P. v. Castaneda

Filed 3/14/07 P. v. Castaneda CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Janelle Marie Boustany, and Lynn McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of premeditated attempted murder (count 1), assault with a deadly weapon (count 2), and active participation in a gang (count 3). The jury also found:

(1) In the commission of the attempted murder, defendant personally used a knife, personally inflicted great bodily injury, and acted for the benefit of a criminal street gang. (2) In the commission of the assault, defendant personally inflicted great bodily injury and acted for the benefit of a criminal street gang.

The court sentenced defendant to 19 years to life. We affirm the judgment.

I

FACTS

A. The Stabbing

We state the facts most favorably to the judgment. (People v. Acevedo (2003) 105 Cal.App.4th 195, 197, fn. 1.)

Defendant was an active member of a gang known as Corona Vatos Locos or Corona Varrios Locos (CVL). The parties stipulated that CVL met the criteria for a criminal street gang under Penal Code section 186.22.^[1]

On October 1, 2004, around 3:00 p.m., Darrell McClain and Eugene Arkliss were walking on a sidewalk in the Country Hills apartment complex in Corona, where McClain lived. McClain was a member of the 1200 Blocc Crips, a predominately African-American gang in Riverside. Arkliss was McClains friend but was not a gang member.

Defendant and a 14 or 15 year old known as Jimmy were walking on a cross street toward an intersection McClain and Arkliss were approaching. Defendant and Jimmy started walking toward McClain and Arkliss, flashing gang signs at them. Defendant was making signs for CVL.

McClain and Arkliss were saying something, but they did not make any gang signs. McClain, followed by Arkliss, started walking toward defendant and Jimmy, to find out what was going on. The four met in the middle of the street. McClain asked, Whats up? Defendant had his hand in his pocket.

McClain was not carrying a weapon. As far as McClain knew, Arkliss was not carrying a weapon either. When defendant and McClain met in the street, McClain believed he and defendant were going to fight, but with fists, not weapons.

McClain took everything out of his front pants pockets and handed it to Arkliss. There were no weapons among the items McClain was giving Arkliss. McClain already had his shirt off. Defendant had his hand down at his side, as if he were hiding something. Arkliss and Jimmy were standing back.

McClain and defendant approached each other. Defendant took a step or two up and made a flinching move, thrusting his right shoulder. McClain then started to make a move toward defendant. As soon as McClain moved, defendant stabbed him in the side of the chest with a butterfly knife.

McClain grabbed his side and went back toward the sidewalk. He let go of his side, and blood squirted out. Defendant said, Todays your day to die. Defendant or Jimmy said, Are you going to call the police?

Defendant and Jimmy ran from the scene. McClain was taken by ambulance to the hospital. That night at the hospital, McClain identified defendant from a photographic lineup as the man who had stabbed him.

Two juveniles, William S. and Joshua M., saw the stabbing from the top of an outside stairway at the apartment complex. They also identified defendant as the stabber. Neither William nor Joshua was a gang member, but they both associated with McClain, and at the time of trial William had admitted committing a robbery with McClain in October 2004.

B. Investigation

Police investigating the scene found graffiti on the sidewalk about 20 feet from the site of the stabbing. Among the graffiti were the letters CVLS and fuck you, assholes, right next to each other.

On October 22, 2004, police stopped and interviewed defendants younger brother Jimmy Castaneda. They recovered from him a fixed-bladed knife.

On November 3, 2004, police searched defendants familys house, located about two blocks from the apartment complex. The fence to the backyard on the side of the house had a sign on it that had CVLS written on it. In one of the bedrooms of the house, identified as belonging to defendants older brother Sammy, there was a jacket with the name Visioneros on it. Visioneros was a subset of CVL. There were also various items, including a bed frame and a shoebox, with CVL and Visioneros graffiti written on them. Police found another Visioneros jacket in the garage.

Sammy Castanedas wife or girlfriend told police that when defendant stayed at the house, he did not occupy a particular room but would sleep in the living room, a bedroom, or the garage at different times.

C. Gang Evidence

According to the prosecutions gang expert, Corona Police Department Detective Bloomfield, the police first documented defendant as having claimed CVL in 2001. When defendant was booked into jail, he described himself to the classification officer as a member of Fourth Street Gang in Corona. Fourth Street is another name for CVL. Defendant appeared at his preliminary hearing in standard-issue jail slippers that had CT and 4 S-T carved into them, which were references to Corona or CVL.

