People v. IrahetaPeople v. Iraheta
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to
In the unpublished portion of the opinion, we reject Iraheta‘s arguments that addition of the
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
a. People‘s evidence
(i) The December 2002 shooting of Michael Orozco
On December 20, 2002, at approximately 5:30 p.m., Noe Martinez drove his white Honda Civic to the Jr. Market in Inglewood. Inside the market, Jose Tovar, whom Martinez did
Martinez then drove to the home of his friend, 17-year-old Michael Orozco, where the two socialized and drank beer and tequila. At approximately 8:30 that evening Orozco and Martinez headed for another friend‘s home. Because Martinez was feeling “buzzed,” Orozco drove Martinez‘s Honda. Their route took them past the Jr. Market.
Meanwhile, Iraheta, his pregnant girlfriend Melody Maciel, his younger brother Richard Iraheta,2 and his stepbrother Alexis Moreno planned to go to the movies. Iraheta drove the group in his Camaro. En route, they stopped at the Jr. Market, where Iraheta saw his friend Tovar. While they were talking, Martinez‘s car passed by the market, and Tovar pointed at it.
Martinez saw Tovar‘s gesture and told Orozco to “step on it.” Iraheta followed them in his Camaro. Orozco drove to 65th Street and, at Martinez‘s direction, stopped the car. Martinez exited the Honda, intending to talk to the people in the Camaro. He was wearing a red hat and a dark red jacket or shirt. Iraheta, driving the Camaro, pulled up slowly. Martinez lifted his hands up and said, “‘what‘s going on?‘” As the Camaro passed the Honda, Iraheta fired a single gunshot and sped off. The shot shattered the Honda‘s driver‘s side window and hit Orozco in the neck, fatally wounding him.
Officers stopped the Camaro shortly after the shooting. An officer found a loaded gun under the front passenger seat. One round was expended. Forensic testing revealed that the bullet that killed Orozco had been fired from the gun. At a field showup conducted shortly after the shooting, Martinez identified the Camaro and Iraheta. Officers did not find a gun in Martinez‘s Honda.
(iii) Statements and testimony by the other occupants of the Camaro
Moreno and Melody testified that as the Honda passed the Jr. Market, it slowed and then sped off. En route to Melody‘s house, Iraheta‘s group came upon the Honda stopped in the middle of the road, partially blocking their path. Melody asked Orozco to move the car. Martinez approached the back of the Camaro. Both Melody and Moreno heard Richard say, “‘he‘s got a gun.‘” Iraheta pulled a gun from under his seat, fired a single shot at the Honda, and drove off. A white SUV or truck with its high beams on briefly chased the Camaro. Melody asked Iraheta, “‘What were you thinking? Why did you do it?‘” He replied that “he was sorry; that he didn‘t want to put us in this situation but he did it for our own safety.” Iraheta handed the gun to Melody and told her to put it under her seat. In a recorded police interview, Moreno stated that Iraheta had followed the Honda after leaving the market. He explained at trial that he did not mean Iraheta intentionally followed the Honda, but that Iraheta simply travelled in the same direction.
(iv) Gang evidence
A gang expert testified regarding the characteristics and activities of the Inglewood 13 gang. He opined that Iraheta was
b. Defense evidence
Iraheta testified in his own defense. At the time of the shooting, he was 19 years old, had no criminal record, was in the military reserves, and was not a gang member. He and Melody were planning to marry. He had just been hired by Bank of America and was enrolled to start classes at ITT Tech. He had a “West L.A.” tattoo, but it was not a gang tattoo. He had the gun for protection because he had been beaten up near his house by gang members approximately six months before the shooting. He had been walking home from a sandwich shop when gang members confronted him, and they attacked when he stated he was not a gang member.
