Filed 5/18/16 P. v. Fierro CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068387
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF272573)
                   v.

MARTIN FIERRO,                                                                           OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
         John Hardesty, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd
Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                     INTRODUCTION
       Appellant Martin Fierro fired a single shot from a .22-caliber revolver while he
was driving his vehicle in Visalia, California. He struck a bicycle rider. A jury convicted
him of assault with a firearm (Pen. Code, § 245, subd. (a)(2)1; count 2) and found true
three special allegations: (1) that he committed the offense for the benefit of, at the
direction of, or in association with a criminal street gang (Pen. Code, § 186.22,
subd. (b)(4)); (2) that he personally and intentionally discharged a firearm from a motor
vehicle with the intent to inflict great bodily injury and did inflict great bodily injury
(§ 12022.55); and (3) that he personally caused great bodily injury (§ 12022.7). The
jurors were hung regarding the other count of premeditated attempted murder. A mistrial
was declared regarding count 1. The prosecutor offered to dismiss count 1 in exchange
for a waiver of appellate rights, and appellant agreed.
       As an initial matter, we determine appellant did not give a knowing and intelligent
waiver of his appeal rights. Because the People did not receive the benefit of the bargain,
we also determine that the prosecution may reinstate the charges on count 1.
       Regarding appellant’s two primary issues on appeal, we find his first contention
meritorious. The jury found true that appellant fired a gun from a motor vehicle with the
specific intent to inflict great bodily injury (§ 12022.55). The parties agree, as do we,
that instructional error occurred for this enhancement. We find this error prejudicial,
requiring resentencing of count 2. However, we reject appellant’s other claim that the
Fifth and Sixth Amendments to the United States Constitution were violated when the
prosecution’s gang expert opined that appellant was a gang member. We vacate the
sentence on count 2 and remand for further proceedings.




1      All future statutory references are to the Penal Code unless otherwise noted.


                                              2.
                                      BACKGROUND
I.     Trial Facts.
       A.     Prosecution’s evidence.
              1.      The shooting.
       On August 31, 2012, Gilbert Aldana was shot once in his chest under his right
nipple as he rode his bicycle in Visalia. Aldana did not see his shooter. An eyewitness
informed police that the shooter was driving a faded blue Jeep Cherokee and had fired a
revolver out the window. Based on nearby surveillance video, police confirmed the
description of the suspect’s vehicle and a single gunshot was heard on the recording.
       Dirk Alfano, a Visalia police officer, observed a vehicle driving in Visalia that
matched the suspect’s Cherokee. Alfano stopped the vehicle and appellant was the sole
occupant. Appellant was taken into police custody when a .22-caliber revolver was
observed in the vehicle. The revolver held a total of eight cartridges, five of which were
unfired and three which had been fired. No gang indicia was observed in appellant’s
vehicle. Gunshot residue was later found on both the inside and outside of the driver’s
side door of the vehicle. Police showed the revolver to the eyewitness, who was “pretty
confident” it was the one involved in Aldana’s shooting.
       When he was shot, Aldana was wearing blue shoes. He was hospitalized for five
days and underwent surgery. At trial, he testified he did not know appellant, he could not
recall ever meeting appellant, and he had no problems with appellant. Aldana knew of no
reason why appellant would shoot him. No evidence was introduced at trial establishing
Aldana as a gang member.
              2.      Appellant’s interview with law enforcement.
       A detective interviewed appellant after his arrest, which was recorded and played
for the jury. Appellant was advised of his rights under Miranda v. Arizona (1966) 384
U.S. 436 (Miranda). The detective asked questions regarding appellant’s actions before



                                             3.
the shooting, and advised him that he was a suspect in an attempted homicide. The
following exchange then occurred regarding appellant’s gang association:

             “[DETECTIVE]: Okay. And—and you’re obviously—if you’re not
       a—if you’re not down as a Southerner you—you obviously associate with
       [Sureños].

              “[APPELLANT]: I ain’t no [Sureño].

              “[DETECTIVE]: Hmm?

              “[APPELLANT]: I don’t associate with [Sureños].

              “[DETECTIVE]: Okay. Well, you’re not a [Norteño] either. Are
       you?

              “[APPELLANT]: That’s who I associate with.

              “[DETECTIVE]: You associate with Northerners?

              “[APPELLANT]: Yes.”
       Appellant said he did not know Aldana and he did not know why he shot him.
Appellant alluded to “shootings” that had occurred earlier at his house, and the detective
asked if appellant thought Aldana was involved. Appellant said, “Dunno [sic]. Maybe. I
don’t know.” Appellant stated he only fired once while Aldana was riding a bicycle on
appellant’s left side, and he did not know what was going through his mind when he shot.
Appellant denied that Aldana had any weapons or “came at” him with anything. He said
he did not see his shot hit Aldana, and denied saying anything before pulling the trigger.
       The detective noted that appellant’s revolver had three spent shell casings.
Appellant denied firing the other two rounds that day, claiming he did not know when
they were fired. When pressed why he shot Aldana, appellant stated, “I just thought he
could’ve been somebody. I don’t know.” The detective again asked if appellant shot
Aldana because Aldana was the person who “firebombed” and shot at appellant’s house.
Appellant said, “I don’t know. Maybe.”