According to Bloomfield, defendants younger brother Jimmy was a self-admitted member of Visioneros. Defendants older brother Sammy was also an identified member of CVL and Visioneros.

Bloomfield concluded defendants stabbing of McClain benefited CVL. CVL had an ongoing feud with outsiders and African-American gang members. McClain was an outside African-American gang member who was living in CVL territory. By stabbing him, defendant showed that CVL took care of its territory. The stabbing sent a message to outside gang members to stay out of CVL territory.

II

DISCUSSION

A. Instructional Error

Defendant contends the trial court erred in (1) refusing to instruct on imperfect self-defense and (2) instructing on flight as evidence of guilt.

1. Imperfect self-defense

Defense counsel conceded defendant stabbed McClain but argued he acted in self-defense. The court instructed on reasonable self-defense, telling the jury it is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing, and does believe, that bodily injury is about to be inflicted on him.

Defense counsel requested CALJIC No. 5.17, on imperfect self-defense. That instruction states in relevant part: A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. The court denied the request, stating it did not believe the evidence supported the instruction. Defendant contends the failure to give the instruction was reversible error.

There was little or no evidence suggesting defendant was afraid of imminent peril to life or great bodily injury when he stabbed McClain. Defendant did not testify, so there was no direct evidence that he was afraid of McClain. The circumstantial evidence was no more suggestive of fear. Defendant actively confronted McClain by walking toward him and flashing gang signs, then watched McClain empty his pockets with his shirt off, waited without backing off or taking cover until McClain made a move, promptly stabbed him in the chest, told McClain it was his day to die, remained at the scene while he or Jimmy asked McClain and Arkliss if they were going to call the police, and only then left the scene.

At any rate, even assuming the court should have instructed on imperfect self-defense, its failure to do so was not prejudicial. Failure to instruct on imperfect self-defense is reversible only if it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred [citation]. [Citation.] (People v. Blakeley (2000) 23 Cal.4th 82, 93; accord, People v. Quintero (2006) 135 Cal.App.4th 1152, 1167; see People v. Randle (2005) 35 Cal.4th 987, 1003-1004 [imperfect defense of others].) Here, decisions of the California Supreme Court, coupled with the findings the jury made in convicting defendant, compel the conclusion that defendant would not have obtained a more favorable outcome had the court instructed on imperfect self-defense.

In People v. Koontz (2002) 27 Cal.4th 1041, the defendant testified that he shot the victim because the victim assaulted him with a knife. The Supreme Court held that the failure to give an imperfect self-defense instruction was harmless, because the jury necessarily rejected the unreasonable self-defense theory in returning a true finding on the robbery special-circumstance allegation. This finding signified the jurys unanimous conclusion that the killing occurred during the commission of a robbery and that defendant committed the murder in order to carry out or advance the commission of the crime of robbery. (Id. at pp. 1086-1088.) Therefore, the defendant could not have committed the murder because he believed he needed to protect himself.

Here, the jury unanimously found that defendant committed the stabbing with the specific intent to promote, further, and assist in any criminal conduct by gang members within the meaning of Penal Code Section 186.22, Subdivision (b). Having determined that defendant committed the stabbing for the purpose of furthering criminal conduct by CVL members, the jury could not also have made the inconsistent finding that the stabbing was committed for the purpose of avoiding imminent peril to life or great bodily injury (CALJIC No. 5.17), even if the court had instructed on imperfect self-defense.

The jury also specifically found the stabbing was willful, deliberate, and premeditated. In People v. Manriquez (2005) 37 Cal.4th 547, the defendant confronted the victim in a parking lot and shot him. There was testimony that the victim usually carried a gun but no evidence that the defendant thought the victim was armed. The Supreme Court found no imperfect self-defense instruction was required but also found that, even assuming one was required, failure to instruct was harmless in view of the jurys finding of first degree murder. By making that finding, the jury implicitly rejected defendants version of the events, leaving no doubt the jury would have returned the same verdict had it been instructed regarding imperfect self-defense. [Citation.] (Id. at p. 582.)

