IIB, vehicle tampering has no technical legal meaning and is defined by the normal meaning of the word. (People v. Anderson, supra, 15 Cal.3d at p. 810; People v. Mooney, supra, 145 Cal.App.3d at pp. 504-505.) As such, the court was not required to further instruct on its meaning sua sponte. Moreover, we reject Hernandez argument that the prosecutors allegedly improper argument required further instruction because, as discussed in the same section, the prosecutors argument was proper.

IV. The Court Did Not Excise Portions of CALCRIM No. 226.

Hernandez contends that the court prejudicially erred by effectively excising from CALCRIM No. 226 (the instruction regarding weighing witness credibility) two factors the jury otherwise could consider: (1) whether a witness made a prior consistent or inconsistent statement; and (2) whether the witnesss testimony was influenced by bias, prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided. Hernandez argues that the court thereby erred because there was evidence supporting both factors which the jury could have considered, and that the error in omitting them prejudiced him. We disagree.

CALCRIM No. 226 and CALJIC No. 2.20 (Fall 2006 ed.; all further CALJIC references are to the Fall 2006 ed.) describe similar factors the jury should consider in determining witness credibility. (People v. Mojica (2006) 139 Cal.App.4th 1197, 1204, fn. 4; People v. Fraser (2006) 138 Cal.App.4th 1430, 1451-1452, fn. 6.) [T]he court should give the substance of CALJIC No. 2.20 in every criminal case, although it may omit factors that are inapplicable under the evidence. [Citation.] (People v. Horning (2004) 34 Cal.4th 871, 910, italics added.) We review errors in giving a complete witness credibility instruction under the miscarriage of justice standard of People v. Watson (1956) 46 Cal.2d 818, 836, which requires reversal only if it is . . . reasonably probable that a result more favorable to defendant would have occurred had the excised instructional language been included. (People v. Galloway (1979) 100 Cal.App.3d 551, 567-568.)

As the Attorney General points out, in our case the court instructed the jury regarding all the witness credibility factors in CALCRIM No. 226 and did not omit the portions dealing with prior statements or a witnesss relationship to another witness. The court read the two challenged factors to the jury and included them, without the courts comments, in the written instructions provided during deliberations. Moreover, the courts other written and oral instructions (the jury was the exclusive judge of the facts and should not assume that because an instruction was given that the court was suggesting anything regarding the facts) also permitted the jury to consider those factors despite the courts comments. Thus, because the court instructed the jury regarding those factors and that it could disregard the courts comments, our case is distinguishable from Horning and Galloway where courts omitted specific witness credibility factors from instructions because they believed there was no evidence supporting them. In the cited cases, the jury never heard about the omitted factors and thus could not apply them regardless whether they agreed with the court that no evidence existed to support them. In our case, the jury could consider the factors despite the courts comments. Thus, contrary to Hernandez argument, the courts comments did not remove the two factors from the jurys possible consideration.

Moreover, any error was harmless for several reasons. First, there was no evidence that any prosecution witness made consistent or inconsistent prior statements. Although Father and Son testified that they reported the crime to the police, they were not asked and did not testify regarding the content of those reports. Hernandez lists three things about which Father testified at trial but not at the preliminary hearing: (1) the content of Hernandez gang threat towards Son during their confrontation; (2) the second man in the parked car, and (3) his feeling intimidated when Hernandez returned to the Varelas house shortly before they called the police. Contrary to Hernandez suggestion, however, Father was not asked at trial about these alleged omissions; indeed, no one mentioned that either Father or Son had testified before. Thus, there was no evidence before the jury that any prosecution witness made any prior consistent or inconsistent statements.

Second, although the second allegedly omitted factor (relationship to someone involved in the case or an interest in how the case was resolved) was present (Father and Son were directly related to each other and both, as burglary victims, had an interest in how the case was resolved), there was no evidence that they altered their testimony in any way because of their relationship or because of their interest in the outcome of the case. Third, as discussed above, the courts comment did not compel the jury to accept the courts view of the evidence; other instructions told the jury that it could disregard the courts comments and the factors remained in the printed instructions supplied during deliberations.