                                            4.
              3.     The gang evidence.
       In addition to being a percipient witness, the arresting officer, Alfano, testified as
the prosecution’s gang expert. At the time of his testimony, he had been part of the gang
suppression unit for almost five years and a police officer for over 12 years. Alfano was
familiar with field identification (FI) cards, which are used by officers to record
information regarding a suspected gang member, including biological data, dress styles,
tattoos, vehicle types, and any associates. FI cards are used in criminal investigations,
consensual encounters, and traffic stops.
       To establish the gang’s primary activities, Alfano reviewed two previous cases
involving the conviction of two different Norteño gang members. Alfano said he was
familiar with appellant based on his review of documents, reports, FI cards, and speaking
with other officers. Alfano stated that appellant had prior gang-related contacts with law
enforcement. He went through the extensive list of evidence which he felt established
appellant as a gang member.
       In July 1997, a Visalia police officer reported a crime involving appellant in
association with two other individuals, one of whom was a “documented” Norteño gang
member. Appellant was a juvenile.
       In November 1998, a crime report was generated by a Visalia police officer in
which appellant was associating with two other individuals, one of whom was a
documented Norteño gang member. Appellant was a juvenile.
       In March 1999, appellant was contacted by police with two other individuals
during the investigation of a crime. The two associates were both documented Norteño
gang members.
       In January 2002, a report was created regarding appellant and another individual
trespassing in a vacant residence. The other individual was a documented Norteño gang
member.



                                              5.
       In October 2006, a field interview was conducted by a Visalia police officer
following reports that gang members “were congregating.” According to the field
interview report, appellant admitted to being “a Northern gang member.” Alfano said it
was “very important” for officers to note gang admissions on FI cards.
       In June 2009, an officer made contact with appellant and another documented
Norteño gang member “during a gang saturation detail.” Appellant listed himself as “a
Northerner” when he was booked into county jail.
       In November 2009, an officer made contact with appellant and another
documented Norteño gang member.
       In August 2012, appellant and his family were victims of a shooting directed at
their residence. Alfano believed the shooting could show appellant’s gang affiliation.
Alfano explained it is not common for someone without gang ties to be a victim of shots
fired at their house.
       Alfano reviewed five “classification questionnaires” prepared when appellant was
booked into county jail in June 2009, November 2009, June 2010, June 2012, and
September 2012. Alfano explained that part of each form is filled out by the intake
deputy and a portion is completed by the person being booked into jail. In each of these
five bookings, the intake deputy listed appellant as either a “northern associate” or a
“Northerner.” In four of these bookings, appellant himself wrote that he associates with
“Northerners” but he did not identify any known enemies on three of the forms. On a
form in 2012, appellant circled the word “gang member” and wrote the word “North” on
it.
       Alfano noted a difference exists “between associating and, actually, being a gang
member.” He opined that appellant was a Norteño gang member based on appellant’s
past admission of being a gang member to a police officer, the classification
questionnaires when appellant was booked into jail, his association “on numerous
occasions” with other Norteño gang members, and his involvement in gang-related crime.

                                             6.
       Based on a hypothetical that matched the facts of the case, Alfano opined that the
commission of this crime benefitted a criminal street gang. He believed this shooting
could exercise control over the gang’s territory, which would cause fear. In addition, this
crime would gain praise for appellant with his fellow gang members.
       The prosecutor asked Alfano if a “Northerner” would be allowed under the gang’s
hierarchy to shoot at someone who was wearing blue shoes. Alfano said it depended on
the circumstances but noted where this shooting took place it would be “very
uncommon” for a Norteño gang member not to do anything if a person was wearing blue
shoes in the gang’s territory. Alfano also opined that even if the victim was not a rival
gang member, the shooting would benefit the gang by causing even more fear in the
community.
       On cross-examination, Alfano admitted he was not aware of appellant being
“jumped into” any gang, he was not aware that any of appellant’s family members were
gang members, and he was not aware that appellant had ever been charged for
committing a crime for the benefit of a criminal street gang. Alfano was not aware of any
reliable source naming appellant as a gang member, he did not know if appellant had any
tattoos, he was not aware of appellant ever being identified as having gang clothing, and
he was not aware of appellant being in, or possessing, any gang photographs.
Appellant’s cell phone did not have any gang monikers in the contacts, and it contained
no photographs that were gang related. Alfano was not aware of any gang writings found
associated with appellant, including letters to or from gang members, and appellant had
no known gang moniker attached to him. Appellant was not in possession of any known
“tagging tools” or materials for graffiti. Alfano had no evidence that appellant belonged
to a particular clique or subset of the Norteño gang. Alfano had never encountered
someone in the streets who told him that appellant was a gang member. Appellant was
not known to possess anything that could be considered “gang music.”