Here, similarly, by finding defendant premeditated the attempted murder, the jury implicitly rejected any possibility that defendant actually believed, reasonably or unreasonably, that the stabbing was necessary to avoid imminent peril to life or great bodily injury. The court instructed the jury that to find premeditation, it had to find that the attempted murder was preceded and accompanied by a clear and deliberate intent to kill which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation . . . . The jurys finding that defendant formed a clear and deliberate intent to kill before he committed the stabbing precluded the possibility he acted spontaneously, out of fear. (See People v. Lewis (2001) 25 Cal.4th 610, 646 [jurys finding that defendant formed intent to steal before he entered apartment and stabbed victims precluded imperfect self-defense, making failure to instruct harmless].)

2. Flight

Section 1127c provides in relevant part that where evidence of a defendants flight is relied on to show guilt, the court shall instruct the jury that the flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding [the defendants] guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.

Over defendants objection, the court in this case gave the standard flight instruction, CALJIC No. 2.52, which tracks the language of section 1127c. Defendant argues there was no evidence he did anything more than leave the scene, as did everyone else who was there. He did not flee, and therefore there was no basis for giving a flight instruction.

In general, a flight instruction is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. (People v. Smithey (1999) 20 Cal.4th 936, 982.) Flight does not require either the physical act of running or the reaching of a faraway haven, as long as the circumstances warrant an inference that the defendant acted with a purpose to avoid being observed or arrested. (Ibid.)

Defendants claim that he did nothing more than leave the scene ignores the record. According to witness Joshua M., after the stabbing defendant and Jimmy ran from the scene. Evidence that the defendant ran from the scene of the crime is enough by itself to justify the flight instruction.

In People v. Caudillo (1980) 101 Cal.App.3d 122, for example, a witness saw the defendant and his accomplice run from a liquor store just after it was robbed. The defendant argued, much as defendant does here, that every patron of a liquor store eventually leaves it, and thus there was no basis for giving CALJIC No. 2.52. (Caudillo, at pp. 124-125.) The court disagreed and held the instruction was proper. (Id. at p. 125; accord, People v. Vasquez (1979) 94 Cal.App.3d 42, 45 [witnesses saw defendant running out of market after robbery]; People v. Curry (1977) 76 Cal.App.3d 181, 184, 186 [defendant, after masturbating in public alley, walked hastily or ran from scene after officer pointed him out].)

The other circumstances under which defendant left the scene also supported the inference that he left because he was conscious of guilt and not just because everyone else did. According to Joshua, just before defendant left, he said, Todays your day to die, and defendant or Jimmy said, Are you going to call the police? The statement that it was McClains day to die was evidence of consciousness of guilt because it was inconsistent with the possibility that the stabbing was an accident. The question about calling the police, if defendant was the one who asked it, obviously reflected a consciousness that a crime had been committed. There was no error in giving the instruction.

3. Cumulative error

Defendant argues that even if the alleged errors in refusing the imperfect self-defense instruction and giving the flight instruction were not individually reversible, their synergistic effect was prejudicial. There was no error in giving the flight instruction, and any possible error in refusing the imperfect self-defense instruction was not prejudicial given the jurys special findings. Therefore there could be no synergistic effect.

B. Multiple Conviction

Defendant contends he could not be convicted of both attempted murder in count 1 and assault with a deadly weapon in count 2 because these two counts were alternate theories of guilt for the same act, i.e., the stabbing. Defendant made this argument in the trial court, and the court rejected it, stating that in its opinion defendant could be convicted of both crimes, though under section 654 he could be punished for only one.^[2]

The court was correct. Section 954 provides in relevant part that an accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and the defendant may be convicted of any number of the offenses charged . . . .

The California Supreme Court recently stated that in enacting section 954, the Legislature made clear that a defendant may be convicted of more than one offense even if they arise out of the same act or course of conduct. [Citation.] (People v. Reed (2006) 38 Cal.4th 1224, 1230 (Reed), italics added.) Therefore, in general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. (Id. at p. 1226.) Thus, defendants claim that he could not be convicted of both attempted murder and assault with a knife because they were based on the same act is foreclosed by section 954.

There is a judicially recognized exception to section 954s rule permitting multiple conviction for a single act. That exception prohibits multiple convictions based on necessarily included offenses. [Citation.] (Reed, supra, 38 Cal.4th at p. 1227; see also People v. Pearson (1986) 42 Cal.3d 351, 355.) Here, however, defendant says he is not suggesting count 2 was a lesser included offense of count 1, but rather that the People alleged the two offenses as alternative theories of guilt for one act. In that case, there is no applicable exception to section 954, and, as Reed holds, the statute permits multiple conviction regardless that counts 1 and 2 were based on a single act.

