Filed 8/21/15 P. v. Hinojosa CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B254911

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. PA071636)
         v.

JOSE HINOJOSA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Dalila
C. Lyons, Judge. Affirmed in part and reversed in part with directions.
         Siri Shetty, 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, Senior Assistant Attorney General, Jason Tran, Supervising
Deputy Attorney General, and Jonathan M. Krauss, Deputy Attorney General, for Plaintiff
and Respondent.
                                 _________________________________
       Defendant Jose Hinojosa appeals from the judgment entered following a jury trial
in which he was convicted of shooting at an occupied motor vehicle and two counts of
attempted murder, with gang and firearm-use findings. Defendant pleaded no contest to a
charge he violated a gang injunction. Defendant contends the trial court erred by
admitting evidence he was served with the gang injunction and by denying his request for
discovery of a photograph of him taken by gang officers during a traffic stop in 2007. He
argues both errors violated his federal constitutional right to confront the witnesses
against him. We conclude the trial court erred with respect to the photograph, but reject
defendant’s claim regarding the gang injunction evidence.
                                     BACKGROUND
The Shooting
       Around 10:50 p.m. on April 28, 2011,1 Anthony Ramirez parked across the street
from the Sylmar home of John Rios in order to visit his friend Jose, who was in turn
visiting Rios. Ramirez’s brother, David Gaxiola, was in the passenger seat of Ramirez’s
car. Ramirez had previously been a member of the Pacoima Knock Knock Boys gang,
and he knew that the rival San Fer gang claimed the area they were visiting as part of its
“turf.” Ramirez was not dressed in gang-type apparel and wore a long-sleeve shirt that
covered his tattoos. Gaxiola had never been a gang member and did not associate with
gang members. According to Rios, Jose was a gang member.
       As Gaxiola was getting out of the car and before Ramirez could do so, a white
Chevy Tahoe SUV pulled up alongside the driver’s side of Ramirez’s car, with the
window of the Tahoe’s front seat passenger aligned with Ramirez’s window. The Tahoe
was higher than Ramirez’s car, which was a Saab station wagon, and the interior of the
Tahoe was dark, whereas the light was on inside the Saab because the passenger door was
open. Ramirez could nonetheless see the Tahoe’s driver and passenger clearly. Ramirez



       1   Undesignated date references pertain to 2011.


                                              2
did not see any damage to the body of the Tahoe, but noticed it had very shiny custom
rims.
        The Tahoe’s front seat passenger “hit up” Ramirez, i.e., asked him where he was
from, which Ramirez understood to be an inquiry about his gang affiliation. Ramirez
testified that he responded, “‘I’m from Pacoima Knock Knock Boys,’” then added, “‘I’m
not here to disrespect your neighborhood, I’m not here to cause any problems. I just want
to visit a friend.’” Ramirez admitted, however, that he lied to the police and told them
that he merely responded, “[I] don’t bang.” Gaxiola told Los Angeles Police Department
(LAPD) Detective Craig Hewitt that he told the passenger in the Tahoe that he did not
“bang.”
        Ramirez testified the passenger who had hit him up looked at the driver of the
Tahoe, whom Ramirez identified at trial as defendant. Defendant nodded his head and
extended his right arm. Ramirez demonstrated the gesture in court, but no one described
it for the record. The passenger then asked, “‘Where did you say you were from again?’”
Ramirez testified he began to reiterate that he was from Pacoima, but before he could
finish his sentence, the Tahoe passenger began shooting at him. Ramirez saw the gun
quite clearly and insisted it was a semiautomatic, not a revolver. Ramirez felt a shot or
shots strike his left arm and ribs. He heard a total of three to five shots. Gaxiola ran
away from the car. Ramirez testified he also ran, but Rios and Gaxiola testified that
Ramirez was still in the car after the shooting when they went to check on him and assist
him.
        Rios testified that Jose screamed something that caused the Tahoe driver to look at
Jose, Rios, and Rios’s girlfriend, Jennifer Collins, who were standing outside Rios’s
garage watching the events unfolding. Ramirez testified that as the Tahoe drove away,
someone inside it yelled, “‘Varrio San Fer.’”
        Ramirez admitted at trial he did not tell anyone about someone yelling “‘Varrio
San Fer’” as the Tahoe drove away or about the driver nodding and extending his arm
until he testified at the preliminary hearing. Ramirez explained that he had to tell the


                                              3
truth at the preliminary hearing because he was under oath. He further explained that he
had previously withheld this information and lied to the police because he feared
retaliation and wanted to “protect” the perpetrators from arrest and prosecution for a
gang-related offense. He hoped “they” would forget about it. Even when Hewitt
interviewed him three weeks after the shooting and showed him a photographic array
from which he identified defendant, he was still trying to protect the perpetrators.
Although the police did not threaten him, Ramirez felt he had to give them some
information or he would be found in violation of his parole. He tried to give them as little
information as possible. Ramirez admitted that he asked for favorable treatment regarding
his own new burglary case in exchange for his testimony at the preliminary hearing and a
reduction of his sentence in that case in exchange for his testimony at trial. Both requests
were refused.
       Gaxiola testified that he did not see the driver do anything or hear any gang-related
statements, but he also testified he had little recall of the events because he was
intoxicated at the time. He further testified Ramirez had told him he did not get a good
look at the driver. Rios, who testified he had an excellent view into the Tahoe, did not
see the driver make any movements, see the front passenger turn to look at the driver, or
did not hear any gang-related statements. LAPD Officer Matthew Vannatter testified no
one except Ramirez ever mentioned any action by the driver other than driving.
       Ramirez testified that the Tahoe depicted in a photograph of an SUV owned by
defendant’s girlfriend, Christina Lopez, looked just like the one used in the shooting
except the rims were different. Rios testified and had told the police that the Tahoe he
saw was a z71 model with stock rims. The photograph of Lopez’s Tahoe depicted the
exact same type of vehicle with the same rims, but there was a “very obvious” dent in the
rear quarter panel on the driver’s side of the one in the photograph, whereas there was no
dent on the Tahoe used in the shooting.