On the night of the shooting, Iraheta, Melody, and his brothers were planning to go to the movies at Universal City Walk. He drove by the Jr. Market and his friend Tovar flagged him down. While he and Tovar were talking, Martinez‘s Honda passed by. Tovar warned Iraheta that the Honda‘s occupants had been “cruising around and looking for trouble” and had “‘mad-dogg[ed]‘” him earlier that day. Iraheta left the Jr. Market a few minutes later. He did not intentionally follow the Honda, but his
Tovar testified that he saw the Honda slow as it passed the Jr. Market. He believed one of the men in the Honda was a gang member because he was wearing red, a gang color. As he was talking to Iraheta, the Honda passed by again. Tovar told Iraheta to be careful because the men in the Honda “‘might be guys looking for trouble‘” or “they don‘t look like they‘re from here.” Tovar admitted he had been an Inglewood 13 gang
Among other things, the defense introduced the testimony of two witnesses who had attended basic training with Iraheta, and did not know him to be a gang member; expert testimony regarding the “fight or flight” syndrome; expert testimony regarding the Culver City Boys gang, whose gang color was red; and a gun expert‘s testimony that an object shown in a photograph of the Honda‘s interior, but not discovered by police, was a gun.
2. Procedure
In 2003, after an earlier trial, a jury convicted Iraheta of second degree murder with a firearm enhancement. We affirmed the judgment in an unpublished opinion. (People v. Iraheta (Apr. 30, 2008, B173223) (Iraheta I).) Thereafter our Supreme Court granted review and, after issuance of its opinion in People v. Chun (2009) 45 Cal.4th 1172, transferred the matter back to us for reconsideration in light of that decision. Overruling prior precedent, Chun held that shooting at an occupied motor vehicle (
Iraheta then filed a motion for a new trial on a variety of grounds. The trial court granted the new trial motion on the ground that it had erred in failing to instruct the jury on imperfect self-defense in regard to the
On remand, the trial court imposed the midterm of five years on the shooting at an occupied motor vehicle charge, and 25 years to life on the
Iraheta appeals.
DISCUSSION
1. Admission of gang evidence
a. Additional facts
The People‘s theory was that Iraheta was an Inglewood 13 gang member who killed Orozco because he believed Orozco and Martinez to be rival gang members in Inglewood 13 territory. As set forth below, to establish Iraheta‘s gang membership, the People offered evidence that Iraheta was found on two occasions in the company of Inglewood 13 gang members, and his cellular telephone contained the phone numbers and contact information for numerous gang members. The People also offered expert testimony on the characteristics and culture of the Inglewood 13 criminal street gang.
(i) Officer Barragan‘s expert testimony regarding the Inglewood 13 gang
Inglewood Police Officer Jose Barragan, who had extensive training and experience regarding gangs, testified as an expert on the Inglewood 13 gang. In 2002, the gang had approximately 500 members. It was associated with the Mexican Mafia. A person joins a gang in one of three ways: he is either “jumped in,” that is, beaten up; commits crimes for the gang; or has a relative who is a high ranking gang member. Gang members commonly use monikers. Inglewood 13 gang members often wear “I” belt buckles similar or identical to one Iraheta was observed wearing on the night of the shooting and during an earlier contact with police. They typically have Inglewood 13 tattoos, and sometimes have “West L.A.” tattoos like Iraheta‘s.
(ii) The September 2, 2002 Buick incident
In response to reports of a robbery and a man with a gun, on September 2, 2002, City of Inglewood Police Officer John Baca and Lieutenant Neal Cochran responded to East Brett Street in Inglewood. They observed three male Hispanics – Ramon Rodriguez, Carlos Carcamo, and Carlos Ordonaz –walking westbound on the sidewalk. One threw an object, later determined to be a gun, under a nearby parked Mazda, and fled; he was captured shortly thereafter. The other two men remained on the scene. Baca and Cochran noticed Iraheta, Tovar, and Christian Muniz seated in a brown Buick parked near the Mazda and contacted them because of concern the Buick might be a
Cochran completed FI cards on Iraheta and Tovar. Cochran testified that during the contact, Tovar admitted being an Inglewood 13 member with the moniker “Little Drowsy.” Cochran wrote “Inglewood 13” on Iraheta‘s FI card because Iraheta was with Tovar. Cochran also observed that Iraheta had an “LA” tattoo on his left upper arm, which signified a southern California gang under control of the Mexican Mafia. Cochran noted Iraheta was frequenting a gang area and was wearing gang attire, but did not describe at trial the attire he deemed gang-related. Iraheta did not admit gang membership or give a moniker. Muniz likewise did not admit he was a gang member. Without objection, Baca testified: “after we conducted our investigation, we found out that the subjects that were involved in this were Inglewood 13 gang members,” as were the occupants of the Buick.