Even if defendant did seek to invoke the exception for lesser included offenses, it would not support his position. Ordinarily, one offense may be necessarily included in another under either of two tests. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.] (Reed, supra, 38 Cal.4th at pp. 1227-1228.)

Defendant notes that the California Supreme Court is currently reviewing the following question: For purposes of the ban on conviction of necessarily included offenses (see People v. Pearson[, supra,] 42 Cal.3d 351), should enhancement allegations be considered in determining when a lesser offense is necessarily included in a charged offense as pled in the information or indictment? (People v. Sloan, review granted June 8, 2005, S132605, Supreme Ct. Mins., June 8, 2005; see also People v. Izaguirre, review granted June 8, 2005, S132980.) If the court were to hold enhancements should be considered, it would require reversal here since the weapon use enhancement allegations would make count 2 a lesser included offense of count 1, prohibiting conviction for both.

However, the issue posed in Sloan would appear to have been effectively settled by Reed. If, as Reed holds, a court cannot consider how a crime is pled in the accusatory pleading in determining whether the crime is an included offense for purposes of multiple conviction, then the issue of whether an offense is included in another as pled in the information or indictment should not arise. At any rate, as we find Reed controlling we simply rely on that decision pending further guidance from the Supreme Court in Sloan.

C. Exclusion of Evidence of Williams Motive for Testifying

During his cross-examination of prosecution witness William S., defense counsel advised the court that he understood William had juvenile matters pending against him. From speaking with Williams juvenile court counsel, defense counsel understood the matters involved first degree burglary, possession of stolen property, possession of a weapon on a school campus, and battery. Defense counsel wanted to ask William whether he was hoping for some sort of preferential treatment as a result of his testimony in this case.

The court held a hearing pursuant to Evidence Code section 402, at which Williams counsel in the juvenile matters appeared on his behalf. At the hearing, William testified he had juvenile matters pending against him that were set for trial, and he was hoping that by testifying in defendants case he might get a better deal or better treatment from the district attorneys office in the juvenile matters. However, William confirmed that the prosecutor in defendants trial had not promised him anything. He also confirmed that his counsel had told him the district attorney was not offering him anything for his testimony in defendants trial.

Williams counsel objected to the proposed examination, arguing that since clearly nothing had been represented to William regarding the juvenile charges, any hope on his part for lenient treatment would be speculating, and the probative value of disclosing the charges in court would be minimal. The court sustained the objection. Defendant contends the court not only abused its discretion but also violated the confrontation clause.

There was no abuse of discretion, and no confrontation clause violation. The Supreme Courts decision in People v. Brown (2003) 31 Cal.4th 518 is directly on point.^[3]

In Brown,defense counsel wanted to ask a prosecution witness, a juvenile, whether he expected some benefit in his juvenile rape case as a result of his favorable testimony for the prosecution in defendants case. (People v. Brown, supra, 31 Cal.4th at p. 543.) The prosecutor stated he had offered nothing to the juvenile in the rape case in return for his testimony. The juvenile confirmed that no one told him his testimony would benefit him in his rape case and stated he did not expect to get a benefit from testifying. (Id. at pp 543-544.) Defense counsel argued, however, that the juvenile might subjectively believe he would benefit in his rape case if he cooperated and testified against defendant. (Id. at p. 543.)

The Supreme Court affirmed the trial courts exclusion of any reference to the rape case. The court held that the trial court did not abuse its discretion in concluding that, under Evidence Code section 352, any slight impeachment effect of the remote possibility the witness was testifying in hopes of leniency was outweighed by the undue consumption of time such questioning would entail. This routine application of state evidentiary law does not implicate defendants constitutional rights. (People v. Brown, supra, 31 Cal.4th at p. 545, fn. omitted.)

The Supreme Court further held that any error was harmless beyond a reasonable doubt. [Citations.] (People v. Brown, supra, 31 Cal.4th at p. 546.) The juveniles testimony was largely consistent with that of other witnesses, and there was other evidence of the defendants guilt as well. (Ibid.)

Brown refutes defendants claim of reversible error. Like the juvenile in Brown, William had been promised nothing in his juvenile matters. Though he hoped for some benefit, he acknowledged that his counsel had told him he had not been offered anything. As Williams counsel stated, his subjective hope was purely speculative and did not amount to an expectation. Thus, like the juvenile in Brown, William did not expect any benefit, and the probative value of asking him whether he hoped for leniency was insignificant.

