California Court of Appeals, Second District, Eighth Division
CERTIFIED FOR PARTIAL PUBLICATION[*]
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA 368836, William N. Sterling, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Valadez.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant for Frank Uribe.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell, Thomas C. Hsieh and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
Appellants Frank Uribe and Daniel Valadez challenge their convictions for conspiring to commit the crimes of shooting from a vehicle and assault with a semiautomatic firearm and for possession of a firearm by a felon, along with gang and other enhancements. They raise a host of alleged errors, both together and individually. In the published portion of this opinion, we reject their evidentiary and confrontation clause challenges to the prosecution’s gang expert witness. In the unpublished portion, we find no prejudicial error on any other ground. We affirm. We modify the judgment to reflect additional presentence credits as provided herein.
Appellants were charged with conspiracy to commit the crimes of shooting from a vehicle and assault with a semiautomatic firearm (Pen. Code, §§ 182, subd. (a)(1), 245, subd. (b), 12034, subd. (c) [repealed eff. Jan. 1, 2012, and reenacted as § 26100 without substantive change]),  and being felons in possession of a firearm (§ 12021, subd. (a)(1) [repealed eff. Jan. 1, 2012, and reenacted as § 29800, subd. (a)(1) without substantive change]). It was alleged that the acts were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(B)). It was also alleged as part of count 1 that Valadez was armed with a firearm (§ 12022, subd. (a)(1)), and as part of counts 1 and 2 that he had incurred a prior serious or violent felony “strike” conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)).
Appellants stipulated to their prior felony convictions and following trial, a jury convicted appellants as charged and found the firearm and gang allegations true. Valadez was sentenced to a state prison term of 23 years on count 1 and his sentence on count 2 was stayed, and Uribe was sentenced to a state prison term of 14 years on count 1 and his sentence on count 3 was stayed. In addition to imposing various fines and fees, the court granted each appellant 852 days of presentence custody credit, which consisted of 742 actual days and 110 days of conduct credit. Both appellants timely appealed.
STATEMENT OF FACTS
1. Prosecution Evidence
Around 1:50 a.m. on March 6, 2010, Los Angeles Police Department (LAPD) Officers Richard Wilson and Peter Bueno were heading east on Ithaca Avenue in El Sereno while on patrol. They each saw a white vehicle on Ithaca Avenue with its lights off, driving “extremely slow, ” about five miles per hour in their direction. There were no other people or traffic in sight. The officers each shined a spotlight on the car and saw Uribe in the driver’s seat and Valadez in the front passenger seat wearing green bandanas covering the lower portion of their faces, which they pulled down as the officers drove by.
The car accelerated as it passed the officers and Wilson drove in reverse down Ithaca Avenue to follow it. It turned down Belleglade Avenue, and Wilson completed a three-point turn and pursued it. It came to a rolling stop at Alhambra and Belleglade Avenues, at which point the officers saw Valadez, the front passenger, throw a black or blue steel handgun out the passenger window. After that, the officers saw furtive movements in the car. The car turned onto Alhambra Avenue, where the officers conducted a traffic stop near Valley Boulevard and requested a backup unit.
After additional officers arrived and took appellants into custody, Officer Lowe drove Officer Bueno back to Alhambra and Belleglade Avenues, where Officer Lowe recovered a black semiautomatic pistol from where Officer Bueno had seen the gun tossed from the car. It was fully loaded with 16 rounds; it was not registered to either appellant and no usable fingerprints were recovered from it. After a search, three bandanas were recovered from the car: a green bandana from under the driver’s seat; and one green and one blue bandana from under the front passenger seat.
Officers ran the car’s license plate and learned it had possibly been carjacked in West Covina, although Officer Wilson did not intend to arrest appellants only for carjacking. West Covina officers briefly took custody of appellants, but no carjacking or car theft charges were filed.
In the transcript of the radio transmission between Officer Bueno and dispatch, there was no mention at any time of a gun being tossed from appellants’ car. Officer Bueno testified it would have been important information to broadcast when reasonable and safe to do so, but at the time he did not share that information because he wanted to keep eyes on appellants, who were making furtive movements and possibly reaching for another weapon. The reports prepared by Officers Bueno and Wilson also did not state appellants were driving slowly with headlights off. Neither officer recalled Officer Lowe being on the radio that night or calling him on his cell phone before he arrived on the scene.