Most importantly, at trial, Hernandez never disputed the accuracy of Fathers and Sons testimony that he broke into their locked van without permission, fled, threatened Son with retaliation as an admitted Morton Town Stoners gang member, had M.T.S. tattooed on his forehead (which the jurors could see for themselves), and lived at the house to which the Varelas followed him. Hernandez told the jury beginning with his opening statement and throughout his argument that he committed the acts to which the Varelas testified, but did not intend to steal the car or its contents, and thus was guilty of vehicle tampering, not vehicular burglary. The only disputed trial issue, about which the Varelas offered no testimony, was Hernandez intent when he concededly broke into their locked van without permission. The jury had to decide that issue by evaluating what inferences should be drawn from the undisputed circumstantial evidence, such as the time, Hernandez use of a screwdriver, flight, threat, and gang membership. Hernandez conceded the Varelas credibility and that he was guilty of vehicle tampering. The jury deliberated for only 40 minutes and asked no questions before convicting Hernandez of vehicular burglary, demonstrating that the case was not close. Nothing suggests that the jury would have reached different conclusions regarding witness credibility or the verdict had the court not made the challenged comments. Under these circumstances, it is not reasonably probable that a different result otherwise would have occurred. (People v. Galloway, supra, 100 Cal.App.3d at pp. 567-568.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J. JACKSON, J.^*

Publication courtesy of California free legal advice.

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^[1] To avoid confusion, hereafter we refer to the Varelas respectively as Father and Son.

^[2] Son did not testify about this second man or the parked car.

^[3] Hernandez moved to strike this statement immediately after it occurred, but the court did not rule on the motion, instead advising Father, Wait and just answer what he asks.

^[4] With the following exceptions, Father and Son testified at the preliminary hearing consistent with their trial testimony. At the preliminary hearing, Father said he heard Hernandez say something to Son but, contrary to his trial testimony, Father could not remember the words. Also at the preliminary hearing but not at trial, Father and Son testified that they told the police that Hernandez threatened them, and that sometime after they reported the crime to the police someone identifying himself as Hernandez relative approached them, said Hernandez was remorseful and would pay for any damage, and asked the Son not to testify. Both men said they felt intimidated by this person. At the conclusion of the preliminary hearing, the magistrate issued a restraining order against Hernandez prohibiting him from contacting Father and Son or having anyone do so for him other than his lawyer. At the preliminary hearing, however, Father did not testify (1) that Hernandez came to their house after they followed him to his house, (2) that he believed Hernandez did so to try and intimidate the family, or (3) about the second man in the car parked behind his van.

^[5] The court instructed the jury that to prove Hernandez committed vehicular burglary, the prosecution had to prove that: [] 1. [Hernandez] entered a locked vehicle; [] AND [] 2. When he entered a locked vehicle, he intended to commit theft by larceny [which the court further defined in another instruction]. [] . . . [] A burglary was committed if [Hernandez] entered with the intent to commit theft by larceny. [Hernandez] does not need to have actually committed theft by larceny as long as he entered with the intent to do so. The People do not have to prove that [Hernandez] actually committed theft by larceny. (CALCRIM No. 1700.)

^[6] The court instructed the jury that to be guilty of vehicle tampering, Hernandez must have (1) willfully damaged/ tampered with someone elses vehicle; [] AND [] 2. [Hernandez] did not have the owners consent to do that act. (CALCRIM No. 1821.) The court did not instruct regarding an alternative theory for the first element of vehicle tampering that it could be committed by breaking or removing part of anothers vehicle. (Ibid.)

^[7] Hernandez does not dispute the accuracy of the written version of CALCRIM No. 226 given to the jury during deliberations. The court made many other additional comments or omissions while instructing the jury which Hernandez does not challenge. We note, however, that although the court instructed the jury pursuant to CALCRIM No. 3550, in both the oral and written instructions, it omitted one sentence therefrom, which states: Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be. (Cf. CALCRIM No. 3530 [if the court comments on the evidence, it should instruct the jurors that they are the sole judges of the evidence and witness credibility and remain free to disregard the comments (People v. Proctor (1992) 4 Cal.4th 499, 543)].)

^[8] Although both Father and Son testified at trial that they reported the crime to the police the day they followed Hernandez to the nearby house, they were not asked and did not testify about the content of those reports or their preliminary hearing testimony.

^[9] The expert testified only about whether Hernandez was a member of the Morton Town Stoners and whether he was its only documented member with M.T.S. tattooed on his face, which was introduced only to prove his identity as the perpetrator. The expert gave no testimony regarding gang conduct or criminality. Other than his claim that the evidence was inadmissible hearsay, Hernandez does not challenge admission of the gang evidence. (See People v. Ruiz (1998) 62 Cal.App.4th 234, 239-240.)

^[10] The business records and official records hearsay exceptions are similar, except that the official records exception does not require a witness to testify to the identity of the record and its mode of preparation in every case. (Gananian v. Zolin (1995) 33 Cal.App.4th 634, 639-640, fn. 3.)

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)