Appellants once again sought review. The California Supreme Court denied Chambasis's petition, but granted Meraz's and Bibiano's petitions and held the cases pending disposition in two other cases raising issues related to sentencing juveniles to life without parole. The court specifically ordered that our prior opinion remain precedential. ( Cal. Rules of Court, rule 8.1115(e)(3).) The court transferred the matter to us to determine if Meraz and Bibiano's sentencing challenges were rendered moot by Senate Bill No. 394, effective January 1, 2018. If not, the court directed us to reconsider the matter in light of Montgomery v. Louisiana (2016) --- U.S. ----,
Our reconsideration of this case does not affect the portions of our prior opinion affirming appellants' convictions. We reissue those parts of our opinion without change and, for clarity, we republish the previously published part of our prior opinion. In the unpublished part of this opinion, we reject Meraz's and Bibiano's Eighth Amendment challenges to their sentences as moot but conditionally reverse and remand their judgments for transfer hearings pursuant to Welfare and Institutions Code section 707. Presuming Meraz's and Bibiano's cases are transferred to adult criminal court, they are entitled to resentencing hearings to make a record of factors potentially relevant to their future youth offender parole hearings. Moreover, all three appellants are entitled to remand for the trial court to
PROCEDURAL HISTORY
Appellants were jointly charged with the murders of Javier Zamora and Justin Curiel ( Pen. Code, § 187, subd. (a) ; counts 1 & 2),
STATEMENT OF FACTS
The shooting in this case was part of a long-standing rivalry between two gangs in Pacoima: Pacoima Terra Bella (Terra Bella) and the Pacoima Project Boys (Project Boys). The rivalry reached a heated point on May 5, 2008, when Project Boys member Jose Avila shot and killed Terra Bella member Alejandro Villa. Avila was convicted of the murder. The shooting by appellants here-all Terra Bella members-was viewed as retaliation for Villa's murder.
On September 20, 2009, the day of the shooting, 16-year-old Project Boys member Santa Ana lived at the San Fernando Gardens housing project, which was in Project Boys gang territory. Santa Ana and fellow Project Boys member Zamora were on the porch of Rosemary Hurtado's apartment when Curiel joined them. Curiel was not a gang member and had just moved into San Fernando Gardens. About five minutes after Curiel arrived, three males approached, carrying firearms. Santa Ana recognized them and identified them at trial as Bibiano, also known as "Blacky"; Meraz, also known as "Curley"; and Chambasis, also known as "Bash." Bibiano asked the trio where they were from, which Santa Ana knew was gang parlance asking which gang they were from. Curiel tried to say he "wasn't from anywhere." One of the appellants said they were from Terra Bella. Meraz told a group of young children playing nearby, including Curiel's brother, to leave. When the children left, appellants began shooting.
Before the shooting, 12-year-old S.B. was playing near the porch where the shooting took place. She noticed three males approaching the victims on the
Zamora was shot seven times, three of which were fatal. Curiel was shot four times, two of which were fatal. Santa Ana was shot five times, and although he survived, he acted like he was dead. After appellants fled back the way they had come, Santa Ana saw his friends were dead, so he tried to walk toward a nearby fire station but collapsed on the way.
Hurtado heard the gunshots, emerged from her apartment to investigate, and saw Santa Ana and the other two victims. As she checked on her children, Santa Ana walked away. When she found him heading toward the fire station, he repeatedly told her "Terra Bella" shot him.
Several Los Angeles police officers arrived at the scene. One officer approached Santa Ana and said to him, "You're going to die. Who shot you? What happened?" Santa Ana responded, "Blacky from Terra Bella Street," i.e., Bibiano, shot him. He told another officer "Blacky" had tattoos of a "1" and a "3" on his forearms.
Thirteen shell casings, eight bullets, and two partial bullets were recovered from the scene. A ballistics expert linked one of the casings to a gun used by Timothy Jenkins in a shooting eight days earlier. Jenkins was a member of the Pacoima Pirus gang, which had a friendly relationship with Terra Bella. He told police he traded the gun to Chambasis for marijuana on the day before the shooting at San Fernando Gardens.
All three appellants were arrested the day after the shooting. When officers contacted Meraz, he briefly attempted to flee but was apprehended. Officers recovered a cell phone and a belt buckle with the letter "T" on it. Chambasis and Bibiano were arrested when officers stopped the car they were riding in together. Bibiano gave officers a false name. A search of Chambasis's residence yielded two Pittsburgh Pirates baseball caps with "RIP, Bones" and "TBST" written on them, a rifle, a shotgun, and other items with his name on them.