                                              4
        Rios testified that the men in the Tahoe were much younger than defendant. He
testified defendant was not one of those men and did not look like the driver at all. He
had told the prosecutor that in a meeting a few weeks before defendant’s trial.
        Ramirez had been struck by a single bullet that went through his arm, then struck
his ribs, but did not penetrate. At the hospital he received a Tetanus shot and his wounds
were bandaged, then he discharged himself. He suffered numbness and pain for a month.
The investigation and events subsequent to the crimes
        Responding police officers noted bullet “impacts” on the exterior of Ramirez’s car
and found three expended bullets in the street, one in the back seat of Ramirez’s car, and
one on the ground alongside the passenger door of his car. They found no casings.
        Rios testified that he saw a Tahoe that looked identical to the one used in the
shooting at a neighborhood liquor store about a week after the shooting. As Rios
approached the vehicle, the person in the driver’s seat hid, and Rios did not get a good
look at him. Rios feared gang retaliation for his testimony.
        On the night of May 15, Matthew Vannatter and several other gang offices who
had responded to the crime scene were out on patrol together. Vannatter saw a white
Tahoe parked in front of a “very active” “San Fer gang house” located less than one block
from the crime scene. As the officers left their vehicle to investigate the Tahoe, two men
wearing San Francisco Giants hats got out of the passenger side of the Tahoe and “walked
hurriedly” into the house, all the while ignoring the officers’ commands to stop.
Vannatter, who also served as the prosecution’s gang expert, testified the “SF” logo on
the hats was a symbol used by the San Fer gang. Defendant got out of the driver’s seat of
the Tahoe, approached the officers, and identified himself. Vannatter had previously met
defendant. Defendant told Vannatter that the Tahoe belonged to his girlfriend and that he
had permission to drive it. Vannatter verified that the Tahoe was registered to Christina
Lopez, and the officers took the photograph of the vehicle later shown to Ramirez and
Rios.




                                              5
       On May 18, Vannatter and at least five other gang officers went to defendant’s
home to arrest him. As they approached his home, they saw defendant walking toward
the white Tahoe. Defendant looked in their direction and made eye contact with
Vannatter. Defendant then reached into his waistband, bent down, and tossed something
under the vehicle as the officers approached with their guns drawn. Defendant was
arrested without resistance. Vannatter and another officer looked under the Tahoe and
recovered a fully loaded six-shot “blue steel revolver.” Ballistics testing established that
the recovered revolver had fired the five lead bullets recovered from the crime scene.
       After defendant’s arrest, Ramirez selected defendant’s photograph from an array
as looking “similar” to the driver, but he testified at trial he believed the person he
selected was the driver and he would not have identified anyone if he had been uncertain.
Evidence introduced to establish the gang enhancement allegations
       Vannatter served as the prosecution’s expert witness regarding the San Fer gang.
He testified, inter alia, that the crime scene was within the territory claimed by the gang;
the gang’s primary activities include murder and drive-by shootings; all Pacoima gangs
are enemies of the San Fer gang; tattoos specific to the gang include “SF,” “VSF,” the
name of a member’s clique, and “91340,” which is the zip code for San Fernando;
members often wear clothing or hats for the San Francisco Giants or 49ers, Seattle
Mariners hats, Superman shirts, or belt buckles depicting an “S.” Vannatter further
testified that “typical,” “general” tattoos for Hispanic gang members included three dots,
a teardrop, or “818” for someone from the valley, but these did not indicate a specific
gang. Defendant’s tattoos included three dots and “818” on his hand, which Vannatter
opined would allow defendant to show his tattoos while making the gang’s hand sign.
Defendant also had “Rosa,” some flowers, and “Hinojosa” tattoos. Gaxiola also had an
“818” tattoo and, although he was not a “documented” gang member, Vannatter
considered Gaxiola a Pacoima gang associate because he associated with Ramirez and
had been convicted of crimes.