The prosecution called Officer Allan Krish as a gang expert witness, who testified appellants were members of a gang called “Lowell Street, ” which split from a larger gang called “El Sereno” in the 1980’s. Krish had been an officer for six and a half years and had been assigned to a gang enforcement division from March 2009 to January 2011. Part of that position was to keep up to date on gang activities in the Hollenbeck division by gathering intelligence on gangs in the area; identifying and photographing gang members; tracking gang members and their activities; working with parole and probation officers and gang detectives; conducting probation, parole, and compliance searches on gang members; and investigating gang-related crimes. Officer Krish had approximately 40 hours of training at the Los Angeles Police Academy on gang awareness, including gang terminology, culture, dress, and behavior. He also attended a four-day training held by the California Gang Investigators’ Association in late 2009. And he had contact with gang members on a daily basis, which could be “nothing more than [a] casual conversation, ” during which he would ask them if they’d be willing to talk and if they agreed, he would speak with them. He explained the importance of these interactions: “As a gang officer, when you are assigned to monitor a specific gang or area, you get a lot of information by just talking to gang members if they’re willing to talk to you and get to know who belongs in that area, who doesn’t belong in their area, what’s going on with the gang.” He also spoke with gang members while on patrol and in arrest-like situations. He spoke with other officers, gang experts, and gang detectives, and read online articles.
c ways in which someone would enter a gang: by being “jumped in” or beaten; by being “courted in” or having a family member already part of the gang; or by completing a “mission, ” which could be anything from graffiti to murder. Once part of the gang, a member must still prove loyalty to the gang by “putting in work, ” or by doing things to benefit, promote, and earn respect for the gang and to establish fear in the community.
Officer Krish had testified numerous times as a gang expert witness on gangs in the Hollenbeck area, including El Sereno, Lowell Street, and Rose Hills gangs. With regard to El Sereno and Lowell Street, Officer Krish learned the history and inner workings of the gangs from gang experts and gang detectives, some with 30 years of experience on the job, by reading “verbiage and literature” from department resources, and by talking with gang members to confirm the information he knew. He explained El Sereno was started in the 1960’s, taking the name from the El Sereno community it claimed, and its purpose was to protect the area from outside gangs. At the time of trial, it had 360 to 400 predominantly Hispanic members. El Sereno also had “cliques” based on neighborhoods, including the Ithaca Avenue clique and the Guardia Street clique with territory in the area around Ithaca and Belleglade Avenues.
Lowell Street was started after an internal conflict within the El Sereno gang in the mid- to late-1980’s over narcotics distribution and who would pay “taxes” for criminal activities. It took its named from the Lowell Avenue area it controlled, bordered by the City of South Pasadena to the north, Stillwell Avenue to the west, Huntington Drive to the south, and the City of Alhambra to the east. At the time of trial, Lowell Street had 34 documented members, a fact Officer Krish learned from department resources. Officer Krish initially testified he had personally met three or four of them and learned none still lived in the area from speaking to them, from speaking to El Sereno gang members, and from the fact that he also had not had contact with Lowell Street members in that area. On cross-examination after speaking with another officer, he testified he could not say for sure whether any members still lived there because they would not be visible in the area due to their “green-light” status (discussed below).
When Lowell Street split from El Sereno, a “green light” on the Lowell Street members was established by the Mexican Mafia, a Hispanic prison gang, for the failure to pay taxes. The “green light” was an order giving permission to jump, assault, or kill any member of a gang without repercussions, a fact Officer Krish learned from tenured detectives, Internet research, and El Sereno and Lowell Street gang members. Also by speaking with tenured detectives, Officer Krish knew the Mexican Mafia prohibited driveby shootings, but that rule did not apply to green-lighted gang members. El Sereno, which was also known as Locke Street, was Lowell Street’s main rival.
Officer Krish learned the primary activities of Lowell Street are assault with a deadly weapon; attempted murder; trafficking in methamphetamine, cocaine, and marijuana; weapons-related crimes; and robbery. He did not know the identity of the gang’s leader or others in command. But he knew the Lowell Street gang has one hand signal (an “L” shape with the index finger and thumb), shows pride in the color green due to their green-light status, and often “tags” and tattoos the number 12 to signal “L” as the 12th letter of the alphabet. He also took a photograph in December 2009 of graffiti by the Guardia Street clique on a retaining wall within 200 yards of Lowell Street territory that had been crossed out in orange paint and the letters “LSL” written over them, which stood for Lowell Street Locos. He believed it signaled Lowell Street was active in the area because he patrolled the area all the time, and the graffiti had not been there previously. Lowell Street members would also frequently come back to the area to hang out.