Iraheta testified to an innocent explanation for his presence with Tovar and Muniz. He was a passenger in the car and was waiting for his friend Ivan, who was inside a nearby house settling an argument with his (Ivan‘s) girlfriend. Ivan was not a gang member. Neither he, Tovar, nor Muniz was involved in a robbery. When an officer repeatedly asked if Iraheta was a gang member, he denied it.
(iii) The December 2, 2002 Centinela Park incident
Sergeant Brett Birkbeck testified that on December 2, 2002, he and his partner, Officer Robert Martinez, went to Centinela Park to investigate a report of a man with a gun. When they arrived, they observed a group of approximately
Officer Barragan reviewed the police report regarding the Centinela Park incident, reviewed FI cards generated during the investigation, and talked to the officers who were there. Centinela Park had long been an Inglewood 13 hangout, with gang members and gang graffiti present; it was “known for getting jumped in and hanging out.” Over an objection that the testimony was hearsay and violated the confrontation clause, Barragan testified that he had spoken to gang members who had been “jumped in” at the park. Over the same objection, Barragan testified that, based on his review of the FI cards, four of the five males detained with Iraheta in the park were self-admitted Inglewood 13 gang members. The trial court ruled that Barragan‘s review of FI cards was the foundation for his expert testimony. No testimony from the officer or officers who prepared FI cards on Vela, Fraticelli, Maciel, Pineda, or Parra was offered.
Iraheta testified that he was at the park to pick up Melody‘s younger brother Luis, at the request of Melody‘s mother. Luis had had an ongoing problem with another youth, Romeo. Iraheta searched the park until he found Luis, grabbed him, and
Yolanda Hernandez (Melody and Luis‘s mother), testified that after a neighbor notified her that Luis was being beaten up at Centinela Park, she asked Iraheta to go retrieve him.
(iv) Iraheta‘s phone contacts
Officer Barragan reviewed “screen shots” of the contacts listed in Iraheta‘s cellular telephone at the time Iraheta was arrested. Forty-four of the 98 contacts appeared to Barragan to be monikers, although some contacts were duplicates. Barragan believed some of the listed contacts were monikers because gang members “call[] themselves these types of names.” Barragan cross-referenced the monikers and telephone numbers in the phone to those listed on FI cards prepared by other officers at various times, as detailed below. Based on this comparison, Barragan confirmed that 12 of the contacts in Iraheta‘s phone were of known Inglewood 13 gang members, including Tovar, Raul Guillen, Muniz, Rodriguez, Giovanni Arias, Javier Lara, Martin Fuentes, Omar Gomez, and Christian Cobian.
Detective Daniel Milchovich testified that he completed an FI card on Tovar on January 15, 2002, under circumstances not disclosed in the record. He concluded Tovar was an Inglewood 13 gang member because of Tovar‘s presence in a gang area, his “I” belt buckle, and his self-admission. Tovar stated his moniker was “Lil Drowsy.”