                                             7.
       Alfano was presented with a photograph attached to the 2006 field identification
report which Alfano had reviewed earlier in his testimony. The photograph showed
appellant wearing a white shirt with blue lettering across the chest while standing next to
a known Norteño gang member. Despite the photograph showing appellant wearing a
shirt with blue lettering, Alfano believed it was possible appellant shot Aldana because he
was wearing blue shoes.
       B.     Defense’s evidence.
       Three of appellant’s relatives testified on his behalf. Appellant was not known to
wear gang clothing, he did not possess or wear red bandanas, he did not listen to gang
music, he did not have gang artwork, and he did not have gang photographs. Appellant
did not have a reputation as a gang member.
       Appellant’s nephew explained that appellant shared a room with him. Someone
had shot at their home and threw “little firebombs” at appellant’s vehicle prior to
Aldana’s shooting. Appellant’s nephew informed police that he thought a Norteño gang
member was responsible after a misunderstanding occurred at school in which Norteño
gang members mistakenly believed the nephew was a Sureño.
       Michael Hurtado, a former gang member, testified as a gang expert for the
defense. He reviewed all of the discovery in the case and opined that appellant was not a
gang member. Hurtado discounted the 2006 FI card as “sketchy” in which appellant
admitted being a gang member because there was “no direct quote of what was said.”
Hurtado also found it contradictory that appellant was photographed wearing a shirt with
blue lettering.
       Hurtado testified a difference exists between people who call themselves Norteños
versus people who call themselves Northerners. Many people living in an area with gang
members will consider themselves “Northerners” without committing to the gang because
they grew up and went to school with the gang members. In contrast, a person who is a
Norteño is committed to the gang. A Northern associate will not have tattoos. Many

                                             8.
gang members will have a gang moniker and will possess gang music. It is common for a
gang member to possess gang-related photographs.
       Hurtado believed the shots fired at appellant’s house, done by a suspected
Norteño, showed that appellant was not a Norteño because that would be a “major
violation.” Hurtado also noted, “If you do something wrong, [the shooting] would be a
severe punishment by their own people.”
       Hurtado believed “association” with gang members could be a proper factor for
determining whether an individual is a gang member, but situations exist where a person
associates with gang members without being a gang member. Hurtado opined that
appellant was not a gang member but “just an associate.” Hurtado did not believe that
appellant had “committed” to the gang but lived in an area surrounded by gang members.
       Hurtado believed this shooting was not done to benefit a gang. Appellant was not
a gang member, gang members do not target civilians, and no gang slurs or “colors” were
involved.
II.    Mistrial And Sentencing.
       The jury found appellant guilty of assault with a firearm (count 2) and found true
three special allegations: (1) that he committed the offense for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(4)); (2) that
he personally and intentionally discharged a firearm from a motor vehicle with the intent
to inflict great bodily injury and did inflict great bodily injury (§ 12022.55); and (3) that
he personally caused great bodily injury (§ 12022.7). The jury could not reach a verdict
regarding attempted murder (count 1), and a mistrial was declared.
       The following day, August 28, 2013, appellant appeared in court for the purpose
of considering the prosecution’s offer to dismiss count 1. The following exchange
occurred:




                                              9.
              “[THE PROSECUTOR]: .… The people are prepared to dismiss
       Count 1 and continue to the sentencing on the verdict as found by the jury
       in exchange for a waiver of appellate rights.

              “THE DEFENDANT: That’s fine.

              “THE COURT: Sir, you’re waiving your appellate rights, then?

              “THE DEFENDANT: Yes.

              “THE COURT: That’s been explained to you by your attorney?

              “THE DEFENDANT: Yes.

              “THE COURT: Okay. Then Count 1 is being dismissed?

              “[THE PROSECUTOR]: Yes, your Honor.”
       On October 7, 2013, the parties met to discuss sentencing, and appellant asked the
court to replace his attorney. Upon denying his request, the court advised appellant that
he could file an appeal after sentencing, and a different attorney would be appointed to
represent him.
       On October 10, 2013, the parties met for sentencing. The court imposed a term of
15 years to life for count 2. Various fees and fines were imposed. At the conclusion of
the sentencing hearing, the court informed appellant that he had 60 days to file a notice of
appeal if he wished to appeal the judgment and the sentence. The court informed
appellant that the Court of Appeal would appoint an attorney to represent him. The
prosecution did not object to these statements.
                                      DISCUSSION
I.     A Knowing And Intelligent Waiver Of Appellate Rights Is Not Present.
       Appellant contends his waiver was unenforceable because he did not give a
voluntary, knowing and intelligent waiver of his right to appeal.