While in custody, Bibiano and Meraz were placed in a cell together and their conversation was secretly recorded. Bibiano said he was going to "do life." He said officers got him in "Bash's car" about an hour before. He
During an interview about the murders, Bibiano began to cry. He denied knowing Chambasis.
At an interview with the police after appellants were arrested, Luis E. Orozco said Bibiano "jumped" him into the gang and Terra Bella had "problems" with Project Boys after Villa's murder. Orozco was with appellants at a park three to five miles away from the San Fernando Gardens at around 5:00 p.m. the day of the shooting. He let Bibiano borrow his cell phone and Bibiano left the park around 5:20 p.m. After Bibiano left the park, he called Orozco later at home and told him, "Don't go outside there's too much cops." At some point, Bibiano returned to say goodbye to his girlfriend and gave Orozco his phone back. Bibiano began to watch the news, which Orozco found suspicious. In response to a story showing "ladies crying" in "the Projects right here," Bibiano seemed nervous and said, "Man, fuck. I got to get the fuck out of here." He said he had "fucked up" and he was "going to hell." A recording of the news broadcast from that day showed photographs of Zamora and Curiel with signs reading "Rest in peace, Javier, Pimps" and "Rest in peace, Justin."
A search of the phone Orozco said he lent Bibiano and the phone recovered from Meraz revealed a text message was sent from Meraz's phone to Orozco's phone at 1:17 p.m. the day after the shooting reading, "I'm going to Sinaloa tonight. I already got my ticket." At 1:27 p.m., Orozco's phone
Officer Tyler Adams testified as a gang expert for the prosecution. He was assigned to monitor Terra Bella and he gathered information by talking to gang members, both in and out of custody, as well as interviewing them as part of conducting probation and parole services. Terra Bella had approximately 30 members and their symbols included "13" to signify affiliation with the Mexican Mafia and the hand signals and initials "TB" and "TBS." The gang's primary activities were burglary, grand theft, carrying loaded and concealed firearms, assault with firearms, assault likely to cause great bodily injury, and felony vandalism. Officer Adams identified convictions of several Terra Bella gang members for those types of crimes. He confirmed the rivalry between Terra Bella and Project Boys, which became heated after Avila murdered Villa in May 2008.
Officer Adams confirmed all three appellants were Terra Bella gang members. Meraz had previously admitted he was a Terra Bella gang member, and when Officer Adams had previously stopped him, he had been with other gang members, had been wearing gang attire, and had a "PTB" tattoo inside his bottom lip. During one stop, Meraz said he was trying to get into Terra Bella and had to "smoke somebody" to do so. Bibiano had gang tattoos and when Officer Adams previously stopped him, he had been with other gang members. Officer Adams had also obtained a photograph showing Bibiano throwing gang hand signals. Chambasis also had gang tattoos and Officer Adams had previously stopped him in the presence of other
Officer Adams testified to the importance of respect in a gang and "putting in work" by typically committing crimes to move up in the gang. He believed the shooting in this case was bold within Terra Bella, given it occurred during the day in rival gang territory. When given a hypothetical question tracking the facts of the shooting, Officer Adams opined the shooting was retaliatory for Villa's murder. He also opined the murders were associated with, committed for, and likely committed at the direction of Terra Bella.
Appellants did not testify. In his defense, Chambasis offered evidence that no fingerprint analysis was done on the casings recovered at the scene of the shooting. He elicited testimony that when police interviewed S.B. at the police station after the shooting, she said the gunman she remembered was shorter than the officer interviewing her, who was about five feet 10 inches tall, and had hair. She said the other men did not have guns. When she was shown two books of photographs, she pointed to someone who was not Chambasis and said, "Kind of No. 11 ... but only had hair."
DISCUSSION
1. Santa Ana Impeachment Evidence
2. Gang Expert Testimony
Appellants jointly contend the trial court violated their Sixth Amendment rights to confrontation by allowing Officer Adams to give expert opinions based on out-of-court testimonial hearsay from declarants whom appellants did not have an opportunity to cross-examine. Before our high court decided Sanchez , we found no error. Reevaluating appellants' contentions in light of Sanchez , we conclude a narrow portion of Officer Adams's testimony was barred by the confrontation clause and state law, but the erroneous admission of that testimony was harmless beyond a reasonable doubt.