Milchovich prepared an FI card on Guillen on August 2, 2002, under circumstances not disclosed by the record. Iraheta‘s hearsay objection to the FI card was overruled. Guillen had gang tattoos, affiliated with the gang, had self-admitted Inglewood 13
Officer Kerry Tripp testified that he had prepared FI cards on seven Inglewood 13 gang members: Muniz, Rodriguez, Arias, Lara, Fuentes, Gomez, and Christian Cobian. He had known each of these men during the mid 1990s and/or 2000s and knew Muniz, Rodriguez, Arias, Lara, Fuentes, and Gomez to be Inglewood 13 gang members. He had observed Rodriguez‘s and Arias‘s Inglewood 13-related tattoos. The FI cards stated Muniz and Fuentes also had gang tattoos, but Tripp did not state he had observed them. Whether or not indicated on the FI cards, Tripp knew Muniz‘s moniker was “Triste“; Rodriguez‘s was “Gumby” or “Daffy“; Arias‘s was “Magoo“; Lara‘s was “Boogie“; and Gomez‘s was “Sharky.” Tripp indicated on the FI cards that Muniz, Arias, and Fuentes had frequented gang areas, and Muniz, Arias, Lara, Gomez, and Cobian sported gang attire, but did not testify to his observations of these attributes. The FI cards indicated Muniz, Arias, and Fuentes affiliated with other gang members. When Tripp prepared the FI cards, he observed Muniz with Juan and Christian Cobian; Rodriguez was with Ordonez and Carcamo; Arias was with Edward Morales and Guillen; Fuentes was with Alan Archaga, Anthony Cabrera, and Carcamo, three “self-admitted” Inglewood 13 gang members; Cobian was on one occasion with his brother Juan, a known Inglewood 13 gang member; and Lara was “sometimes” with other persons Tripp knew to be Inglewood 13 gang members. The phone numbers on
The FI card on Arias was completed at the Inglewood jail, sometime after Arias was arrested on unspecified charges. The FI cards for Lara, Cobian, and Fuentes indicated they had been “arrested with” other gang members. Other than for Arias, Tripp did not describe the circumstances under which he encountered the men.
(v) Officer Barragan‘s opinion that Iraheta was a gang member and the motive for the crime was gang-related
Over defense counsel‘s objection that a question to an expert should be in the form of a hypothetical, Barragan opined that Iraheta was an Inglewood 13 gang member at the time of the shooting. The basis of his opinion was as follows: “I reviewed the facts of this case, reports, obviously F.I. cards, photographs of Mr. Iraheta, the ‘West L.A.’ tattoo . . . , the ‘I’ on his belt buckle. [¶] The reports, I reviewed reports where gang members were arrested from Inglewood 13, and Mr. Iraheta was F.I.‘d or contacted at that location. I‘ve also reviewed a report where there was a fight or a man-with-a-gun call at Centinela Park where individuals were detained and admitted to being from . . . the Inglewood 13 gang, along with Mr. Iraheta was in their presence. [¶] His phone, I reviewed records of his phone
When given a hypothetical based upon the evidence – including the assumption that Iraheta was an Inglewood 13 gang member – Barragan opined that the motive for the crime was a “gang motive.”
b. Iraheta‘s contention that admission of gang evidence was irrelevant and unduly prejudicial
Iraheta makes two arguments regarding admission of the gang evidence. First, he contends that the gang evidence, particularly evidence of the Centinela Park and Buick incidents, should have been excluded as irrelevant and more prejudicial than probative under
c. Confrontation clause claim
Iraheta‘s contention that the gang expert and other officers improperly testified to testimonial hearsay in violation of state law hearsay rules or his federal confrontation clause rights is not precluded by the law of the case doctrine, and has merit.
The Sixth Amendment provides that an accused has the right to be confronted with the witnesses against him. (
In the unpublished portion of Iraheta III, we observed that it had long been the law in California that gang experts may rely on reliable hearsay in forming their opinions, and could testify regarding the basis for their opinions, even if the evidence would otherwise be inadmissible. (
(i) The Sanchez decision6
In Sanchez, the defendant was charged with drug and firearm offenses and active participation in the Delhi street gang, along with a
Sanchez held “the case-specific statements related by the prosecution expert concerning defendant‘s gang membership constituted inadmissible hearsay under California law. They were recited by the expert, who presented them as true statements of fact, without the requisite independent proof. Some of those hearsay statements were also testimonial and therefore should have been excluded under Crawford. The error was not harmless beyond a reasonable doubt.” (Sanchez, supra, 63 Cal.4th at pp. 670-671.) Accordingly, the court reversed the true findings on the street gang enhancements. (Id. at p. 671.)