                                               6
       LAPD gang Officers Alonso Menchaca and Pablo Rivera testified regarding a
July 6, 2007 contact they had with defendant that was crucial to Vannatter’s opinion
testimony regarding defendant. Menchaca and Rivera conducted a traffic stop on a
vehicle defendant was driving. Menchaca testified that defendant, as well as his two
passengers, admitted being members of the San Fer gang. Defendant told Menchaca his
moniker was Slim. Menchaca testified defendant was wearing a belt buckle with the
letter “S” on it, which Menchaca knew was San Fer gang attire. Menchaca prepared both
a report and an “F.I. card” regarding the stop, which turned into an arrest. The report was
produced at trial, but the F.I. card was not. Menchaca testified he unsuccessfully tried to
find the F.I. card, and he believed it had been “sent downtown and filed.” He made no
effort, however, to obtain the card from downtown. Menchaca’s report did not include
any reference to defendant’s gang admission, even though the report set forth questions
Menchaca asked defendant and defendant’s responses thereto concerning the subject of
the arrest. Nor did the report refer to defendant’s belt buckle, even though it contained a
section to describe the “clothing worn.” Vannatter testified the gang admission “would
go on an F.I. card.”
       Menchaca and Rivera testified that Menchaca photographed defendant July 6,
2007, then loaded the digital photo into a gang database. Both testified they were unable
to print it because the database contents were confidential and for law enforcement use
only. Menchaca explained it would “apparently” require a court “request” to obtain a
copy of the photo. Rivera testified he had looked at the photo in the gang database during
the week before he testified at trial, but did not recall whether defendant was wearing an
“S” belt buckle in the photo. Menchaca testified he, too, had refreshed his memory
before he testified by viewing the photograph.
       Vannatter and Rivera testified they served defendant with the injunction against
the San Fer gang on May 14, 2009. Defendant denied he was a member of the gang, but
signed a proof of service at the officers’ request. Vannatter testified the injunction “has a
lot of accords and behaviors that bars that gang member from doing, such as associating


                                              7
with others in a safety zone area, not committing crimes, not carrying weapons, not
threatening anybody, stuff like that.” The proof of service listed defendant’s tattoos,
noted that he admitted membership on July 6, 2007, and identified the people with whom
he had been associating on July 6, 2007. Vannatter testified defendant was served with
the gang injunction “[b]ecause he was identified as a San Fer gang member, self-admitted
San Fer gang member.” Rivera also filled out an F.I. card that day, which was produced
at trial. Rivera noted on the card that defendant was wearing an “S” belt buckle.
Vannatter testified, “[A]nything with an S on it worn by a San Fer gang member, it’s a
gang identifier.”
       Vannatter opined defendant was a member of the San Fer gang. His opinion was
premised on several factors: when the officers saw him on May 15, he was in San Fer
gang territory “with two other gang members that had fled from the vehicle; he has “gang
style tattoos on his body”; he previously admitted he was a member and had a moniker; he
had been served with the injunction against the San Fer gang; he was wearing an “S” belt
buckle and associating with two San Fer gang members when Menchaca and Rivera
stopped him on July 6, 2007; he was wearing an “S” belt buckle when Vannatter and
Rivera served him with the gang injunction; and on the date of his arrest, he was also “in
a gang turf area, and there was behavior consistent with what [Vannatter] would expect a
San Fer gang member to be participating in on that particular date.”
       In response to a hypothetical question based upon the prosecution’s evidence,
Vannatter further opined that the crimes would have been committed for the benefit of the
San Fer gang because they occurred in San Fer territory and their commission enhanced
the gang’s reputation. He explained that the presence of a member of a rival gang within
San Fer territory reflected disrespect for the San Fer gang. He further opined the driver’s
“gesture with the nod and the passing of the object would suggest to me an older member
having a younger member commit the crime.” Shouting the gang’s name indicated the
perpetrators wanted everyone to know who committed the offenses to instill fear of the




                                             8
gang, thereby deterring victims and witnesses from cooperating with the police and
allowing the gang to control the community.
Defense evidence
       Denise Mitchell, who was related to the mother of defendant’s children and also a
close friend of Christina Lopez, testified that the dent on the Tahoe’s driver’s side rear
door occurred on April 4, 2010, at Staples Center when she borrowed the vehicle and
drove defendant and others to a Lakers’ game. It was never repaired.
       Detective Hewitt confirmed that Ramirez requested leniency in exchange for his
testimony at the preliminary hearing and a sentence reduction in exchange for his
testimony at trial. In both instances, Hewitt denied Ramirez’s requests.
Verdicts and sentencing
       During jury selection defendant pleaded no contest to a charge of violating a gang
injunction. The jury convicted him of shooting at an occupied motor vehicle and two
counts of attempted murder. The jury found these offenses were committed for the
benefit of, at the direction of, or in association with a criminal street gang, with the
specific intent to promote, further, or assist in criminal conduct by gang members. (Pen.
Code, § 186.22, subd. (b)(1).)2 The jury further found that in the commission of each
offense, a principal used a gun and intentionally fired a gun. (§ 12022.53, subds. (b), (c),
(e).) The jury did not make any findings on the allegations that the attempted murders
were willful, deliberate, and premeditated, or on allegations that a principal intentionally
fired a gun, causing great bodily injury (§ 12022.53, subds. (d), (e)). The court failed to
notice these omissions until after the jury had been discharged. It later dismissed those
allegations.
       Defendant waived his right to a jury trial on prior conviction allegations and
stipulated he was the person who suffered the alleged prior convictions. The court found
true allegations defendant’s prior assault with a deadly weapon conviction constituted a