Further, as in Brown, the juvenile charges against William had not been adjudicated. If defense counsel had been allowed to ask William whether he hoped for leniency on the charges, the prosecutor could have sought to rehabilitate him by showing that the charges were unfounded or likely to be dismissed. This might well have required calling at least one additional witness, Williams juvenile court counsel, and possibly also the percipient witnesses from the juvenile cases. The court reasonably could conclude the possibility of undue time consumption outweighed the probative value of the proposed examination.

Moreover, a confrontation clause violation occurs where a reasonable jury might have received a significantly different impression of a witnesss credibility had defense counsel been permitted to pursue the proposed line of cross-examination. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) Whether or not the jury learned of Williams juvenile charges, they knew William was an associate of McClains and that the two had committed a robbery together about a week after the stabbing. They could hardly have believed William did not care whether defendant was convicted for stabbing McClain. Disclosure of the pending juvenile charges would not have made William significantly less credible.

Finally, as in Brown, any error was harmless under any harmless-error standard. Williams testimony was not materially more helpful to the prosecution than Joshuas. Both William and Joshua identified defendant as the stabber, as did McClain at the hospital. Joshua, not William, testified that defendant said, Todays your day to die after the stabbing and that defendant and Jimmy ran from the scene.

D. Admission of Testimonial Hearsay

Defendants final contention is that the testimony of gang expert Bloomfield violated defendants right of confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). As defendant notes, Bloomfield relied in part on information he obtained from other sources who were neither called as witnesses at trial nor subject to cross-examination before trial. Defendant acknowledges his trial counsel did not object to Bloomfields testimony on confrontation grounds but argues that if this waived the issue, counsel was ineffective. We consider the claim of Crawford error on the merits but find that even assuming any error occurred, it was harmless.

1. Gang charges

Defendant was charged in counts 1 and 2, attempted murder and assault with a deadly weapon, with gang enhancements pursuant to section 186.22, subdivision (b). That provision imposes increased punishment on any person who is convicted of a felony committed 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 . . . .

In addition, count 3 charged defendant with violating section 186.22, subdivision (a). That provision punishes anyone who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . .

Since it was stipulated that CVL was a criminal street gang, the remaining facts the People had to prove were that defendants offenses were committed for the benefit of or in association with the gang, with the specific intent to further criminal conduct by gang members, and that defendant actively participated in and promoted CVL with knowledge of its activities.

2. Bloomfields reliance on hearsay sources

Bloomfield had been a Corona gang unit detective since October 2003 and had received about 350 hours of formal training regarding gangs. Informally, he had spoken with more than 50 CVL members, including defendant. However, he did not recall discussing with defendant his gang membership.

Instead, Bloomfield testified he knew defendant was a CVL member from [t]alking with officers and talking with the defendant before, and also reviewing reports, F.I. [field interview] cards. He based his opinion that defendant was an active CVL member on [t]he documentation that we have. Conversations with Jimmy, and also admissions that he made at the time of booking.

3. Crawford

In Crawford, the United States Supreme Court held that the Sixth Amendment right of confrontation prohibits the use of testimonial hearsay to convict a criminal defendant unless the hearsay declarant is unavailable as a witness and the defendant has had a prior opportunity to cross-examine the declarant. The court declined to formulate a comprehensive definition of testimonial but held that the term at least applies to, among other things, hearsay statements made in response to police interrogations. (Crawford, supra, 541 U.S. at p. 68.) In a later decision, however, the court said that statements to police are nontestimonial where the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency, but they are testimonial where there is no emergency, and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Davis v. Washington (2006) ___ U.S. ___, ___ [126 S.Ct. 2266, 2273-2274], fn. omitted.)

Here, defendant argues that statements of gang members or other people in the community during conversations with police officers necessarily were testimonial. He asserts that the officers who participated in the conversations did so for the purpose of obtaining information that they or other officers could use in future prosecutions of gang members, just as Bloomfield did in this case. Therefore, Bloomfields reliance on those statements, or documents memorializing them or prepared based on them, made his testimony inadmissible under Crawford.

4. Thomas

After Crawford but before Davis,this court held in People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas) that under Crawford a gang expert may give opinion testimony that is based upon hearsay, including conversations with gang members as well as with the defendant. [Citations.] Such opinions may also be based upon . . . information about gangs learned from the experts colleagues or from other law enforcement agencies. [Citations.] (Thomas, at p. 1210.)