Sanchez drew a distinction between an expert‘s general knowledge and “case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) At common law, the distinction between case-specific and background facts had been honored by the use of hypothetical questions, in which an examiner could ask an expert to assume certain case-specific facts for which there was independent competent evidence. (Id. at pp. 676-677.) However, over time the distinction between background information and case-specific hearsay had become blurred, leading to the rule that
Overruling prior precedent, Sanchez concluded “this paradigm is no longer tenable because an expert‘s testimony regarding the basis for an opinion must be considered for its truth by the jury.” (Sanchez, supra, 63 Cal.4th at p. 679.) “Once we recognize that the jury must consider expert basis testimony for its truth in order to evaluate the expert‘s opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth. If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner.” (Id. at p. 684, italics added, fn. omitted.)
Sanchez made clear that its holding did not do away with all gang expert testimony. “Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so,” that is, he or she may “relate generally” the “kind and source of the ‘matter’ upon which his opinion rests.” (Sanchez, supra, 63 Cal.4th at pp. 685-686.) “Gang experts, like all others, can rely on background information accepted in their field of
Thus, in regard to case-specific hearsay, Sanchez “jettisoned” the former “not-admitted-for-its-truth” rationale underlying the admission of expert basis testimony, and occasioned a “paradigm shift” in the law. (People v. Stamps (2016) 3 Cal.App.5th 988, 994-995; People v. Ochoa (2017) 7 Cal.App.5th 575, 588.)
Sanchez then turned to consideration of what constitutes testimonial hearsay, a question not yet clearly defined by the United States Supreme Court. (Sanchez, supra, 63 Cal.4th at p. 687.) Prior testimony and police interrogations are clearly testimonial. (Id.) Sanchez explained that beyond these clear categories, the high court had articulated several formulations for determining the testimonial nature of out-of-court statements. Under the “primary purpose” test, “[t]estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.” (Sanchez, at p. 689.) Whether the statements were spontaneous or given in a formal or informal setting is also relevant. (Id. at pp. 693-694; see Ohio v. Clark (2015) ___ U.S. ___ [135 S.Ct. 2173].) Sanchez concluded that statements about a completed crime, made to an investigating officer by a nontestifying witness (unless made in the context of an ongoing emergency or for some primary purpose other than preserving facts for use at trial), were generally testimonial. (Sanchez, at p. 694Sanchez were testimonial. (Id.) Likewise, at least the portion of a STEP notice retained by police is testimonial. That portion records defendant‘s biographical information, whom he was with, and what statements he made; the officer‘s purpose is to establish facts to be later used against the defendant or his companions at trial; and the notice is part of an official police form containing the officer‘s sworn attestation. (Sanchez, at pp. 696-697.)
The court concluded FI cards “may be testimonial.” (Sanchez, supra, 63 Cal.4th at p. 697.) Sanchez explained that “[i]f the card was produced in the course of an ongoing criminal investigation, it would be more akin to a police report, rendering it testimonial.” (Id.) However, because the parties had not focused on the point below, and the origins of the FI cards at issue there were confusing, Sanchez did not decide whether the content was testimonial or not, given that the expert‘s testimony based on the police and STEP reports required reversal in any event. (Id. at pp. 697-698.)
(ii) Application here
To determine whether Officer Barragan‘s expert testimony, or that of the other officers, was prejudicial error we use the “two-step analysis” required by Sanchez. “The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and
The gang evidence adduced here is comprised of a mixture of admissible evidence, evidence that violated state hearsay rules, and evidence that violated the federal confrontation clause.
A. Officer Barragan‘s general testimony about the gang
Officer Barragan‘s expert testimony regarding the general attributes of the Inglewood 13 gang, such as the gang‘s culture, the importance placed on reputation and guns, the requirements to join or leave the gang, the gang‘s rivals and claimed turf, the use of monikers and identifying symbols, and the like, were permissible as expert background testimony. (Sanchez, supra, 63 Cal.4th at p. 685; People v. Meraz (2016) 6 Cal.App.5th 1162, 1175 [a gang‘s operations, primary activities, and pattern of criminal activities are background facts, not case-specific facts, under Sanchez], review granted March 22, 2017, S239442, opn. ordered to remain precedential; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411-412.) For example, Sanchez explained that an expert‘s opinion that a particular tattoo indicated gang membership was background information. (Sanchez, at p. 677.)
