Filed 1/23/18

                          CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                  E066299

v.                                                 (Super.Ct.No. FWV1600421)

HECTOR MARTINEZ,                                   OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown,

Judge. Affirmed in part; reversed in part.

        Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant

and Appellant.

        Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal, Kristen Ramirez and Minh U. Le, Deputy Attorneys General, for

Plaintiff and Respondent.




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       A jury found defendant and appellant Hector Martinez guilty of (1) driving or

taking a vehicle valued at over $950, without the owner’s consent (Veh. Code, § 10851,

subd. (a)); and (2) possessing burglary tools (Pen. Code, § 466). In regard to the vehicle

offense, the jury found true the allegation that the crime was committed in association

with a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1)(A).) The court found

true the allegation that defendant suffered a prior conviction for driving or taking a

vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)). (Pen. Code,

§ 666.5, subd. (a).) The trial court also found true the allegations that defendant

suffered three prior convictions for which he served prison terms. (Pen. Code, § 667.5,

subd. (b).) The trial court sentenced defendant to prison for a term of eight years.

       Defendant contends the gang enhancement should be reversed due to the gang

expert’s reliance on testimonial hearsay and case-specific hearsay. The People concede

the gang expert’s testimony included inadmissible hearsay, but assert the errors were

harmless. We reverse the judgment in part.

                    FACTUAL AND PROCEDURAL HISTORY

       A.     SUBSTANTIVE CRIME

       On February 3, 2016, at approximately 4:30 a.m., City of Ontario Police Officer

Devey watched a truck being parked at a motel in Ontario. The truck had been reported

stolen in Chino. The officer saw defendant and Jorge Gonzalez1 walk away from the


       1In the reporter’s transcript, Gonzalez’s name is spelled Gonzales and
Gonzalez. In the clerk’s transcript, in the felony complaint, Gonzalez’s name is spelled
Gonzalez with an alias of Gonzales. We use the Gonzalez spelling.


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truck holding coffee and a box of donuts; it was unclear which man had been driving the

truck and which man was the passenger. The officer searched defendant and found a

couple of shaved keys, which can be used to steal cars. The officer did not find keys for

the truck in the possession of defendant or Gonzalez. The owner of the truck did not

give defendant or Gonzalez permission to take his truck.

       B.     GANG ENHANCEMENT

       Chino Police Officer Chris Chinnis testified as a gang expert. The Chino Sinners

is a criminal street gang. One of the gang’s primary activities is stealing cars. The

Chino Sinners claim the entire City of Chino as their gang territory.

       The Chino Police Department had eight field identification cards for Gonzalez:

(1) in 2005, Gonzalez was with members of the Chino Sinners; (2) on September 12,

2015, Gonzalez admitted being a member of the Chino Sinners; (3) on November 1,

2015, Gonzalez told Officer Chinnis that Gonzalez lost an eye during a shooting

involving a rival gang in Pomona; (4) on November 7, 2015, Gonzalez said he was

going to McLeod Park in Chino to “make sure there was no quote ‘niggers’ at his park”;

(5) Gonzalez was contacted on December 19, 2015; (6) Gonzalez was contacted on

January 9, 2016; (7) on January 12, 2016, Gonzalez said he joined the Chino Sinners in

2010, that he had earned some gang tattoos, and that he planned “to put more work in

for the gang in order to earn his skull and crossbones tattoo”; and (8) on January 24,

2016, Gonzalez admitted being a member of the Chino Sinners. Chinnis did not

complete any of the eight field identification cards concerning Gonzalez.




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       Officer Chinnis looked at the field identification card dated January 12, 2016, to

refresh his recollection concerning Gonzalez’s tattoos. Gonzalez had (1) “Chino”

tattooed on the back of his head; (2) various skulls on his arms; (3) “IE,” as in Inland

Empire; and (4) “CSR,” referring to Chino Sinners rifa, rifa means “untouchable” or

“baddest.”

       Officer Chinnis opined that defendant was an associate of the Chino Sinners.

Defendant was heard on wiretapped phone calls discussing drug activity with members

of the Chino Sinners. Defendant was related to two members of the Chino Sinners. On

December 7, 2012, defendant was found in a car with drugs and with Byron Taylor, a

Chino Sinners gang member. Chinnis read a report about the December 7 incident and

discussed it with his partner, who was present during the stop. Chinnis did not know if

defendant had any tattoos associated with the Chino Sinners.