The Thomas court held there was no Crawford violation in admitting hearsay-based expert testimony because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the experts opinion. (Thomas, supra, 130 Cal.App.4th at p. 1210, citing Crawford, supra, 541 U.S. at p. 59, fn. 9 [confrontation clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted].)

Defendant acknowledges Thomas but argues it was wrongly decided; however, we find this courts decision in Thomas to be dispositive. Even if one were to assume for the sake of argument that Thomas was not dispositive, however, the prosecution presented compelling nonhearsay evidence to prove defendant was a CVL member and that he acted with the intent to further the gangs criminal activities. That evidence consisted of:

(1) Firsthand testimony of William and Joshua that defendant flashed CVL hand signs just before the stabbing.

(2) Firsthand testimony of Deputy Byrd, the classification officer at the jail, that when defendant was booked into jail, he described himself to the officer as a member of Fourth Street Gang in Corona. Defendants statement was not inadmissible hearsay, because it was an admission of a party made admissible by Evidence Code section 1220: Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . . An admission of a party opponent is not made inadmissible by Crawford. (United States v. Tolliver (2006) 454 F.3d 660, 665.)

(3) Firsthand testimony of Bloomfield that he personally searched defendants residence and saw the gang items found there.

(4) Firsthand testimony of Bloomfield that he personally saw CVL graffiti on the fence at defendants residence.

(5) Firsthand testimony of Bloomfield that he had spoken personally with defendant and had observed that defendant had a tattoo of a crown on his arm. Bloomfield knew from his experience that the crown meant Crown Town, i.e., Corona, and that Crown Town was one of the names CVL used.

(6) Firsthand testimony of Bloomfield that defendant had a large tattoo of an Aztec warrior on his arm. Bloomfield knew from experience that the Aztec motif was used by Hispanic criminal street gang members located in southern California, because they viewed themselves as warriors for the Hispanic or Mexican race.

(7) Firsthand testimony of Bloomfield that a photo found in defendants house showed defendant displaying a CVL hand sign.

(8) Firsthand testimony of Bloomfield that he personally saw defendant at the preliminary hearing wearing slippers with CT, for Crown Town, and 4 S-T, for Fourth Street, carved into them. Bloomfield testified that wearing the slippers means that person . . . definitely, especially showing up in court, is down for Corona or CVL.

(9) Expert testimony by Bloomfield that the stabbing of McClain benefited CVL because you have an outside gang member, an outside black gang member on top of that, living inside the Country Hills Apartments, walking around. The suspect in this case Miguel Castaneda displays hand signs saying, Hey, this is our territory. Darrell doesnt back down. He goes to find out, Hey, whats going on? And when that happens, Miguel takes and stabs him in the left side, and then walks away. According to Bloomfield, the stabbing showed that CVL is taking care of business in this apartment complex.

All of this testimony, except item (9), consisted of witnesses describing what they had personally seen or heard. Item (9) was Bloomfields opinion, but it was adequately supported by nonhearsay testimony of witnesses at trial -- McClain testified he was a member of an outside African-American gang; William and Joshua testified to the hand signs and the stabbing; and McClain and Arkliss also testified to the stabbing.

The United States Supreme Court has stated that a confrontation clause error is not reversible if a reviewing court can say the error was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.) An error is harmless beyond a reasonable doubt if there is no reasonable possibility that the error contributed to the conviction.  (Strickler v. Greene (1999) 527 U.S. 263, 299; People v. Ochoa (1998) 19 Cal.4th 353, 479.) 

When a defendant has been denied his right to confront a witness, whether the error is harmless beyond a reasonable doubt depends upon such factors as the importance of the witness testimony in the prosecutions case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecutions case. [Citations.] (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)

Here, defendant was not denied the right to confront Bloomfield, but only the right to confront the hearsay declarants on which some of his testimony was based. As we have shown, Bloomfields testimony was independently supported by nonhearsay testimony of others and by Bloomfields own direct observations. There is no reasonable possibility under these circumstances that Bloomfields partial reliance on hearsay evidence contributed to defendants conviction. Any violation of defendants confrontation right was harmless beyond a reasonable doubt.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

KING

J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified. We cite the version of the statute in effect at the time of the offenses or the trial, as appropriate.

^[2] At sentencing, the court stayed the term on count 2, pursuant to section 654.

^[3] Neither party cites Brown.