California Court of Appeals, Fourth District, Second Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from the Superior Court of San Bernardino County, No. FVI802610 John M. Tomberlin, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Peter Quon, Jr., Angela Borzachillo, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Fred Edward Archuleta guilty as charged of possessing a controlled substance, methamphetamine, and active gang participation. (Health & Saf. Code, § 11377, subd. (a); Pen. Code, § 186.22, subd. (a).) Defendant was arrested on December 5, 2008, after law enforcement officers found him in his garage in possession of methamphetamine and in the company of a gang member who admitted he was selling methamphetamine. At trial, the prosecution’s gang expert testified defendant was a high-ranking member of and an active participant in the East Side Victoria (ESV) criminal street gang at the time of his arrest, and had been for a long time. The expert based his opinion in part on the testimonial hearsay statement of another ESV gang member, Fernando Perez. According to the expert, Perez “told investigators” that defendant directed the November 2008 robbery of a Victorville drug dealer by Perez and other ESV gang members. Perez apparently made the statement during a custodial police interrogation following his arrest for the November 2008 robbery and the provocative act murder of an ESV gang member who was shot and killed during the robbery. Defendant was not charged with the robbery or the murder.
In a 2011 decision in this case (Archuleta I), we rejected defendant’s claim that the admission of Perez’s testimonial hearsay statement as basis evidence to support the gang expert’s opinion violated defendant’s Sixth Amendment confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford). We followed a series of decisions by this and other appellate courts that the admission of out-of-court hearsay statements as basis evidence to support an expert’s opinion against a criminal defendant at trial does not violate the confrontation clause because the statements are not offered for their truth; they are offered for the distinct and permissible purpose of supporting the expert’s opinion. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210 [30 Cal.Rptr.3d 582]
[Fourth Dist., Div. Two] (Thomas); People v. Cooper (2007) 148 Cal.App.4th 731, 746-747 [56 Cal.Rptr.3d 6] (Cooper); People v. Ramirez (2007) 153 Cal.App.4th 1422, 1426-1427 [64 Cal.Rptr.3d 96] (Ramirez); People v. Sisneros (2009) 174 Cal.App.4th 142, 153-154 [94 Cal.Rptr.3d 98] (Sisneros).)
Defendant petitioned the state Supreme Court for review of Archuleta I, review was granted and deferred, and the matter was transferred to this court with directions to vacate our decision in Archuleta I and reconsider the cause in light of Williams v. Illinois (2012) 567 U.S. ___ [183 L.Ed.2d 89, 132 S.Ct. 2221] (Williams), People v. Lopez (2012) 55 Cal.4th 569 [147 Cal.Rptr.3d 559, 286 P.3d 469] (Lopez), People v. Dungo (2012) 55 Cal.4th 608 [147 Cal.Rptr.3d 527, 286 P.3d 442] (Dungo), and People v. Rutterschmidt (2012) 55 Cal.4th 650 [147 Cal.Rptr.3d 518, 286 P.3d 435] (Rutterschmidt). (Cal. Rules of Court, rules 8.512(d)(2), 8.528(d).) Nothing in any of these decisions affects our conclusion in Archuleta I that Perez’s out-of court statement that defendant directed the November 2008 robbery—made to investigators during a custodial interrogation—was testimonial “under any conceivable definition.” (Crawford, supra, 541 U.S. at pp. 51-52, 53, fn. 4.)
But five of the nine United States Supreme Court justices in Williams and six of the seven state Supreme Court justices in Dungo agreed that out-of-court testimonial statements—even when offered solely as basis evidence to support an expert’s opinion and not, purportedly, as substantive evidence of their truth—may nonetheless be offered for their truth and violate the confrontation clause. (Williams, supra, 567 U.S. at pp.
