California Court of Appeal, Fourth District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Appeal from a judgment of the Superior Court of
Orange County, Steven D. Bromberg, Judge. Reversed in part, affirmed in part.
(Super. Ct. No. 11CF2839)
[Copyrighted Material Omitted]
John L. Dodd, Tustin,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan [167 Cal.Rptr.3d 12] Miller, Deputy Attorneys General, for Plaintiff and Respondent.
MOORE, ACTING P.J.
A jury convicted defendant Marcos Arturo Sanchez of possession of a firearm by a felon (former Pen.Code, § 12021, subd. (a)(1), repealed by Stats.2010, ch. 711, § 4;  all statutory references are to the Penal Code unless otherwise stated), possession of a controlled substance while armed with a loaded firearm (Health & Saf.Code, § 11370.1, subd. (a)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found true a gang enhancement allegation (§ 186.22, subd. (b)(1)) in connection with the first two charges. The trial court bifurcated the trial on the state prison allegation (§ 667.5, subd. (b)). After the jury returned its verdict, defendant admitted he served a prior term in state prison. The court sentenced defendant to seven years in state prison. The sentence consisted of a three-year term on the Health and Safety Code violation, plus a consecutive three-year term on the gang enhancement attached to that count, and a one-year term on the state prison enhancement. The court imposed concurrent terms on the remaining counts and gang enhancement.
Defendant contends the evidence is insufficient to sustain the substantive gang crime and the gang enhancements. We accept the Attorney General's
concession that defendant's conviction for active gang participation must be reversed because defendant acted alone in that matter ( People v. Rodriguez (2012) 55 Cal.4th 1125, 150 Cal.Rptr.3d 533, 290 P.3d 1143), and reverse that conviction. We reject defendant's argument that the gang enhancements must also be reversed because he acted alone.
We publish this decision because defendant claims statements allegedly made and placed in STEP notices, field identification cards (FI cards), and a police report and testified to by the gang expert were improperly admitted into evidence for three reasons: the statements are inadmissible hearsay; the evidence was more prejudicial than probative (Evid.Code, § 352); and the evidence violated his right to confront and cross-examine witnesses, given the fact that the statements were made to officers who did not testify and who had not previously been cross-examined. We reject each of these arguments.
Santa Ana Police Officer Adrian Capacete and his partner Officer Vergara  were on uniformed patrol in a marked patrol car in the area of the 1800 block of South Cedar Street in Santa Ana on October 16, 2011, at approximately 5:15 p.m. Capacete knew drugs sales frequently take place in that area. Capacete saw defendant sitting on an apartment building staircase leading to an upstairs apartment, apartment D. Defendant's head was shaved and he wore baggy clothes. Capacete made eye contact with defendant and Vergara stopped the patrol car. Both officers got out of the car to make contact with defendant.
Defendant reached into an electrical box against the wall, made a grabbing motion with his left hand, and ran up the stairs, holding his waistband with his right hand. [167 Cal.Rptr.3d 13] He ran past a woman holding a baby. She looked frightened. Defendant then ran into apartment D. As the officers ran up the stairs after defendant, the woman told Capacete defendant did not live in apartment D and there were children inside the apartment.
The officers went to the front door of apartment D. Capacete could see into the apartment through the mesh security door. He heard children begin to cry. Capacete saw defendant five to 10 feet in front of a hallway inside the apartment. With guns drawn, but still outside the security door, Vergara ordered defendant to the ground.
Jesus R., a young boy, was inside the apartment when he heard the door open, saw a man he did not know run to the bathroom, and heard the bathroom door close. After the man came out of the bathroom, the police entered and had the man on the ground. Jesus's mother heard a loud noise, exited her bedroom, and saw Vergara pointing his gun at the intruder she had never seen before.
The officers searched defendant and the apartment, but did not find any drugs or firearms. However, upon looking out the open bathroom window, Capacete saw a gun and a plastic baggie on top of a blue tarp six to eight feet below the window. There was debris on the tarp, but none on top of the gun or the plastic baggie.
Baudencio Castillo lived below apartment D. The blue tarp covered his patio. He has never possessed a gun and he did not give anyone permission to place any items on his tarp. Castillo gave police permission to retrieve items from the tarp. He said he has seen defendant in the neighborhood.
The plastic baggie retrieved by police contained 14 plastic bindles and four smaller Ziploc baggies. The bindles contained useable amounts of heroin and the Ziploc baggies contained useable amounts of methamphetamine. Capacete said the drugs were packaged for sale. The gun was loaded, cocked, and ready to be fired.
David Stow is a gang detective with the Santa Ana Police Department and has testified as a gang expert over 200 times. He is familiar with the Delhi gang and has spoken with hundreds of Delhi gang members over the years. The 1800 block of South Cedar is within the territory claimed by Delhi. As of the date of the charged incident, Delhi had more than 50 members. The gang's primary activities include drug sales and illegal possession of weapons. According to Stow, Delhi is a criminal street gang.
Stow discussed certain convictions by documented Dehli gang members. Jose Ochoa was convicted for possessing cocaine, methamphetamine, and marijuana for sale in 2010. Ochoa admitted he was participating in Dehli at the time he committed the offenses. Yvonne Rodriguez was convicted of possessing methamphetamine for sale and for actively participating in a criminal street gang— Delhi— in 2010. Stow said Ochoa and Rodriguez were Delhi gang members when they committed their respective offenses, and their convictions for possessing drugs for sale were examples of the primary activities of Delhi. Stow added that gangs control the sale of narcotics within their territory.
Stow said he is familiar with defendant and has reviewed his gang background. In June 2011, police served defendant with a STEP notice informing him that Delhi is a criminal street gang. A STEP notice is a two-part form. It notifies the individual that a particular group is a criminal street gang and that the gang has pattern of criminal activity. At the time he received the STEP notice, defendant said he has [167 Cal.Rptr.3d 14] " kicked it" with guys from Delhi for four years and has been arrested with Delhi members before. Stow said " kicked it" means defendant hangs out with and associates with Delhi gang members.
In August 2007, defendant was standing next to his cousin Jesus Rodriguez in territory claimed by Delhi, when Rodriguez was shot. Defendant admitted on that occasion Rodriguez " hung out" with Delhi gang members. In December 2007, defendant was contacted by police in the 1800 block of South Cedar. He and Mike Salinas, a longtime Delhi gang member, were riding bicycles when a car drove by and Salinas was shot. Salinas identified the shooter as a member of the Alley Boys criminal street gang, a rival of Delhi's.
In December 2009, police again contacted defendant in Delhi territory. This time he was with John Gomez, a known member of Delhi. A few days later, he was contacted in an attached garage in the same block. Defendant was with Fabian Ramirez, another known Delhi gang member, and police found a surveillance camera, Ziploc baggies, narcotics, and a firearm. Based on Stow's investigations of the Delhi criminal street gang, the events of October ...