                                            10.
       A.     Standard of review.
       “To be enforceable, a defendant’s waiver of the right to appeal must be knowing,
intelligent, and voluntary. [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 80.)
An appellate court reviews de novo whether a waiver was valid. (Ibid.)
       B.     Analysis.
       A “waiver” is an abandonment of a known right or privilege, or its intentional
relinquishment. (People v. Rosso (1994) 30 Cal.App.4th 1001, 1006 (Rosso).) To
determine whether an intelligent waiver occurred, the particular facts and circumstances
of each case must be examined, including the defendant’s background, experience, and
conduct. (Ibid.) The party claiming the existence of the waiver bears the burden to prove
it with evidence that does not rely on speculation. Cases should be resolved against the
finding of a waiver when there is doubt. (Ibid.)
       Appellant raises numerous arguments to establish why he may maintain the
present appeal. We find compelling that this record does not demonstrate a knowing and
intelligent waiver of his appellate rights.
       Rosso, supra, 30 Cal.App.4th 1001, is instructive. The defendant pleaded guilty in
a negotiated plea agreement. Before his plea, the trial court advised him of his
constitutional rights, but there was no mention of appellate rights. (Id. at pp. 1005-1006.)
The trial court asked the defendant if he had discussed his rights with his attorney, which
the defendant answered in the affirmative. The trial court asked if the defendant waived
and gave up his constitutional rights, and his right to appeal. The defendant said he
waived them. No further discussion occurred regarding the defendant’s appellate rights.
(Id. at p. 1006.) The Court of Appeal refused to find a waiver of appellate rights where
there was neither a written advisement and waiver of rights, nor an oral advisement
preceding the oral waiver. (Id. at p. 1007.)
       Here, as in Rosso, this record does not establish any advisement of appeal rights.
The trial court offered no advisement regarding the rights appellant was giving up and

                                               11.
this record does not contain a written waiver form. We have no way of knowing what, if
anything, was said to appellant by his counsel. While a purported waiver occurred, we
cannot say that the waiver was knowing and intelligent based on this record.
       Respondent contends appellant’s waiver was valid because he was “not new to the
criminal justice system” given his juvenile record and a prior conviction of felony
possession of a controlled substance. Respondent relies on People v. Vargas (1993) 13
Cal.App.4th 1653 (Vargas) to establish the general waiver was knowing and intelligent.
This reliance is misplaced.
       In Vargas, the defendant expressly waived his right of appeal as part of a
negotiated plea agreement. He signed a written change of plea form which contained a
general waiver of appellate rights, and the court asked the defendant if he waived his
rights to appeal. (Vargas, supra, 13 Cal.App.4th at p. 1657.) On appeal, the Vargas
court noted that the defendant’s actions during the proceedings supported a finding that
he gave a knowing, intelligent and voluntary waiver. The defendant had represented
himself at times during the prosecution of the case. He had submitted various motions,
including for a continuance, discovery, to exclude evidence, and to dismiss, and he made
numerous objections during the presentation of the prosecution’s case. The defendant
successfully negotiated the plea agreement with the prosecutor, which resulted in a very
favorable outcome. (Id. at p. 1660.) Vargas noted that the court advised the defendant of
the waiver of the right to appeal, and the defendant separately signed a change of plea
form which indicated he was waiving his right to appeal. In addition, the defendant was
able to consult with counsel who, although not officially representing him, looked over
the plea agreement and was present when the prosecutor went over it. (Id. at p. 1661.)
Vargas held that the defendant’s waiver was knowing, intelligent and voluntary. (Ibid.)
       Here, although appellant had some prior experience with the criminal justice
system, some of that experience occurred when he was a juvenile. Unlike in Vargas,
appellant did not represent himself in this criminal prosecution, he did not negotiate his