__ - __ [132 S.Ct. at pp. 2255-2264 (cone. opn. of Thomas, J.); id. at pp.__ -
__ [132 S.Ct. at pp. 2264-2277 (dis. opn. of Kagan, J., joined by Scalia, Ginsburg, and Sotomayor, JJ.); Dungo, supra, 55 Cal.4th at pp. 621-627 (cone. opn. of Werdegar, J., joined by Cantil-Sakauye, C.J., Baxter, and Chin, JJ.); Dungo, at pp. 633-649 (dis. opn. of Corrigan, J., joined by Liu, J.).) We believe that if either high court were to consider defendant’s confrontation claim today, a majority of the justices of each court would agree that Perez’s statement was effectively offered for its truth through the testimony of the gang expert and violated defendant’s Sixth Amendment right to confront and cross-examine Perez. The prosecution did not show that Perez was unavailable or that defendant had a prior opportunity to cross-examine him. (Crawford, supra, 541 U.S. at p. 59.) We therefore conclude that the use or admission of the statement violated Crawford.
As we further explain, however, the federal constitutional error was harmless beyond a reasonable doubt. The use of Perez’s testimonial hearsay statement for its truth, as basis evidence to support the gang expert’s opinion, could not have affected the verdict on the methamphetamine possession or the active gang participation charge. In the nonpublished portion of this
opinion, we explain why defendant’s other claims of error are without merit. We therefore affirm the judgment in its entirety.
I. FACTUAL BACKGROUND
A. The Circumstances of the Charged Offenses
Around 1:00 a.m. on December 5, 2008, San Bernardino County Sheriff’s Deputy Brian Roper and several other officers, including Detective Garth Goodell, a member of the department’s high desert regional gang team, went to defendant’s residence in Victorville looking for George Espinosa, a homicide suspect known as “Little Sleepy.” Around one week earlier, Deputy Roper received information from Natividad Ramirez that Espinosa could be at defendant’s residence.
After the deputies arrived at defendant’s residence, Detective Goodell stood next to the garage while Deputy Roper and another detective went to the front door. The garage door opened, and defendant and Ramirez were in the garage. Defendant was using a cellular telephone, and Ramirez dropped a bag of suspected methamphetamine on the garage floor. Espinosa was not found at the residence.
Deputy Roper searched Ramirez and found a plastic scale and a bag of suspected methamphetamine in his pockets. Detective Goodell searched defendant and found $100 cash in his left pants pocket and a bag of suspected methamphetamine wrapped around his right belt loop and tucked into his coin pocket. A vehicle parked in front of the residence had recently been reported stolen.
Detective Goodell collected the $100 cash, cellular telephone, plastic scale, and the two bags of suspected methamphetamine found on defendant and Ramirez, together with the third bag Ramirez dropped. The detective also found a fourth “empty” bag on the garage floor that appeared to contain methamphetamine residue, but he did not believe it had any evidentiary value and threw it away. Defendant was placed under arrest, but Ramirez was allowed to leave.
The three bags of suspected methamphetamine were later tested and determined to contain 2.92, 0.40, and 0.27 grams, respectively, of methamphetamine. Apparently, the bag containing the smallest amount of methamphetamine was the bag found on defendant.
Ramirez and defendant were originally charged in the same two-count information with simple possession of methamphetamine and active gang
participation. During jury selection at their joint trial, Ramirez pled guilty to both charges and admitted a prior strike conviction and four prison priors. He was later sentenced to five years four months in prison.
B. Expert Gang Testimony
San Bernardino County Sheriff’s Deputy Josh Conley testified as a gang expert for the prosecution. At the time of trial in May 2009, Deputy Conley had been a deputy sheriff for over seven years, first in Los Angeles County and later in San Bernardino County. He was trained in gang investigations and identifications, and had attended two “jail operations courses, ” which included additional instruction in gang “investigation, trends, identification....” He later attended an “advanced gang awareness course” and received “more informal” training in gang investigation, identification, tattoos, trends, activity, and prosecution while working in the West Valley Detention Center (the WVDC) in Rancho Cucamonga.