       2   Undesignated statutory references are to the Penal Code.


                                               9
serious felony conviction for purposes of both the “Three Strikes” law and a section 667,
subdivision (a)(1) enhancement allegation. The court also found true one section 667.5,
subdivision (b) prior prison term allegation.
       The court sentenced defendant to an aggregate second strike prison term of 36
years to life, consisting of 15 years to life for shooting at an occupied motor vehicle
pursuant to section 186.22, subdivision (b)(4)(B), doubled pursuant to the Three Strikes
law, plus 5 years for the section 667, subdivision (a)(1) enhancement, plus 1 year for the
section 667.5, subdivision (b) enhancement. The court imposed a 6-month concurrent
sentence for violation of the gang injunction and stayed the sentences on the attempted
murder convictions.
                                       DISCUSSION
1.     Admission of gang injunction evidence
       Defendant contends that the trial court erred by admitting evidence that he had
been served with the injunction against the San Fer gang. He argues the trial court abused
its discretion by overruling his Evidence Code section 352 objection to this evidence and
that admission of this evidence violated his federal constitutional confrontation right.
       a.      Proceedings in the trial court
       During the trial, the prosecutor informed the court he wanted to use evidence that
defendant had been served with the gang injunction against the San Fer gang as proof that
defendant was a member of the gang. The prosecutor assured the court that the officers
who served defendant with the injunction would testify about serving him and explain
that they did so because they believed defendant was a member of the gang, then explain
the basis for their beliefs.
       Defense counsel objected pursuant to Evidence Code section 352 on the ground
the injunction evidence would confuse the jury. He explained: “That injunction doesn’t
prove he is a gang member. That’s the problem. . . . [¶] . . . I’m concerned the jury is
going to see that gang injunction and they are going to use it to say that yes, he is a gang
member. It doesn’t say that. It doesn’t say that at all. . . . It never says or makes a


                                                10
judicial finding of anybody who is a gang member, your honor. By putting that in there,
the district attorney’s stated purpose is to prove he is a gang member. [¶] That injunction
doesn’t do that. I’m concerned the jury is going to be given the weight of a court order
indicating that it’s proof that [defendant] is a gang member, which in no way it says that.”
Counsel protested that defendant was not even named in the injunction or any of its
attachments and argued: “It is the police opining that he falls within this because they
believe he is a San Fer, so they go and serve him, your honor. That’s a far cry from a
judicial officer making a finding that he is a gang member, your honor.”
       The trial court overruled the objection and allowed the prosecutor to introduce the
evidence to “corroborate their belief and support their belief” that defendant is a gang
member. The court noted that on cross-examination defense counsel could “make those
arguments, that the service of the injunction is not necessarily a court order that the
defendant is a gang member.”
       Thereafter, Vannatter and Rivera testified about serving defendant with the San
Fer gang injunction on May 14, 2009, and Vannatter testified his service of defendant
with the injunction was one of the bases for his opinion that defendant was a member of
the San Fer gang. On cross-examination, Vannatter repeatedly insisted that although the
injunction did not name defendant, defendant was nonetheless included within its scope
because Vannatter had served him with it, and, “The proof of service adds people to the
gang injunction.” Defense counsel asked, “Other than the service sheet that shows you
served him, do you have anything from the court that lists gang members, that lists him
actually in the injunction?” Vannatter responded, “In the initial gang injunction, no. But
the proof of service does add him, and it is approved by the city attorney.” Vannatter
admitted he had no documentation from the city attorney stating a belief that defendant
was a gang member and directing the police to serve him with the injunction, but insisted,
“It was served by us, approved by the city attorney.”




                                             11
       b.     Defendant’s Evidence Code section 352 objection
              (1)    Governing legal principles
       Evidence Code section 352 provides that the court may, in its discretion, exclude
relevant evidence if its probative value is substantially outweighed by the probability that
its admission will either be unduly time consuming or create a substantial danger of
undue prejudice, confusion of the issues, or misleading the jury.
       We review any ruling on the admissibility of evidence for abuse of discretion.
(People v. Elliott (2012) 53 Cal.4th 535, 577.)
       The court’s erroneous admission of the evidence requires reversal only if
defendant establishes that it is reasonably probable he would have obtained a more
favorable outcome had the evidence been excluded. (Evid. Code, § 353, subd. (b);
People v. Earp (1999) 20 Cal.4th 826, 878; People v. Watson (1956) 46 Cal.2d 818, 836.)
              (2)    The trial court abused its discretion, but the error was harmless
       Evidence that Vannatter and Rivera had served defendant with the gang injunction
had little or no probative value. Defendant was not named in the injunction and had not
been found by a court to be a member of the gang. The decision to serve him with the
injunction was, as the prosecutor described to the court before it ruled upon defendant’s
objection to the evidence, a matter of Vannatter believing defendant was a member of the
gang and deciding to serve him with the injunction based upon that belief. Thus, the fact
Vannatter served defendant with the injunction amounted to nothing more than
Vannatter’s prior formation of an opinion that defendant was a San Fer gang member.
The enduring nature of Vannatter’s opinion did not “support” or “corroborate” his belief
at trial that defendant was a member of the San Fer gang, it simply demonstrated it was an
entrenched belief and he had not changed his mind. The same analysis applies with
respect to Rivera, but because he was not serving as the prosecution’s gang expert, his
opinion was even less relevant. Accordingly, the probative value of evidence the officers
had served defendant with the gang injunction was minimal or nonexistent.