Although Officer Krish had not personally investigated any crimes associated with Lowell Street and did not have personal contact with either appellant, he opined appellants were members of the Lowell Street gang based upon field interview cards, the facts of the incidents at issue, conversations with other officers, and numerous tattoos displayed on appellants’ bodies related to the Lowell Street gang. Given a “hypothetical” set of facts based on the circumstances of this case, Officer Krish opined individuals under these circumstances would have been riding in the car with the gun “for the benefit of, at the direction of, or in association with a criminal street gang”: they acted in association with a gang because they were two gang members acting together; and they acted for the benefit of the gang because their actions instilled fear in the community and prevented individuals from calling the police. He opined these facts demonstrated “these two gang members” had committed or were about to commit a violent criminal act.
He testified gang members would know gang territories based on conversations with other gang members and from graffiti, and a Lowell Street gang member would know he was in rival territory on Ithaca Avenue where the incident occurred. He stated this activity would enhance the reputation of the Lowell Street gang if there were a general opinion on the street that Lowell Street did not exist anymore, showing Lowell Street was “strong and willing to roll into rival territory.” That was true even if no pedestrians or vehicle traffic were present at the time because gang members will still talk about it; a Lowell Street gang member “[w]ill not drive through that area knowing it’s not theirs, with bandanas on their face and a loaded gun in the car at five miles an hour and hope that nobody ever finds out. They’re there for, like I said, one reason. And they bank on the fact that the community is going to be in fear and rival gang members are going to know that Lowell Street is alive and well.” In response to another hypothetical, he stated a person in a gang would still be a gang member, even if he or she moved away from the area, got a bachelor’s degree, went to law school and became a lawyer, and returned to the neighborhood to play basketball and drink beers with other gang members.
Officer Krish also testified an individual named Michael Adame, whom he believed to be a Lowell Street gang member, had been convicted of narcotics trafficking in 2009. Although there was no gang allegation in the case and nothing in the police reports indicating Adame was a gang member, Officer Krish based his opinion on field interview cards, speaking with other gang members and gang officers, and a “Lowell” tattoo on Adame’s back. He also discussed a specific past incident between the Lowell Street and El Sereno gangs in Alhambra in April 2010 during which three Lowell Street gang members stabbed an El Sereno gang member 12 times. One of the Lowell Street gang members stated during an interview that, “two or three years prior, this individual was involved in a drive-by shooting on Lowell Street and this was their payback.”
Parole Agent Daniel Lopez testified he supervised Valadez from November 2009 until he was arrested. He explained that, typically, parolees are assigned to their last legal residence or area where they committed their last crime, and were usually paroled to immediate family members. But Valadez’s case was transferred from Los Angeles County to San Bernardino County because of special circumstances regarding potential threats to appellant’s life and well-being. Valadez had mentioned to Lopez that “some people” were visiting his father and he felt it was a threatening environment. Lopez told him it was not wise for Valadez to be in that environment and that was why San Bernardino County accepted his transfer. At that time, Lopez discussed Valadez’s green-light status with him and informed him as a condition of parole he was not to associate with fellow gang members. Lopez also told him he could not travel outside San Bernardino County without permission. On one occasion, Lopez gave him permission to attend a birthday celebration for a family member, and Valadez took the trip without issue. Lopez had not given him permission to leave the county on March 6, 2010, the day of the incident.
Over objection, the trial court admitted the first two pages of a “general chrono, ” which was a document in Valadez’s Department of Corrections file. It showed Valadez’s “residence plan” for parole as first for “Luis Valadez” in Los Angeles, and second for “Virginia Marquez” in Upland, in San Bernardino County. It also contained a statement from Parole Officer J. Ward reciting a statement from Valadez: “On November 18, 2009, inmate Valadez was interviewed due to his safety concern. He stated it would not be safety well, safety [sic] for him to parole to his father’s address due to the Mexican Mafia having a green light on him. They have been asking his father about when he would be getting out of prison. Because of his gang status regarding the Lowell Street gang, he feels that change in his parole address to Upland would keep his family as well as himself safe from harm.”