B. Testimony regarding Tovar
Tovar‘s statements to Lieutenant Cochran and Detective Milchovich that he was an Inglewood 13 gang member and his moniker was “Lil Drowsy” were hearsay; they were case-specific, out-of-court statements offered for the truth of the matter asserted. (See Sanchez, supra, 63 Cal.4th at p. 674.) However, Tovar testified for the defense at trial. He confirmed that his moniker was “Drowsy“; that his phone number was listed by his moniker in Iraheta‘s cellular telephone; and that he had been an Inglewood 13 gang member from 1996 to 1999. Later in his testimony he seemed to suggest he was a gang member at the time of the shooting. Iraheta also testified that he knew Tovar was an Inglewood 13 gang member. Thus, assuming arguendo Cochran‘s and Milchovich‘s testimony about Tovar‘s out-of-court statements was not covered by an exception to the hearsay rule, any state law hearsay error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836;
Personal observations by any officer of Iraheta‘s or other subjects’ tattoos, attire, companions, and location were not hearsay. Thus, Cochran‘s and Birkbeck‘s observations of Iraheta‘s tattoo, Birkbeck‘s and Milchovich‘s observations of Iraheta‘s or Tovar‘s “I” belt buckles, and Milchovich‘s or Tripp‘s observations of Guillen‘s, Rodriguez‘s, and Arias‘s gang-related tattoos were admissible evidence. Likewise, Baca‘s, Cochran‘s, and Birkbeck‘s descriptions of the activities they observed during the Buick and Centinela Park incidents was based on their personal knowledge and was not hearsay. And, because these officers testified at trial, Barragan was entitled to rely on their testimony regarding these matters as the basis for his expert opinion. (See Sanchez, supra, 63 Cal.4th at p. 684 [“the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner“].)
D. Officer Tripp‘s knowledge of gang membership and monikers
Officer Tripp‘s testimony that he knew Muniz, Rodriguez, Arias, Lara, Fuentes, Gomez, and Cobian were gang members, and that he knew five of the men‘s monikers, was likewise not hearsay. His testimony was apparently based on his personal knowledge, and the defense did not object on foundational grounds or seek to elicit the basis for his knowledge.
E. FI cards and related testimony
The FI cards referenced by expert Barragan as the basis for his opinion that four of the five men found with Iraheta at Centinela Park were self-admitted Inglewood 13 gang members constituted testimonial hearsay. The information in the FI cards
Further, the statements contained in the FI cards were testimonial. Sanchez concluded FI cards “may” be testimonial, but did not hold they always are. (Sanchez, supra, 63 Cal.4th at p. 697People v. Ochoa, supra, 7 Cal.App.5th at p. 585; People v. Valadez (2013) 220 Cal.App.4th 16, 35-36.) But Sanchez reasoned that if an FI card is “produced in the course of an ongoing criminal investigation, it would be more akin to a police report, rendering it testimonial.” (Sanchez, at p. 697.) Here, the FI cards were prepared in the course of an investigation by multiple officers into the activities at the park, which had been initiated by a report to police of a man with a gun. “When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial.” (Sanchez, at pp. 694-695 (Id. at p. 697.) Counsel interposed hearsay and confrontation clause objections, which were overruled based on the interpretation of the law applicable at the time. Thus, admission of the evidence violated the confrontation clause. (Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.)
Barragan‘s statement that he had spoken to gang members who had been “jumped in” in Centinela Park was likewise hearsay. It was a case-specific, out-of-court statement offered for its truth.