                                             12
       In contrast, admitting evidence defendant had been served with the injunction
against the San Fer gang created an extremely powerful risk that the jury would conclude
erroneously that service of the gang injunction established defendant was a member of the
gang. Although membership in the gang was not an element of any of the charges or
even the gang enhancement allegations, such membership assists the prosecution in
proving the gang enhancement allegations, specifically that the crime was “committed for
the benefit of, at the direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang members”
(§ 186.22, subd. (b)(1)), by suggesting defendant’s gang-related motive and casting
defendant’s conduct in a gang-related light.
       The risk the jury might conclude that the gang injunction evidence proved
defendant was a gang member substantially outweighed the minimal or nonexistent
probative value of the evidence, and the trial court should have excluded it. Moreover,
the evidence was not simply admitted as one factor upon which Vannatter relied, but was
instead the subject of testimony by both Vannatter and Rivera regarding their conduct in
serving the injunction. The prosecutor informed the trial court that the testimony would
take this form and come from both Vannatter and Rivera before the trial court ruled upon
defendant’s objection. Under the circumstances, we conclude the trial court abused its
discretion.
       We nevertheless conclude defendant has not established a reasonable probability
he would have obtained a more favorable outcome had the gang injunction evidence been
excluded. Defense counsel’s skillful cross-examination clarified that the gang injunction
evidence amounted to nothing more than a belief by Vannatter and Rivera, with approval
by the city attorney, that defendant belonged to the San Fer gang. Vannatter testified to
the same opinion at trial, making the gang injunction evidence redundant. In addition, the
evidence, albeit disputed, showed defendant had admitted membership on one occasion
and had been seen wearing attire consistent with membership in the gang on several
occasions. Perhaps most significantly, defendant’s conduct during the charged offenses,


                                               13
especially his conduct in stopping his vehicle alongside the victims’ car and remaining
there while his passenger “hit them up” and began shooting, supported a strong inference
defendant acted to benefit the gang and with the specific intent to promote, further, or
assist in criminal conduct by gang members. In short, the record strongly demonstrated
that this was a gang-related crime in which defendant was a major participant. In light of
that evidence, defendant has not shown that it is reasonably probable he would have
obtained a more favorable result on the gang enhancement allegations, let alone the
charges themselves, had the trial court excluded or limited the gang injunction evidence.
       c.     Defendant’s confrontation clause contention
              (1)    Governing legal principles
       The Sixth Amendment guarantees a criminal defendant the right “to be confronted
with the witnesses against him.” (U.S. Const., 6th Amend.) In Crawford v. Washington
(2004) 541 U.S. 36 [124 S.Ct. 1354] (Crawford), the Supreme Court held the
confrontation clause bars “admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” (Id. at pp. 53–54.) The confrontation clause does
not restrict the introduction of out-of-court statements for nonhearsay purposes or the use of
prior testimonial statements “when the declarant appears for cross-examination at trial,”
however. (Id. at p. 59, fn. 9; People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6 (Cage).)
After Crawford, courts have “labored to flesh out what it means for a statement to be
‘testimonial.’” (Ohio v. Clark (2015) __ U.S. __, __ [135 S.Ct. 2173, 2179] (Clark).)
       In Cage, supra, the California Supreme Court delineated its understanding of the
characteristics of the category: “We derive several basic principles from Davis [v.
Washington (2006) 547 U.S. 813 [126 S. Ct. 2266]]. First, as noted above, the
confrontation clause is concerned solely with hearsay statements that are testimonial, in
that they are out-of-court analogs, in purpose and form, of the testimony given by
witnesses at trial. Second, though a statement need not be sworn under oath to be
testimonial, it must have occurred under circumstances that imparted, to some degree, the


                                             14
formality and solemnity characteristic of testimony. Third, the statement must have been
given and taken primarily for the purpose ascribed to testimony—to establish or prove
some past fact for possible use in a criminal trial. Fourth, the primary purpose for which
a statement was given and taken is to be determined ‘objectively,’ considering all the
circumstances that might reasonably bear on the intent of the participants in the
conversation. Fifth, sufficient formality and solemnity are present when, in a
nonemergency situation, one responds to questioning by law enforcement officials, where
deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law
enforcement officials are not testimonial if the primary purpose in giving and receiving
them is to deal with a contemporaneous emergency, rather than to produce evidence about
past events for possible use at a criminal trial.” (Cage, supra, 40 Cal.4th at p. 984, fns.
omitted.)
       In its most recent pronouncement regarding the parameters of “testimonial”
evidence, the California Supreme Court stated: “Although the [United States] Supreme
Court has not settled on a clear definition of what makes a statement testimonial, we have
discerned two requirements. First, ‘the out-of-court statement must have been made with
some degree of formality or solemnity.’ (People v. Lopez (2012) 55 Cal.4th 569, 581.)
Second, the primary purpose of the statement must ‘pertain[] in some fashion to a
criminal prosecution.’ (Id. at p. 582; accord, People v. Dungo (2012) 55 Cal.4th 608,
619.)” (People v. Leon (2015) 61 Cal.4th 569, 603.) The United States Supreme Court
has also focused on whether, considering all relevant circumstances, including the identity
of the interrogator and the informality or solemnity of the questioning, the primary
purpose of questioning is to obtain “testimonial evidence against the accused.” (Clark,
supra, __ U.S. at p. __ [135 S.Ct. at pp. 2180–2181].)
       Because the confrontation clause does not apply to out-of-court statements admitted
for nonhearsay purposes, no confrontation violation occurs where an expert witness refers
to out-of-court statements upon which he or she relied in forming an opinion because such
“basis” evidence is not admitted for its truth. (People v. Gardeley (1996) 14 Cal.4th 605,