                                            12.
own deal with the prosecutor, and he did not sign a written change of plea agreement.
This record does not demonstrate the level of sophistication which the defendant in
Vargas exhibited. Vargas is distinguishable.
       Based on this record, we cannot say that appellant gave a knowing and intelligent
waiver of his appellate rights. Accordingly, we will review appellant’s claims regarding
count 2.
              1.     Count 1 may be reinstated at the prosecution’s election.
       Respondent contends if appellant is permitted to obtain appellate review of his
claims regarding count 2, this matter must be remanded regarding count 1 to put the
parties back in their original position. We agree.
       Contract principles are applied regarding agreements between the prosecution and
a criminal defendant. (See People v. Paredes (2008) 160 Cal.App.4th 496, 506-507 [plea
agreement].) A promise that is part of the inducement or consideration must be fulfilled
in order to have a valid agreement. (Id. at p. 507.) When the agreement cannot be
fulfilled, the parties should be returned to their original positions. (People v. Superior
Court (Sanchez) (2014) 223 Cal.App.4th 567, 577.)
       Here, the parties’ agreement regarding count 1 cannot be fulfilled because
appellant’s waiver of appellate rights was not valid. Accordingly, upon remand the
prosecution may, if it so chooses, reinstate the charges in count 1. In that event, the trial
court shall conduct further proceedings as may be appropriate.
II.    The Jury’s True Finding Regarding Section 12022.55 Must Be Vacated.
       Appellant asserts that the trial court prejudicially erred by failing to instruct the
jury regarding the specific intent required under section 12022.55. In the alternative, he
claims his counsel rendered ineffective assistance if this issue is deemed forfeited on
appeal. He submits that the judgment must be reversed as to the true finding and his case
remanded for resentencing.



                                              13.
       A.      Background.
               1.     The information.
       On the first day of trial, the court read the information to the jury. Regarding
count 2, the information alleged, in part, that appellant “with the intent to do so, inflicted
great bodily injury and death on [Aldana], as a result of discharging a firearm from a
motor vehicle in violation of … section 12022.55.”
               2.     Jury instructions.
       The court instructed the jury with CALCRIM No. 252 regarding the union of act
and intent. The jury was instructed that assault with a firearm, and the allegations “of
inflicting great bodily injury and the use of a firearm” required a general intent. In
contrast, the jury was instructed that attempted murder and the allegation of a criminal
street gang required a specific intent or mental state. To find appellant guilty of
attempted murder or the special allegation of a criminal street gang, the jury was told that
appellant must not only have intentionally committed the prohibited act, but must have
done so with a specific intent. Regarding attempted murder, this was later defined as a
specific intent to kill the victim.
       The trial court failed to instruct the jury regarding the elements necessary to find
true the special allegation under section 12022.55.
               3.     Closing arguments.
       During closing arguments, the prosecutor informed the jury that appellant was
guilty of attempted murder because he slowed down, aimed directly at Aldana, and shot
him in the chest. The prosecutor noted that appellant never denied trying to hit Aldana
during his interview with the detective, and never said he did not intend to hit him. The
prosecutor contended it would be “a fantasy” if the defense suggested that appellant did
not aim. The prosecutor asserted appellant intended to cause the damage he inflicted.
The prosecutor contended appellant acted with deliberation and premeditation. It was
argued that appellant was a gang member based on his own admissions, booking

                                             14.
statements, and associations. The shooting was gang motivated because Aldana wore
blue shoes, the gang would obtain more stature, and appellant would look good to his
fellow gang members. The prosecution said count 2 did not apply in this case, and the
jury was asked to focus on the attempted murder. Regarding the other enhancements, the
prosecutor simply directed the jury to review them when they deliberated.
       Appellant’s defense counsel argued it was ridiculous to assume someone would
identify Aldana as a Sureño gang member because he was wearing blue shoes while
riding a bicycle. Defense counsel argued this was not a gang shooting because no gang
slurs were yelled, no gang colors were involved, and appellant was alone in his vehicle.
Appellant was not a gang member because he had no moniker, did not tag, he had never
been charged with committing a crime for the benefit of a criminal street gang, he was
not in gang photos, and he did not have a reputation as a gang member. It was argued
that appellant shot Aldana because appellant was angry after someone shot and
firebombed his house, and he must have believed Aldana was involved. It was argued
there was no intent to kill because appellant only fired once but had more bullets loaded
in his gun. With only a .22-caliber handgun, the defense asserted appellant would have
fired more than one shot if he intended to kill. Appellant said in his interview with the
detective that he did not know if he hit Aldana when he sped off. Defense counsel urged
the jury to find appellant guilty of assault with a firearm but not attempted murder.
       During final summations, the prosecutor said the jury should find appellant also
guilty of count 2, but he was guilty of count 1, attempted murder.
              4.     The verdict form.
       The verdict form for count 2 asked the jury, in part, whether appellant “personally
and intentionally discharged a firearm, a Handgun, from a motor vehicle with the intent
to inflict great bodily injury and did inflict great bodily injury, in Violation of Penal Code
[section] 12022.55.” The jury found this allegation true.