A. Sanchez
In Sanchez , our high court considered the extent to which Crawford v. Washington (2004)
The defendant challenged the admission of the gang expert's testimony describing the defendant's prior contacts with police, arguing it was testimonial hearsay that violated his confrontation clause rights. ( Sanchez, supra,
The court explained under Crawford and the confrontation clause, a hearsay statement is inadmissible unless it falls within an exception recognized at the time of the Sixth Amendment's adoption or the declarant is unavailable to testify and the defendant had a previous opportunity for cross-examination or that opportunity was forfeited. ( Sanchez, supra ,
On the state law question, the court drew a line between an expert's testimony as to general background information and case-specific facts. Traditionally, "an expert's testimony concerning his general knowledge, even
The court explained that courts frequently avoided any confrontation issues with this kind of expert basis evidence by "concluding that statements related by experts are not hearsay because they 'go only to the basis of [the expert's] opinion and should not be considered for their truth.' " ( Sanchez, supra , 63 Cal.4th at pp. 680-681,
The court thus crafted the following rule: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." ( Sanchez, supra ,
Turning to the facts of the case, the court concluded the police reports, the STEP notice, and potentially the FI card were case-specific testimonial hearsay, violating the confrontation clause. First, the three contacts with the defendant reflected in police reports compiled by the investigating
The court found the confrontation clause violation prejudicial as to the gang enhancements because the main evidence of the defendant's intent to benefit the gang was the expert's recitation of testimonial hearsay. ( Sanchez, supra,
B. Officer Adams's Testimony
Like the expert in Sanchez , Officer Adams testified to his extensive training on gangs generally and how he gathered background information about Terra Bella. For training, he had attended gang courses and conferences; he had trained in the field with an officer who pointed out active gang members; he
Based on this experience and background, he described the size of Terra Bella, its symbols, and its primary activities, and he identified the convictions of several Terra Bella members based on court records. He also described the rivalry between Terra Bella and Project Boys, which became heated after Avila murdered Villa in May 2008. He further testified to the importance of respect in a gang and "putting in work" by typically committing
As to appellants specifically, he opined all three appellants were Terra Bella gang members. Critically and in contrast to Sanchez , he based his opinion on his personal interactions with each of them, which were recorded on FI cards intended to "document the basics of the stop for any future investigative use." For example, Officer Adams stopped Meraz two months before the shooting in this case, and Meraz told him he was trying to become a full-fledged member of Terra Bella, and to do so, he needed to "smoke" someone. Officer Adams interpreted this to mean he needed to shoot someone. Meraz also wore Terra Bella gang attire during this encounter and had a Terra Bella gang tattoo inside his bottom lip. Officer Adams contacted Bibiano several times while in the company of other Terra Bella gang members. He identified Bibiano in photographs in which he was displaying gang hand signals and gang tattoos. And Officer Adams contacted Chambasis twice in the presence of other gang members. He took photographs of Chambasis's gang tattoos and belt buckle.
Officer Adams did, however, also testify regarding FI cards filled out by other officers. In one, Meraz said he was a member of the Pierce Street gang, not Terra Bella. In another, it was noted Meraz was present with another gang
C. Analysis
Appellants argue almost all aspects of Officer Adams's general background testimony were case specific and testimonial, including his opinion that the shooting in this case was in retaliation for Villa's murder, how Terra Bella operates, the gang's primary activities, and the gang's pattern of criminal activity based on convictions of other gang members. In doing so, appellants attack the sources of Officer Adams's testimony, namely "out-of-court statements made by both police officers and other gang members." They also focus on how the prosecution used Officer Adams's testimony to prove both the gang enhancements and the retaliatory motive for the shooting in this case. Appellants fundamentally misunderstand the scope and import of Sanchez .
Under Sanchez , facts are only case specific when they relate "to the particular events and participants alleged to have been involved in the case being tried," which in Sanchez were the defendant's personal contacts with police reflected in the hearsay police reports, STEP notice, and FI card. ( Sanchez, supra,
We also conclude that none of this background information was testimonial. Unlike the STEP notice, police reports, and FI card in Sanchez , nothing in the record suggests Officer Adams obtained any of this information "primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." ( Sanchez, supra,
Some portions of Officer Adams's testimony were case specific under Sanchez , namely, his interactions with appellants memorialized on FI cards. But unlike the hearsay documents in Sanchez , this testimony was not barred under state or federal law because Officer Adams was present during these contacts, had personal knowledge of the facts, and was subject to cross-examination at trial. ( Sanchez, supra, 63 Cal.4th at pp. 676, 680,
Respondent concedes, and we agree, state hearsay rules barred the admission of Officer Adams's testimony on the FI cards and arrest report completed by other officers outside his presence, all of which conveyed the same type of case-specific
In any case, we will assume the FI cards at issue here were testimonial because we conclude their admission and the admission of the arrest report was harmless beyond a reasonable doubt. ( Sanchez, supra,
3.-6.