Deputy Conley had experienced many personal contacts with gang members while working in jails in Los Angeles and San Bernardino Counties. Before July 2005, he worked in the WVDC’s high security unit, which housed the “most violent and most reputed” gang members in San Bernardino County. He recalled that defendant was housed in the WVDC’s high security unit some time before July 2005 when the deputy was working in the WVDC.
In July 2005, Deputy Conley was assigned to the Victorville sheriff’s station. After completing a field training program and working on patrol for two years, he was assigned to the station’s gang enforcement detail. In that capacity, he performed parole compliance checks and contacted parole agents and gang members at parole offices. During the course of his seven-year career, he had spoken with over 1, 000 gang members and had documented over 300 gang members.
Eight criteria were used to “document” or identify a person as a gang member on a gang identification card: (1) the gang member’s “self-admission”; (2) “classification admit” (the gang member’s admission of his gang membership during a booking interview); (3) gang tattoos; (4) gang signs; (5) gang apparel; (6) “reliable source, ” for example, a confidential informant identifying the person as a gang member; (7) prison documentation; and (8) intercepting mail in a custodial facility with gang-related writing. At least two criteria were required to document a person as a gang member, with the exception of “classification admit” which was alone sufficient.
Not all gang members wear “gang specific” tattoos identifying their gang. The deputy had encountered persons who had been gang members for
decades who did not have tattoos identifying their “higher status” in the gang. It had recently become common for gang members not to get gang-related tattoos in order to prevent law enforcement officers from easily identifying them as gang members. The deputy kept currently informed on gangs and their activities through speaking with other investigators, professional associations, and “validation packets” prepared by California's Department of Corrections and Rehabilitation (CDCR) which documented persons as gang members.
Through his work at the Victorville station, Deputy Conley was familiar with a criminal street gang known as “East Side Victoria.” The gang had approximately 150 documented members and 50 associates, and generally claimed the east side of Victorville as its turf. The deputy had personally contacted between 40 and 50 ESV gang members. Various signs and symbols were associated with the gang, including “ESV, ” “VCG, ” “EVG, ” and “ESVR.” The gang’s principal activities included murder, attempted murder, assault with a deadly weapon, and drug sales. Between May 2006 and 2008, three of its documented members had committed felony “predicate offenses” listed in the California Street Terrorism Enforcement and Prevention Act. (§ 186.20 et seq.) Since 2007, an injunction had been in effect prohibiting ESV members from associating with each other in the area claimed by the gang, which was known as the “safety zone.” Gang members were subject to arrest for violating the injunction.
As a southern Hispanic gang, ESV was affiliated with and subordinate to the Mexican Mafia in the state prison system. The Mexican Mafia is a prison gang that controls all southern Hispanic gangs under the “Sureno umbrella.” In gang parlance, the Mexican Mafia “calls down the shots” or directs the criminal activities of its subordinate gang members who act as its “foot soldiers.” Subordinate gangs are required to “funnel up taxes” or pay a portion of the proceeds of their criminal activities to the Mexican Mafia, including drug sales, to remain in good standing. The failure to pay taxes could result in a gang member or an entire neighborhood being “green lighted” or targeted for retaliation.
Particular symbols indicate that a southern Hispanic gang is affiliated with the Mexican Mafia. These include the acronym SUR, the number 13, La Eme, and a kanpol symbol, which is two lines and three dots signifying the Mayan number 13. The acronym SUR stands for Southern United Raza, and “big homie” is a term normally used to denote a Mexican Mafia member.
A person can become a member of a southern Hispanic criminal street gang mainly in three ways: by “criming in” or putting in work for the gang, by being “jumped in” or beaten for 13 seconds, or by being “walked in, ”
which is usually reserved for members with older siblings in the gang. “Shot callers” for the gangs are usually over 30 years old and are looked up to as leaders by younger members. A person can also be “jumped out” or “crimed out” of a southern Hispanic gang just as they can be jumped in or crimed in. A member can also ask an older gang member or “veterano” to be allowed out of the gang. Mexican Mafia membership, by contrast, is “blood in, blood out.” In order to gain membership in the Mexican Mafia, a person has to “spill blood” or commit a violent assault, and the only way out of the Mexican Mafia is by death.