                                             15
619 (Gardeley); People v. Sisneros (2009) 174 Cal.App.4th 142, 153–154; People v.
Ramirez (2007) 153 Cal.App.4th 1422, 1427.)
                  (2)   Defendant forfeited his confrontation clause claim
       In the trial court, defendant asserted only an Evidence Code section 352 objection
to admission of the gang injunction evidence. He never alerted the trial court to his
present claim that introduction of the evidence would violate his confrontation rights.
The legal principles entailed in a Crawford confrontation clause claim are completely
different from those presented by the Evidence Code section 352 objection defendant
asserted in the trial court. Accordingly, he forfeited his confrontation clause claim.
(People v. Riccardi (2012) 54 Cal.4th 758, 801 [“except to the extent his claims rely on
the same facts and legal standards the trial court itself was asked to apply, defendant has
forfeited his contentions of federal constitutional error by failing to assert them before the
trial court”].)
                  (3)   No confrontation clause violation occurred
       Even if defendant’s confrontation claim had been preserved, we would necessarily
reject it for several reasons. First, the prosecutor introduced the gang injunction evidence
by means of the testimony of Vannatter and Rivera. Defendant vigorously cross-
examined both officers. There was no confrontation violation as to their testimony.
Although Vannatter stated on cross-examination that the city attorney approved the
service of the gang injunction on defendant, defendant did not object to Vannatter’s
references to the city attorney on any ground or seek to strike them. This was a notable
contrast to defendant’s frequent, successful “nonresponsive” objections to, and motions to
strike, the testimony of Vannatter and other police officers. Thus, defendant forfeited any
claim regarding introduction of an implicit statement of opinion by the city attorney by
failing to object on any ground.
       Second, pursuant to Gardeley, supra, 14 Cal.4th at page 619, out-of-court
statements relied upon by an expert in forming an opinion are not admitted for their truth.
Although this principle has recently become controversial (People v. Hill (2011) 191


                                             16
Cal.App.4th 1104, 1128–1131) and the California Supreme Court has granted review in a
case concluding that expert “basis” evidence sometimes is admitted for its truth (People v.
Archuleta, review granted June 11, 2014, S218640), we are bound by Gardeley until it is
abrogated by the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) We note that the trial court took care to admonish the jury both before
and during Vannatter’s expert testimony that the matters upon which an expert witness
relied in forming his opinion were not to be considered for the truth of the matter
asserted, but only to assess the expert’s opinion.
       As defendant notes, the trial court also instructed the jury in the charge that “In
evaluating the believability of an expert witness, follow the instructions about the
believability of witnesses generally. In addition, consider the expert’s knowledge, skill,
experience, training, and education, the reasons the expert gave for any opinion, and the
facts or information on which the expert relied in reaching that opinion. You must decide
whether information on which the expert relied was true and accurate. You may
disregard any opinion that you find unbelievable, unreasonable, or unsupported by the
evidence.” (CALCRIM No. 332.) Defendant argues this “essentially asked [the jury] to
determine the truth of the testimonial hearsay relied upon by the expert.” While it is quite
possible the jury may have had difficulty following both CALCRIM No. 332 and the
court’s admonitions about the truth of the basis evidence, we are nonetheless bound by
Gardeley and defendant has not challenged the use of CALCRIM No. 332, either at his
trial or on appeal.
       Third, even if evidence that the officers believed defendant was a member of the
San Fer gang and therefore served him with the standing injunction against that gang is
viewed as a statement or embodying an implied statement, it was not a “testimonial”
statement for Crawford purposes. Although the appellate record does not contain or
reflect the precise nature or terms of the San Fer gang injunction, gang injunctions in
general are intended to abate a public nuisance resulting from the collective action of
gang members. (See, e.g., § 186.22a, subd. (c); People v. Engelbrecht (2001) 88


                                             17
Cal.App.4th 1236, 1242–1246.) Thus, the primary purpose of serving defendant with the
San Fer injunction was not to establish or prove some past fact for possible use in a
criminal trial, but to attempt to prevent him from congregating with members of the gang
and committing specified acts in designated areas. Such service therefore did not fall
within the scope of “testimonial” statements.
       For all of the foregoing reasons, we reject defendant’s confrontation clause claim.
2.     Denial of request for disclosure of photograph relied upon by gang officers
       Defendant contends that the trial court erred by denying his request for disclosure
of the July 6, 2007 photograph of him purportedly wearing an “S” belt buckle. He argues
the court abused its discretion and that the error violated his due process and
confrontation rights.
       a.     Proceedings in the trial court
       Outside the presence of the jury after both Menchaca and Rivera had revealed on
cross-examination that Menchaca had taken a photograph of defendant wearing the “S”
belt buckle but could not print it or produce it in court, defense counsel argued
defendant’s due process rights had been violated by allowing the police officer witnesses
to refer to “police resources,” including the photograph, without providing them to
defendant. He argued the police and prosecutor were “put[ting] in evidence of physical
items that they hide behind by hiding it in this overall police resource excuse.” The
prosecutor argued that the “protected information” in the Cal Gangs database “cannot be
disclosed. A court order is required, and a hearing would have to result where the lawyer
of the department would have to come out and argue the protected nature of the
information and whether or not it can be disclosed.”
       Defense counsel informed the court he had “obtained Cal Gangs printouts many
times.” He also noted the prosecutor had represented that he would not rely upon the
existence of a photograph of the belt buckle, but Vannatter had relied upon the
photograph as a basis for his opinion. Defense counsel requested that the court order the
police to produce the photograph.