Disposition for Chambasis
Chambasis's sentence is vacated. We remand the matter for resentencing to allow the trial court to consider whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h). In resentencing Chambasis, the trial court is directed to strike the section 186.22, subdivision (b)(1) enhancement, to strike the section 1202.45 parole revocation fine, to impose a $160 court security fee, to impose a $120 criminal conviction assessment, and to award 1,173 days of presentence custody credit. Following resentencing, the court shall issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In
Disposition for Meraz
The judgment for Meraz is conditionally reversed. We remand the matter to the juvenile court with directions to conduct a transfer hearing as discussed in this opinion, no later than 90 days from the filing of the remittitur. If at the transfer hearing the juvenile court determines that it would not have transferred Meraz to a court of criminal jurisdiction, then his criminal convictions and enhancements will be deemed juvenile adjudications as of this date. The juvenile court should then conduct a dispositional hearing within its usual time frame.
If the juvenile court determines at the transfer hearing that it would have transferred Meraz to a court of criminal jurisdiction, then his convictions shall be reinstated as of that date. The criminal court is directed to conduct a resentencing hearing for Meraz to consider whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h) and to allow the parties to make a record consistent with Franklin as discussed in this opinion. In resentencing Meraz, the trial court is directed to strike the section 186.22, subdivision (b)(1) enhancement, to strike the section 1202.45 parole revocation fine, to impose a $160 court security fee, to impose a $120 criminal conviction assessment, and to award 1,166 days of presentence custody credit. Following resentencing, the court shall issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
Disposition for Bibiano
The judgment for Bibiano is conditionally reversed. We remand his case to the juvenile court with directions to conduct a transfer hearing as discussed in
If the juvenile court determines at the transfer hearing that it would have transferred Bibiano to a court of criminal jurisdiction, then his convictions shall be reinstated as of that date. The criminal court is directed to conduct a resentencing hearing for Bibiano to consider whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h) and to allow the parties to make a record consistent with Franklin as discussed in this opinion. In resentencing Bibiano, the trial court is directed to strike the section 186.22, subdivision (b)(1) enhancement, to strike the section 1202.45 parole revocation fine, to impose a $160 court security fee, to impose a $120 criminal conviction assessment, and to award 1,167 days of presentence custody credit. Following resentencing, the court shall issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur:
RUBIN, J.
GRIMES, J.
Notes
Presiding Justice of the Court of Appeal, Second Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Undesignated statutory citations are to the Penal Code unless otherwise noted.
It was alleged Chambasis had a prior strike conviction, which the trial court ultimately found not to be true.
The court struck the firearm enhancements for count 4 on dual-use grounds.
When Bibiano was arrested the following day, he had tattoos matching Santa Ana's description, although by the time of trial he had turned the "1" into a "T" and the "3" into a "B."
See footnote *, ante .
Respondent argues appellants forfeited this issue by failing to object on confrontation clause grounds in the trial court. Any objection would likely have been futile because the trial court was bound to follow pre-Sanchez decisions holding expert "basis" evidence does not violate the confrontation clause. (See, e.g., People v. Hill (2011)
This acronym is a reference to the California Street Terrorism Enforcement and Prevention Act. (Pen. Code, § 186.20 et seq. ; Sanchez, supra ,
Even if we assume Officer Adams's opinion that the shooting was retaliatory for Villa's murder by the rival Project Boys gang was case specific and beyond his personal knowledge, his opinion was still admissible. Another gang officer who assisted in the investigation of the Villa murder testified to the feud between Terra Bella and Project Boys. Officer Adams was permitted to rely on those independently proven facts to opine the current shooting was retaliatory for Villa's murder. (See Sanchez, supra,
The certified records of the convictions of other gang members also were not testimonial under Crawford . (People v. Taulton (2005)
See footnote *, ante .