At the time of trial in May 2009, Deputy Conley was assigned to the Adelanto Detention Center (the ADC) in Adelanto where Ramirez was in custody. The deputy had personally completed a gang identification card documenting Ramirez as an ESV gang member. He told Ramirez he was documenting him as an ESV member, and Ramirez did not object or correct him. Ramirez had ESV and Mexican Mafia-related gang tattoos, including “ESV, ” “SUR”, “X3, ” and “3CE.”
Deputy Conley became involved in the investigation of the present case after he searched Ramirez’s property at the ADC and found a letter that defendant had written to Ramirez. In the letter, defendant discussed the charges against himself and Ramirez and wrote: “Just be sure that you don’t agree to anything without us agreeing on it, because the charges are... real... petty.”
Deputy Conley was familiar with defendant through his training, through speaking with other gang investigators, and through reviewing “documentation from CDC[R] and prior gang cards.” A “validation packet” from the CDCR “validated” or identified defendant as a Mexican Mafia associate at the beginning of 1989. The deputy explained that the CDCR’s “validation process” of labeling someone a gang member is a lengthy process that involves checking several sources of documentation or other proof. In addition, a 1993 gang identification card documented defendant as a member of the ESV.
A September 2004 “classification sheet” identified defendant as a member of “Vario Victoria Rifa, ” a clique of ESV, and indicated he was being housed in the high security unit. Defendant signed the 2004 classification sheet acknowledging his gang status. The document was placed on an overhead projector and published to the jury. Deputy Conley was familiar with an offense defendant committed on September 1, 2004, namely, attempted possession of a firearm by a felon. (§ 664; former § 12021 [repealed eff. Jan. 1, 2012, and reenacted as § 29800, subd. (a)(1) without substantive change].) The court took judicial notice of a court file concerning the offense.
A second classification sheet dated December 5, 2008, the date defendant was arrested on the current charges, indicated he was a member of the Vario Victoria Rifa and the Mexican Mafia. Defendant signed the 2008 classification sheet, “self admitting” its contents. The notation “red suit” was marked on the 2008 classification sheet, indicating defendant was “high security.” The 2008 classification sheet was also published to the jury.
Deputy Conley opined defendant was an “active” member of ESV at the time of trial and had been for a long time. Defendant was also a “shot caller” for the gang. Deputy Conley based this opinion on his contacts with defendant, his subsequent conversations with other gang members, including Ramirez, and with gang investigators, including Detective Goodell and Deputy Roper, on defendant’s CDCR validation file, the 1993 gang identification card, and on the 2004 and 2008 gang classification sheets. Defendant was also an associate of the Mexican Mafia and enjoyed a high level of “influence and status” which allowed him to direct the activities of southern Hispanic gang members.
Defendant expressed his high-level status in ESV by directing the activities of other gang members. As an example that defendant directed the activities of other gang members, Deputy Conley pointed to defendant’s April 2009 letter to Ramirez, telling him not to enter into a plea bargain unless defendant also agreed. According to the deputy, the letter indicated that defendant exercised “a certain amount of influence” over Ramirez and other members of ESV.
As another example of defendant directing the activities of other gang members, Deputy Conley explained that, in November 2008, around one month before defendant’s December 5, 2008, arrest on the current charges, three ESV gang members, namely, George Espinosa (Little Sleepy), Fernando Perez (Bam-Bam), and Joseph Delonie (Little Goofy) committed a residential robbery in downtown Victorville. The robbery was a “taxation” of a drug dealer who was dealing drugs in the old town area of Victorville, an area claimed by ESV. During the robbery, Delonie was shot and killed by the drug dealer, and Perez was shot and wounded. Perez later recovered, and Perez and Espinosa—the homicide suspect the officers were looking for when they went to defendant’s home on December 5, 2008—were charged with the murder of
Delonie. Over defense objections, Deputy Conley then testified that “Perez gave a statement to investigators stating that [defendant] directed that robbery and taxation.”