F. Testimony regarding telephone numbers and gang membership
Detective Milchovich and Officer Tripp testified to preparation of FI cards on eight subjects in addition to Tovar: Guillen, Muniz, Rodriguez, Arias, Lara, Fuentes, Gomez, and Cobian. Much of the officers’ testimony pertained to their notations on the FI cards of their nonhearsay observations of the subjects. However, the officers testified to two types of hearsay which, for our purposes, is significant. First, the officers testified that six of the subjects “self-admitted” their gang membership. The declarants did not testify. The officers’ testimony that the
Second, seven of the subjects provided their telephone numbers to the officers during the encounters, and the officers recorded the numbers on the FI cards. Barragan used the phone numbers on the FI cards as the primary basis for his conclusion that the contacts in Iraheta‘s cellular telephone belonged to fellow Inglewood 13 gang members. The telephone numbers were only relevant if offered for their truth. In other words, Barragan‘s comparison depended, at least in part, for its accuracy on the assumption that the phone numbers — which were provided in out-of-court statements, by nontestifying witnesses — were accurate. The statements by the FI card subjects as to their phone numbers were thus case-specific hearsay. (See People v. Meraz, supra, 6 Cal.App.5th at p. 1176; People v. Stamps, supra, 3 Cal.App.5th at p. 996; People v. Ochoa, supra, 7 Cal.App.5th at p. 583
For the most part, the record is insufficiently developed to allow us to determine whether the aforementioned statements were testimonial. It appears the FI cards on Arias, Lara, Cobian, and Fuentes were testimonial; the card for Arias was prepared at the jail after Arias‘s arrest, and the other FI cards indicated the subjects were arrested with other gang members or for gang-related crimes. To the extent these facts suggest the FI cards were prepared in the course of an ongoing investigation, they were testimonial. (See Sanchez, supra, 63 Cal.4th at p. 697.) However, the record is too sparse to allow a definitive conclusion. As to the remaining evidence, the record does not disclose the nature of the contacts between the officers and the FI card subjects, hindering analysis of the statements’ nature.
In the face of this undeveloped record, the People argue that because defense counsel failed to consistently and specifically object on hearsay and confrontation clause grounds, Iraheta‘s confrontation clause claim has been forfeited. (See People v. Ochoa, supra, 7 Cal.App.5th at p. 586 [“due to defendant‘s failure to object, the record is not clear enough for this court to conclude which portions of the expert‘s testimony involved testimonial hearsay“; accordingly, there was no showing the confrontation clause was violated].) Iraheta counters that counsel‘s objections were sufficient, and in any event, more specific or additional confrontation clause objections would have been futile because at the time of trial, People v. Gardeley, supra, 14 Cal.4th 605 allowed an expert to testify to hearsay evidence that formed the basis of the expert‘s opinion. (See People v. Meraz, supra, 6 Cal.App.5th at p. 1170, fn. 7 [prior to Sanchez, failure to object on confrontation grounds would likely have been futile because the trial court was bound to follow pre-Sanchez decisions holding expert “basis” evidence did not violate confrontation clause]; Conservatorship of K.W. (2017) __ Cal.App.5th __ [2017 Cal.App.Lexis 678]; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508.) Indeed, when defense counsel eventually made a continuing objection to evidence related to the FI cards, the trial court concluded, in accord with the law in effect at the time (see People v. Stamps, supra, 3 Cal.App.5th at pp. 993-994) that an expert could state the basis for his opinion.
But we need not determine whether testimony regarding self-admission of gang membership by Guillen, Muniz, Rodriguez, Gomez, Arias, Fuentes, Archaga, Cabrera, and Carcamo, or the provision of telephone numbers, was testimonial. Even if the evidence was admitted in violation of state law hearsay rules only, when considered along with the confrontation clause violation discussed ante, the evidentiary errors were prejudicial, as we explain.
(iii) Prejudice
The parties treated the question of Iraheta‘s gang membership as a pivotal issue in the case. The prosecutor argued the evidence demonstrated “this was nothing less than a cold-blooded murder in which this defendant, due to his affiliation, membership, whatever you want to call it with the Inglewood 13 gang, when he had that conversation with . . . Tovar, ‘Drowsy,’ he followed that car, and he killed Michael Orozco.” The prosecutor urged that “Motive is important in this case. Because if you‘re reasonable and you listen to all the evidence . . . the motive for
Iraheta‘s only viable defense to the