                                             18
       The court denied the request, explaining: “You need to put into context this
evidence. This is evidence that was used by the expert to form his opinion of whether or
not the defendant was a gang member[.]” Counsel reminded the court that Menchaca also
testified regarding the photograph. The court continued: “Exactly. All of this, as I
admonished the jury, it is simply to be used not for the truth of the matter asserted, but to
determine the basis for the expert’s opinion. [¶] So you’re asking that the court order the
people to produce evidence that the expert used on which to base his opinion. [¶] At this
time I am denying that request. That is not appropriate.” Defense counsel added: “[I]t is
not only that, your honor. It is used so the defendant can properly cross-examine the
witness and produce impeachment type evidence to challenge the credibility of the
witnesses.” The court did not alter its ruling.
       In the presence of the jury, defense counsel continued his cross-examination of
Menchaca, who testified he took the photograph in question with a digital camera, then
loaded the photograph “into a law enforcement confidential database.” When defense
counsel asked the name of the database the prosecutor objected that it was privileged
information, citing Evidence Code section 1040. The court sustained the objection
without further inquiry. Menchaca testified he had last viewed the photograph in the
database “last . . . Tuesday or Wednesday.” Menchaca further testified he took the
photograph as defendant stood “[o]n the sidewalk,” “near his vehicle,” but declared,
“Once it goes into that database, it becomes confidential.”
       b.     Governing legal principles
       “Discovery is designed to ascertain the truth [citation] in criminal as well as in
civil cases.” (Jones v. Superior Court (1962) 58 Cal.2d 56, 58.) “‘Absent some
governmental requirement that information be kept confidential for the purposes of
effective law enforcement, the state has no interest in denying the accused access to all
evidence that can throw light on issues in the case, and in particular it has no interest in
convicting on the testimony of witnesses who have not been as rigorously cross-examined
and as thoroughly impeached as the evidence permits.’” (Id. at p. 59.) Accordingly, “The


                                              19
defendant generally is entitled to discovery of information that will assist in his defense or
be useful for impeachment or cross-examination of adverse witnesses. [Citation.] A
motion for discovery must describe the information sought with some specificity and
provide a plausible justification for disclosure.” (People v. Jenkins (2000) 22 Cal.4th
900, 953.) A showing that the defendant cannot readily obtain the information through
his or her own efforts will ordinarily justify disclosure of any unprivileged evidence or
information that might lead to the discovery of evidence that is reasonably likely to assist
the defendant in preparing his or her defense. (Hill v. Superior Court (1974) 10 Cal.3d
812, 817.)
       Evidence Code section 1040 provides a public entity with a privilege against
disclosure of “information acquired in confidence by a public employee in the course of
his or her duty and not open, or officially disclosed, to the public” where either disclosure
is prohibited by a federal or state statute or “[d]isclosure of the information is against the
public interest because there is a necessity for preserving the confidentiality of the
information that outweighs the necessity for disclosure in the interest of justice.” (Evid.
Code, § 1040, subds. (a), (b)(2).) Where the prosecution or police assert the privilege, a
criminal defendant has the burden of showing that there is a reasonable possibility that the
undisclosed information would be material on the issue of guilt. (People v. Walker
(1991) 230 Cal.App.3d 230, 238 (Walker).)
       “The official information privilege, once asserted, should not be sustained unless
the court is presented with a showing that the information sought to be protected is
covered by the privilege. There are, no doubt, circumstances where this is self-evident, or
nearly so. (See, e.g., [Walker, supra, 230 Cal.App.3d 230 [police surveillance location]].)
But if it is not, the party claiming the privilege must either show in open court why the
matter is privileged, or declare that doing so would compromise the privilege. If it
appears to the trial court, based on this representation, that the claim cannot be
determined in open court without ‘disclosure of the information claimed to be privileged,’
the court may call for that disclosure in camera, pursuant to [Evidence Code] section 915,


                                              20
subdivision (b).” (Torres v. Superior Court (2000) 80 Cal.App.4th 867, 873.) “[W]hen it
is the state which seeks to withhold information from a criminal defendant, the stakes are
particularly high; thus the court must ensure the process of assessing the state’s claim of
privilege affords the defendant due process.” (In re Marcos B. (2013) 214 Cal.App.4th
299, 308.) Thus, the defendant must be given an opportunity to propose questions to be
asked at an in camera hearing. (Ibid.) Before upholding the privilege, the trial court must
also provide the defendant an opportunity to demonstrate a need for the information that
may outweigh the public interest in nondisclosure. (Torres, at p. 874.)
       If the trial court upholds the privilege but determines that the privileged
information is material to the defense, it must “make such order or finding of fact adverse
to the public entity bringing the proceeding as is required by law upon any issue in the
proceeding to which the privileged information is material.” (Evid. Code, § 1042,
subd. (a); Hines v. Superior Court (1988) 203 Cal.App.3d 1231, 1234.) Sustaining the
privilege regarding material information without making such an order or finding adverse
to the public entity deprives the defendant of his fundamental right to cross-examine the
witness on a material issue, thereby violating the defendant’s federal constitutional right
of confrontation. (Hines, at p. 1235.)
       c.     The trial court erred by denying disclosure
       The photograph was undeniably material to the defense. Both Menchaca and
Vannatter relied upon its reported depiction of defendant wearing an “S” belt buckle as
evidence establishing that defendant was a member of the San Fer gang, which was in
turn relevant to the truth of the mental state elements of the gang enhancement
allegations. If the photograph did not depict defendant wearing the “S” belt buckle,
defendant could have used it to impeach Menchaca and diminish the credibility of
Vannatter’s opinion defendant was a member of the gang.
       In was not self-evident that the photograph of defendant, taken in a public location
with defendant’s cooperation, was “information acquired in confidence by a public
employee in the course of his or her duty and not open, or officially disclosed, to the