2. Uribe’s Defense Evidence
Uribe did not testify. Paul Kim, a retired LAPD commander, testified on behalf of Uribe that a police report is an important document and should be as accurate as possible. If, for example, officers pulled a car over for driving at night without headlights, that should be noted in the police report or provided in a supplemental report. He reviewed the police frequency transmissions in this case and did not find any transmission to or from Officer Lowe’s unit, and it would have been out of police policy not to call in when providing backup. Likewise, no officers broadcast that a gun was thrown out of appellants’ car, and if an officer had seen that, the proper procedure would have been to broadcast that fact so responding units can go to that location. He could not think of a legitimate reason not to broadcast that information when two officers are in the unit, other than an officer is injured and unable to call it in.
Uribe also called former gang member and current California Attorney Humberto Guizar as a gang expert. He testified he was not sure the Lowell Street gang still existed and, although former members might come back to the area to visit, they were not engaged in gang activity. The last time he spoke with an active Lowell Street gang member was when Guizar himself was still a gang member 30 years ago. He testified Uribe was not a gang member because he was in his 30’s, he had six children, and there was no evidence Uribe had done any gang graffiti or gang signs. He also did not believe Uribe was committing a gang crime when he was arrested because he had never heard of a gang member committing a “hit” while wearing a bandana over his face. He had also never heard Lowell Street had been given a green light. Regarding gang tattoos, he testified current tattoos do not necessarily signal active gang membership and there was a year-and-a-half waiting list for one tattoo removal program and other removal methods could be expensive.
Saul Romero, a “close personal friend” of Uribe, testified that he and Uribe’s brother Tony picked up appellant Valadez around 11:00 a.m. the day before his arrest and went to a beauty salon and then Yard House restaurant, where they stayed until around 9:30 or 10:00 p.m. After that, they went to Clancy’s in Covina; on the way they called Uribe to ask if he wanted to have drinks for Valadez’s birthday, and he eventually met them there. Around 2:00 a.m., Romero and Tony left together, and Uribe said he was going to give Valadez a ride home to his father’s house.
LAPD Detective Hector Salas testified he took custody of Uribe after the West Covina Police Department cleared appellants of charges, at which point the LAPD “re-arrested” them on March 8, 2010.
3. Valadez’s Defense Evidence
Valadez did not testify. He called Daniel Laughlin, a gang expert with 17 years experience, who testified the Lowell Street gang was small, with 25 to 30 members, and it had been inactive for the last nine or 10 years. He also testified most inactive gang members did not remove their gang tattoos and free tattoo removal programs had long waiting lists. He testified Lowell Street was part of El Sereno but it refused to pay taxes in the 1980’s, which was related to their “green light” status. He knew a Lowell Street gang member had been shot and killed three years before trial, but he did not know who had shot him. He testified former gang members are not still gang “banging” in their 30’s.
Reuben Lara testified he lived on Ithaca Avenue in El Sereno for 20 years and had seen some graffiti, had occasionally heard gunshots, including a shooting in December 2009 or January 2010, and had seen some “cholos” in the neighborhood, but he had never heard of Lowell Street as a gang. He had never seen either appellant.
Denise Valadez, Valadez’s wife whom he had known for five years and married on July 2, 2010, when he was in custody, testified she and Valadez would visit Valadez’s father Luis Valadez in El Sereno about every other week, and she would never travel on Ithaca Avenue to get there. Valadez did not work the day before his arrest and his friends picked him up to go to his father’s house to help him clean the yard. His birthday had been March 1, and he was going to celebrate with his friends afterward.
Valadez’s father, Luis, testified he spoke with Valadez a few days prior to his arrest, and expected Valadez to come to his house that night to help clean. He lived in El Sereno for 44 years and did not see any gang activity on his block. He testified no one had ever come to his house looking for Valadez and he did not know Valadez was a member of the Lowell Street gang, but said Valadez was associated with the gang when he was a teenager. He never saw appellant engage in gang activity and never talked to Valadez about gangs.
4. Rebuttal Evidence
The prosecution recalled Detective Salas, who testified booking approval documents reflected appellants were booked for conspiracy to commit assault with a firearm. The prosecution also called LAPD dispatcher and records custodian Jed Fernandez, who generally ...