The prosecutor next asked Deputy Conley whether defendant’s possession of methamphetamine on December 5, 2008, was a gang-related activity. The deputy responded that it was in view of the “totality of the circumstances.” These included: (1) defendant’s “classification admission” of his gang status in jail following his December 5, 2008, arrest, as evidenced by the 2008 classification sheet; (2) defendant’s association with Ramirez, another ESV gang member, at defendant’s home; (3) the fact defendant’s house was in ESV territory and subject to the 2007 injunction; and (4) the fact a stolen car was parked in front of defendant’s house at the time defendant and Ramirez possessed the methamphetamine. The deputy explained that stolen cars are common in gang culture because they can be used for “drive-bys” and other gang-related activity, and can be traded for weapons, drugs, or cash.
The prosecutor next posed a hypothetical question, asking Deputy Conley to assume Ramirez went to defendant’s home to sell defendant methamphetamine, and the sale was interrupted by the arrival of law enforcement officers. When asked how that hypothetical sale of drugs to defendant could have furthered, assisted, or promoted criminal conduct by members of ESV, the deputy responded that sales of drugs, even between gang members, further the gang’s criminal activities by generating profits that can be used to buy more drugs, cars, or weapons for the gang, or pay taxes to the Mexican Mafia.
Under cross-examination, Deputy Conley admitted defendant was the first “high ranking” gang member he had ever encountered who did not have gang-related tattoos. He also admitted that a gang member could distance himself from a gang and not commit crimes for the gang for several years while still claiming membership in the gang, but that normally entailed leaving the gang’s territory and getting away from other members of the
gang. Deputy Conley had never arrested defendant or any other ESV gang member for violating the 2007 injunction.
Deputy Conley did not complete or sign defendant’s 2004 or 2008 classification sheet, and said it would be unethical to change a classification sheet after the inmate signed it. If a change had to be made, he would conduct a “reclassification interview” and complete a new classification sheet for the inmate to sign.
In April 2008, when defendant was in jail, Deputy Conley spoke with defendant and asked him about his status and CDCR validation as a Mexican Mafia associate. Defendant said he had been validated as a Mexican Mafia associate in 1988, and he was a member of “Victoria, ” not “East Side Victoria.” Defendant explained he was around when the gang was formed; it started when members of different families who were associated with the gang were tagging “Victorville South Side.” Then someone crossed out South Side and wrote East Side, and eventually East Side “stuck.” During the April 2008 contact, the deputy also asked defendant whether he was in good standing with “Victoria” and the Mexican Mafia, and defendant responded, “I’m in good standing until I am not.”
Lastly, Deputy Conley testified that, through a process known as “debriefing, ” a Mexican Mafia associate can “decloak” himself from that classification in the state prison system. The associate is placed in protective custody and must disclose all his past criminal activity on behalf of his gang and everything he knows about his gang’s current activities. To the deputy’s knowledge, defendant had never “debriefed.”
C. Defense Evidence
Ramirez and defendant testified for the defense.
1. Ramirez’s Testimony
Ramirez testified that on the night of December 5, 2008, he drove to defendant’s house in a white Camry. He did not know the car had been reported stolen. He brought some methamphetamine, a scale, and a cellular telephone with him. He used some of the drug to get “high, ” and gave some of the drug to defendant. He believed defendant also got high, but he did not actually see defendant use the drug. As he was getting high himself, he was not paying attention.
After he was high, Ramirez separated the rest of the methamphetamine into bags and gave defendant a bag containing some ...