       Officer Chinnis opined that defendant’s vehicle theft in the instant case was

committed in association with the Chino Sinners due to Chinnis’s “knowledge of

[defendant], Mr. Gonzalez, [his] knowledge of the Chino Sinners gang, [his] knowledge

of this incident, the fact that both individuals being documented as associates and/or

members working together out in the middle of the night with burglary tools, driving a

stolen vehicle. The mere fact that they’re driving a stolen vehicle would allow then to

commit additional crimes and not be detected, putting in work for the gang. Mr.

Gonzalez stated in previous contacts he’s trying to earn more tattoos, more respect by

putting in work for the gang, and this is a good opportunity for him to put in work with

another known associate to show his allegiance to the gang, as well as a way to earn


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money, as well as to show they can contribute some money back up to the Mexican

Mafia and be in good graces and good standing with the Mexican Mafia.” Chinnis was

not present when defendant was stopped and arrested in the instant case; however, the

Ontario Police Department contacted the Chino Police Department for assistance with

the case.

       C.       MOTION TO EXCLUDE

       Prior to Officer Chinnis testifying, defendant’s trial counsel moved to exclude

Chinnis’s testimony concerning Gonzalez’s field identification cards on the basis of

hearsay. Defense counsel asserted Chinnis did not write the cards and therefore,

testimony about the cards would be hearsay. The trial court responded that experts can

rely on hearsay.

       Defense counsel argued that the contents of the field identification cards

constituted testimonial hearsay, and therefore it would violate Crawford2 to rely upon

the cards. The trial court explained that not every field identification card is completed

for the purpose of prosecution and therefore, discussing the cards’ contents would not

violate Crawford. For example, a card could be completed for the purpose of later

classifying a person in prison.




       2    Crawford v. Washington (2004) 541 U.S. 36 (Crawford).


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                                      DISCUSSION

       A.     CONTENTION AND CONCESSION

       Defendant asserts, “To the extent the hearsay evidence included case-specific

hearsay, it required compliance with state evidence rules.” Defendant then cites to

People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). The People concede Sanchez was

violated by Officer Chinnis’s testimony concerning (1) the wiretapped conversation in

which defendant was discussing drugs; (2) the December 7, 2012, traffic stop in which

defendant was found in a car with Byron Taylor, a Chino Sinners gang member; (3) the

field identification cards concerning Gonzalez; and (4) Gonzalez’s tattoos.3

       B.     LAW

       Hearsay “is evidence of a statement that was made other than by a witness while

testifying at the hearing and that is offered to prove the truth of the matter stated.”

(Evid. Code, § 1200.) In Sanchez our Supreme Court explained that expert witnesses

can testify about their general knowledge, which has been gained from hearsay.

However, expert witnesses cannot testify about case-specific facts learned via hearsay

“unless they are independently proven by competent evidence or are covered by a

hearsay exception.” (Id. at pp. 687.) For example, an expert could testify that a

diamond is a symbol adopted by a particular street gang because that constitutes general

information. However, an expert could not testify that “an associate of the defendant

       3  Sanchez was filed on June 30, 2016. (Sanchez, supra, 63 Cal.4th at p. 665.)
Officer Chinnis testified on May 9, 2016. Thus, Sanchez had not been issued at the time
of Chinnis’s testimony. Therefore, although a Sanchez-specific objection or motion was
not raised, we will address the issue.


                                              6
had a diamond tattooed on his arm.” The tattoo is case-specific evidence, which would

need to be established by a witness who saw the tattoo, or by an authenticated

photograph, or it would need to fall within a hearsay exception. (Id. at p. 677, 687.)

We apply the abuse of discretion standard of review. (People v. Clark (2016) 63

Cal.4th 522, 590.)