                                             15.
       B.     Standard of review.
       A federal constitutional error is present when instructional error occurs regarding
an enhancement that increases the sentence for the underlying crime beyond its statutory
maximum. (People v. Sengpadychith (2001) 26 Cal.4th 316, 327.). However, it is a
question of state law when instructional error occurs for an enhancement which does not
increase a life term for the underlying offense but, rather, prescribes the minimum period
the defendant must serve before becoming eligible for parole. (Ibid.)
       C.     Analysis.
       In count 2, appellant was convicted of assault with a firearm, which carries a
sentence in state prison of two, three or four years. (§ 245, subd. (a)(2).) As is relevant
here, section 12022.55 imposes a sentence enhancement “in the state prison for 5, 6, or
10 years” for “any person who, with the intent to inflict great bodily injury or death,
inflicts great bodily injury … as a result of discharging a firearm from a motor vehicle”
while committing a felony or attempted felony. Section 12022.55 requires a finding of
specific intent because the defendant must intend to commit a further act or achieve an
additional consequence beyond the proscribed act. (See People v. Hood (1969) 1 Cal.3d
444, 456-457 [defining “general” and “specific” intent].)
       The parties agree, as do we, that the trial court failed to instruct the jury regarding
the elements necessary to find true the enhancement allegation pursuant to section
12022.55. (See People v. Breverman (1998) 19 Cal.4th 142, 154 [trial court must instruct
the jury on the relevant principles of law].) Moreover, the parties agree, as do we, that
the trial court erroneously said a general intent was required for this allegation. Because
instructional error occurred, we examine prejudice.
       Respondent contends the state standard for prejudice should be applied here.
Respondent argues the enhancement pursuant to section 12022.55 “merely fixed
appellant’s minimum punishment, and had no upward impact upon the life term he



                                             16.
earned by committing his assault for the benefit of his street gang” pursuant to section
186.22, subdivision (b)(4)(B). We disagree.
       A sentence enhancement under section 186.22, subdivision (b), does not impose
an indeterminate sentence unless certain enumerated felonies are violated, which do not
include assault with a firearm. (§ 186.22, subd. (b)(1)-(4).) An indeterminate sentence
with a minimum of 15 years is imposed when section 12022.55 is violated and the jury
determines that the defendant committed the underlying felony for the benefit of, at the
direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(4)(B).)
       The true finding on section 12022.55, coupled with the true finding on section
186.22, subdivision (b)(4), increased appellant’s sentence for the underlying crime
beyond its statutory maximum. Without the true finding on section 12022.55, appellant
would not have received an indeterminate sentence under section 186.22, subdivision
(b)(4)(B). Accordingly, the instructional error regarding section 12022.55 must be
analyzed under the federal standard of Chapman v. California (1967) 386 U.S. 18
(Chapman). (People v. Sengpadychith, supra, 26 Cal.4th at p. 327.) Under this standard,
the People have the burden to prove beyond a reasonable doubt that the error did not
contribute to the jury’s verdict. (Id. at p. 320.)
       Appellant asserts that a properly instructed jury would have been unable to agree
that he held the specific intent to inflict great bodily injury. Respondent argues that any
instructional error was harmless, contending the evidence was overwhelming that
appellant intended to inflict great bodily injury. We find appellant’s contentions
persuasive and reject respondent’s arguments.
       During closing arguments, neither the prosecutor nor defense counsel discussed
the enhancement under section 12022.55, whether it applied to the case, or how the jury
should view the facts relative to its elements. Appellant’s counsel conceded that
appellant was guilty of assault with a firearm, but he argued that appellant had no intent
to kill. Defense counsel’s admission of guilt regarding the assault charge was done in a

                                              17.
clear effort to avoid a guilty verdict for attempted murder. However, without any
instruction from the court regarding the enhancement for section 12022.55, and without
any argument from counsel regarding its application or elements, it appears very possible
the jury found appellant guilty of count 2, and found true the enhancement under section
12022.55, simply because defense counsel urged the jury to find appellant guilty of
assault with a firearm.
       We are mindful that Aldana was shot in his chest. However, we disagree with
respondent that the evidence was overwhelming that appellant had the specific intent to
inflict great bodily injury. Appellant used a small caliber handgun. He fired a single shot
while he was driving. When discovered, appellant’s handgun was loaded with five more
bullets. During his postarrest interview, appellant was asked if he shot Aldana because
appellant thought Aldana had firebombed his house. Appellant said, “Dunno [sic].
Maybe. I don’t know.” Appellant said he did not see his shot hit Aldana. The jury was
instructed that conviction for attempted murder required a finding of specific intent to
kill. It is noteworthy that the jurors were unable to reach a verdict regarding attempted
murder based on these same facts.
       Respondent asserts no prejudice occurred because the trial court read the
information to the jury on the first day of trial and the verdict form provided the jury with
the correct definition of law regarding the enhancement under section 12022.55. We are
not convinced.
       The information was read to the jury approximately eight calendar days before the
verdict was rendered. Although the verdict form contained the appropriate language
regarding the enhancement under section 12022.55, we do not think this was sufficient to
overcome the deficiencies appearing in this record. The court failed to provide any
instruction regarding the enhancement under section 12022.55. The court stated in error
that only a general intent was necessary for the allegation under section 12022.55.
Defense counsel admitted appellant’s guilt regarding the base charge in count 2. There