                                             21
public.” While law enforcement agencies may limit access to the Cal Gangs database and
some information in that database may indeed fall within the scope of the privilege, the
mere fact the photograph had been entered into that database did not transform it into
confidential information within the scope of the privilege provided by Evidence Code
section 1040. Neither the prosecutor nor any of the police officers presented the trial
court with a showing that the photograph was covered by the privilege, either in open
court or in camera. The trial court erred by sustaining the privilege in the absence of such
a showing.
       The trial court’s explanation that the photograph was merely basis evidence for the
expert’s opinion failed to consider that Menchaca testified to the existence and content
(defendant wearing an “S” belt buckle) of the photograph and the jury was never
instructed that it could not consider this testimony by Menchaca for its truth. Defense
counsel pointed that out to the court, yet the court failed to consider this critical point.
       The denial of disclosure of the photograph may have severely impaired
defendant’s ability to cross-examine Menchaca and Vannatter, thereby violating
defendant’s federal constitutional right to confront witnesses against him. If the
photograph did not depict defendant wearing the “S” belt buckle, defendant could have
used it to severely undermine Menchaca’s credibility regarding the entire 2007 police
contact with defendant. That 2007 contact was crucial to the prosecution’s proof of
defendant’s gang membership and, in turn, its proof of the gang enhancement allegations
because that was the only occasion on which defendant reportedly admitted he was a
member of the San Fer gang. Nonetheless, Menchaca’s report regarding that contact did
not mention defendants admission of gang membership or refer to the “S” belt buckle,
even though it included other statements by defendant and contained a section to describe
the suspect’s clothing. Rivera, Menchaca’s partner during the 2007 contact, did not hear
defendant admit gang membership and did not remember whether he was wearing an “S”
belt buckle, even though Rivera had viewed the “confidential” photograph of defendant in
the gang database a few days before he testified at defendant’s trial. The purported gang


                                               22
admission and belt buckle were critical factors logically tending to show defendant
belonged to the gang and expressly relied upon by Vannatter to support his expert opinion
regarding defendant’s membership. Although the officers tried to explain away these
omissions from the police report by saying that information would have been noted on an
F.I. card, the F.I. card from that contact was the only F.I. card pertaining to defendant that
the police did not produce at trial. They also admittedly made no effort to locate it in the
police department’s central records storage. Thus, the photograph was clearly material,
and its nondisclosure may have severely impaired defendant’s ability to cross-examine the
gang officers.
       Of course, the photograph may have depicted defendant wearing an “S” belt
buckle, just as the officers testified. Under the circumstances, the appellate record is
inadequate to permit a determination of prejudice under any standard or even whether the
error actually infringed upon defendant’s federal constitutional right to confront the
witnesses against him. The only just and reasonable approach to determining whether the
trial court’s erroneous acceptance of the privilege claim prejudiced defendant is to reverse
conditionally the findings on the gang enhancement allegations to allow the trial court to
properly assess the validity and effect of the prosecution’s Evidence Code section 1040
privilege claim. (People v. Reynolds (1982) 137 Cal.App.3d 1016, 1019; People v. Ruiz
(1992) 9 Cal.App.4th 1485, 1489–1490.) Although defendant seeks reversal of the entire
judgment, he has not explained why the effect of the error taints the jury’s verdicts on the
substantive charges or firearm findings. In our view, the effect of the error extends only
as far as the nature and purpose of the testimony of Vannatter and Menchaca, which was
to establish the truth of the gang enhancement allegations.
       Upon remand, the trial court must conduct a hearing, in camera if necessary, to
assess the privilege claim. If the prosecutor or police continue to refuse to produce the
photograph for the court to review, the true findings on the gang enhancement allegations
will remain reversed. If the prosecutor or police produce the photograph and it depicts
defendant wearing an “S” belt buckle as described in the police testimony at trial, the trial


                                             23
court shall reinstate the true findings on the gang enhancement allegations. If the
prosecutor or police produce the photograph and it does not depict defendant wearing an
“S” belt buckle as described in the police testimony at trial, the true findings on the gang
enhancement allegations will remain reversed.
3.     Remaining contentions
       Defendant contends that the cumulative effect of the two errors he raises requires
reversal. We reject this contention because we have concluded that the admission of the
gang injunction evidence was harmless and we are unable to assess whether any prejudice
resulted from failure to disclose the photograph and are conditionally reversing the gang
enhancement allegations.
       Defendant also initially contended the abstract of judgment incorporated errors,
but, as he concedes in his reply brief, the trial court corrected those errors during the
pendency of this appeal.




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                                       DISPOSITION
       The judgment is reversed conditionally with respect to the true findings on the
gang enhancement allegations. Upon remand the trial court is directed to conduct a
hearing regarding the July 6, 2007 photograph of defendant purportedly wearing an “S”
belt buckle about which Officers Menchaca and Rivera testified. If the prosecutor or
police continue to refuse to produce the photograph for the court to review, the true
findings on the gang enhancement allegations will remain reversed, but may be retried. If
the prosecutor or police produce the photograph and it depicts defendant wearing an “S”
belt buckle as described in the police testimony at trial, the trial court shall reinstate the
true findings on the gang enhancement allegations. If the prosecutor or police produce
the photograph and it does not depict defendant wearing an “S” belt buckle as described
in the police testimony at trial, the true findings on the gang enhancement allegations will
remain reversed, but may be retried. The judgment is otherwise affirmed.
       NOT TO BE PUBLISHED.


                                                    LUI, J.
We concur:


       CHANEY, Acting P. J.


       MOOR, J.*




        * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



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