                                             18.
was an absence of any comment from either counsel during closing arguments regarding
this enhancement.
       In light of the jury’s inability to reach a verdict regarding attempted murder, we
cannot say beyond a reasonable doubt that the instructional error did not contribute to the
jury’s true finding regarding the special allegation under section 12022.55. (People v.
Sengpadychith, supra, 26 Cal.4th at p. 320.) Accordingly, the true finding regarding
section 12022.55 is vacated. Appellant shall be resentenced for count 2.

III.   Prejudice Did Not Result From Admission Of The Jail Classification Intake
       Forms Or The Gang Expert’s Use Of Hearsay Evidence.
       Based on the Fifth and Sixth Amendments, appellant argues the judgment must be
reversed regarding the gang enhancement allegation which the jury found true. He
further contends his trial counsel rendered ineffective assistance if his constitutional
claims are deemed forfeited on appeal.
       A.     Standard of review.
       We apply the abuse of discretion standard when reviewing the trial court’s
admission of expert testimony. (People v. Valadez (2013) 220 Cal.App.4th 16, 29.) We
apply the de novo standard of review for claims implicating federal constitutional rights
such as the Confrontation Clause. (People v. Seijas (2005) 36 Cal.4th 291, 304.)
       B.     Analysis.
       Appellant contends the admissions he made on jail classification intake forms
were improperly introduced against him at trial in violation of Miranda. He also asserts
the prosecution’s gang expert relied upon other out-of-court statements to prove his gang
affiliation, which was barred by the Sixth Amendment under Crawford v. Washington
(2004) 541 U.S. 36 (Crawford).
              1.     No prejudice resulted from the jail intake interviews.
       In People v. Elizalde (2015) 61 Cal.4th 523, our Supreme Court held that
correctional officers are permitted to ask routine booking questions regarding gang


                                             19.
affiliations for institutional security purposes, but responses or admissions to such
questions are not admissible against the defendant in the criminal trial in the absence of
Miranda warnings. (People v. Elizalde, at pp. 540-541.)
       Here, appellant provided information about his gang affiliation as part of various
jail booking intake procedures. This record does not establish that he received Miranda
warnings prior to those admissions. Thus, the unadmonished statements made during the
classification interviews were inadmissible at his trial. (People v. Elizalde, supra, 61
Cal.4th at p. 540.) Consequently, we must analyze the prejudicial impact.
       The federal standard of review for prejudice under Chapman is used when a
defendant’s statements are obtained in violation of the Fifth Amendment and admitted
against him or her. (People v. Elizalde, supra, 61 Cal.4th at p. 542.) This standard
requires the People “‘to prove beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.’ [Citation.]” (Ibid.)
       Here, appellant’s gang association was established through his own admission
made to the detective following this crime. Appellant received Miranda warnings, was
told he was a suspect in an attempted homicide, and was asked if he associates with
Sureños. He immediately said, “I ain’t no Sureño” and “I don’t associate with Sureños.”
The interviewing detective said, “Okay. Well, you’re not a [Norteño] either. Are you?”
Appellant answered, “That’s who I associate with.” Appellant said, “Yes” when the
detective confirmed he associates with Northerners.
       A sentence enhancement imposed under section 186.22, subdivision (b), does not
require a finding that the defendant is an active member of a criminal street gang. (In re
Ramon T. (1997) 57 Cal.App.4th 201, 206-207.) Pursuant to CALCRIM No. 1401, the
jury was instructed that the People need not prove that appellant is an active or current
member of a criminal street gang in order to find true the special allegation under section
186.22, subdivision (b).



                                             20.
       Based on appellant’s admission that he associates with the Norteño gang, it is
beyond a reasonable doubt that the erroneous introduction of jail classification intake
forms was not prejudicial in this case.

              2.     Appellant forfeited his Crawford challenge and no prejudice
                     exists even if this claim was not forfeited.
       Appellant contends that Alfano’s opinion that he was a “Norteño gang member or
associate whose acts benefited the gang” was based entirely on hearsay. Appellant
asserts that Alfano had no first-hand or direct evidence of his gang affiliation and Alfano
relied exclusively upon documents, reports and a FI card to reach his opinion. Appellant
argues that his Sixth Amendment right to confrontation was violated when the hearsay
evidence from police sources was admitted.
       As an initial matter, appellant concedes he failed to object in the trial court on
Sixth Amendment confrontation grounds to exclude Alfano’s testimony. Appellant’s
failure to so object forfeited this challenge on appeal. (People v. Redd (2010) 48 Cal.4th
691, 730 [failure to raise Sixth Amendment objection in the lower court forfeits that
claim on appeal].) In any event, even assuming appellant preserved the issue for appeal,
it is without merit due to a lack of prejudice.
       The Sixth Amendment guarantees a criminal defendant the right to confront any
witnesses against him or her. (Crawford, supra, 541 U.S. at p. 42; People v. Dungo
(2012) 55 Cal.4th 608, 612 (Dungo).) The Confrontation Clause is violated when
testimonial hearsay evidence is admitted from a declarant who is unavailable to testify
unless the defendant had a prior opportunity for cross-examination. (Crawford, supra,
541 U.S. at pp. 59, 68.) Crawford did not provide a comprehensive definition of what
qualifies as “testimonial” but it noted it applied “at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.
These are the modern practices with closest kinship to the abuses at which the
Confrontation Clause was directed.” (Id. at p. 68.) A criminal defendant’s judgment


                                             21.
must be reversed when a defendant’s confrontation rights under the Sixth Amendment are
violated unless the prosecution can show that the error was harmless beyond a reasonable
doubt. (People v. Rutterschmidt (2012) 55 Cal.4th 650, 661.)
       The California Supreme Court has established “two critical components” to
determine if an out-of-court statement is testimonial: “First, to be testimonial the
statement must be made with some degree of formality or solemnity. Second, the
statement is testimonial only if its primary purpose pertains in some fashion to a criminal
prosecution. The high court justices have not, however, agreed on what the statement’s
primary purpose must be.” (Dungo, supra, 55 Cal.4th at p. 619.)
       The California Supreme Court is currently deciding whether an expert’s reliance
on testimonial hearsay to form an opinion violates a defendant’s Sixth Amendment right
to confrontation. (See People v. Sanchez (2014) 223 Cal.App.4th 1, review granted May
14, 2014, S216681; People v. Archuleta (2014) 225 Cal.App.4th 527, review granted
June 11, 2014, S218640.)
       We need not analyze whether or not the various documents, the police reports and
the FI card which Alfano reviewed were testimonial so as to implicate appellant’s Sixth
Amendment rights of confrontation. Even if we presume, without so deciding, that this
hearsay information was testimonial, appellant’s association with the Norteño gang was
clearly established through his own admission to the interviewing detective.
       Moreover, expert opinion testimony is proper regarding the culture and habits of
criminal street gangs. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) An expert may
generally provide opinion testimony based on hypothetical questions wherein the expert
assumes the truth of the facts. (Id. at p. 618.) “Such a hypothetical question must be
rooted in facts shown by the evidence, however. [Citations.]” (Ibid.) An adequate
foundation is laid for a police officer to testify as a gang expert if their opinions are based
on personal discussions with and observations of gang members, information obtained
from other officers, and a review of department files. (People v. Olguin (1994) 31

                                              22.
Cal.App.4th 1355, 1370.) A gang expert may opine regarding a defendant’s possible
“motivation for entering rival gang territory and his likely reaction to language or actions
he perceived as gang challenges. [Citations.]” (People v. Ward (2005) 36 Cal.4th 186,
210.)
        Here, Alfano testified regarding his years of general police training, his
specialized training in the gang suppression unit, his personal experience and knowledge
regarding criminal street gangs in the county, how the gangs are organized, how someone
joins a gang, the gang rivalries, the importance of controlling gang territory, the use of
gang violence to control territory, and the specific rivalry between the Norteño and
Sureño gangs. He had spoken with members of the Norteño gang, he had investigated
over 60 cases in which a Norteño gang member had been involved, and he was familiar
with the areas in Visalia which the Norteño gang claimed. Alfano opined that this
shooting was done to benefit a criminal street gang through the use of violence to control
a certain area of town and instill fear in others.
        Based on appellant’s own admission that he was an associate of the Norteño gang,
it is beyond a reasonable doubt that exclusion of the various police documents, records
and the FI card would not have affected the outcome of the trial. Accordingly, the jury’s
true finding will not be vacated that appellant committed the assault with a firearm for the
benefit of, at the direction of, or in association with a criminal street gang in violation of
section 186.22, subdivision (b)(4).2
                                       DISPOSITION
        The sentence is vacated and the matter is remanded to the trial court. Regarding
count 1, the prosecution may, if it so chooses, reinstate the charges and the trial court
shall conduct further proceedings as may be appropriate. Regarding count 2, the jury’s

2       Because prejudice did not occur, we will not analyze appellant’s contention that
his trial counsel rendered ineffective assistance in not raising a Sixth Amendment
challenge in the trial court.


                                              23.
true finding is vacated regarding Penal Code section 12022.55. Appellant shall be
resentenced accordingly.
                                                              _____________________
                                                                    LEVY, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
FRANSON, J.




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