       C.     ANALYSIS

       Officer Chinnis testified about defendant being heard on wiretapped telephone

calls discussing drug activity with members of the Chino Sinners. The statements about

drug activity were made outside of the court and were offered for their truth, thus

causing the evidence to be hearsay. (See Sanchez, supra, 63 Cal.4th at p. 684 [case-

specific facts are offered for their truth].) A transcript of the wiretapped phone call was

not admitted into evidence. In other words, the phone call was not independently

proven by competent evidence. The People do not assert that a hearsay exception is

applicable to this evidence. (See Id., at p. 686 [experts can relate as true case specific

facts that “are covered by a hearsay exception”].)

       Officer Chinnis testified about defendant being found in a car on December 7,

2012, with drugs and with Byron Taylor, a Chino Sinners gang member. Chinnis read a

report about the December 7 incident and discussed it with his partner, who was present

during the stop. Thus, Chinnis did not have personal knowledge of the stop. Chinnis’s

testimony about the stop came from statements by another person that were made

outside of court, and the information was offered for its truth, thus causing the evidence

to be hearsay. (See Sanchez, supra, 63 Cal.4th at p. 684 [case-specific facts are offered


                                             7
for their truth].) Chinnis’s partner did not testify about the stop, therefore there was not

independent proof of the stop. The People do not argue that a hearsay exception is

applicable to this evidence. (See Id. at p. 686 [experts can relate as true case specific

facts that “are covered by a hearsay exception”].)

       Officer Chinnis testified about field identification cards that he did not fill-out.

The cards contained information specific to Gonzalez, such as Gonzalez having joined

the Chino Sinners in 2010. The field identification card information was derived from

other people’s writings that were made outside of court and the information was offered

for its truth, thus causing the evidence to be hearsay. (See Sanchez, supra, 63 Cal.4th at

p. 684 [case-specific facts are offered for their truth].) The field identification cards

were not offered as evidence. Therefore, the contents of the field identification cards

were not independently proven by competent evidence. The People do not argue that a

hearsay exception is applicable to this evidence. (See Id. at p. 686 [experts can relate as

true case specific facts that “are covered by a hearsay exception”].)

       Officer Chinnis looked at the field identification card dated January 12, 2016, to

refresh his recollection concerning Gonzalez’s tattoos. It does not appear that Chinnis

had personal knowledge of Gonzalez’s tattoos; his knowledge was derived from a

writing that was made outside of court by another person, and Chinnis’s testimony

about the tattoos was offered for its truth, thus causing the evidence to be hearsay. (See

Sanchez, supra, 63 Cal.4th at p. 684 [case-specific facts are offered for their truth].)

Photographs of Gonzalez’s tattoos or eyewitness testimony concerning the tattoos were

not admitted as evidence. Therefore, the tattoos were not independently proven by


                                              8
competent evidence. The People do not argue that a hearsay exception is applicable.

(See Id. at p. 686 [experts can relate as true case specific facts that “are covered by a

hearsay exception”].)

       The foregoing evidence violated Sanchez because (1) it constituted hearsay, (2) it

was case specific in that the evidence concerned particular people alleged to have been

involved in this particular crime, (3) the hearsay was not independently proven by

competent evidence, and (4) there is no argument that the hearsay falls within a hearsay

exception. (Sanchez, supra, 63 Cal.4th at pp. 676, 680, 684-686.) In sum, Sanchez was

violated by Officer Chinnis’s testimony concerning the foregoing topics. Thus, the trial

court erred.

               D.    PREJUDICE

       The improper admission of hearsay is an error of state law. The improper

admission of testimonial hearsay is an error of federal law, in that it violates the

Constitution’s confrontation clause. (Sanchez, supra, 63 Cal.4th at pp. 686, 698.)

       Under the Sixth Amendment’s Confrontation Clause, a criminal defendant has

the right to confront witnesses testifying against him/her. This right is not limited to in-

court testimony. (Crawford v. Washington (2004) 541 U.S. 36, 42, 50-51.) If an

accuser makes a formal out-of-court statement to a government officer, then the

defendant’s right to confront the accuser is triggered; the out-of-court “testimony”

cannot be introduced via hearsay because the defendant has the right to confront the

accuser. (Id. at p. 51.) Out-of-court testimonial statements include “ ‘affidavits,

custodial examinations, prior testimony that the defendant was unable to cross-examine,


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or similar pretrial statements that declarants would reasonably expect to be used

prosecutorially.’ ” (Ibid.)

       The People concede Officer Chinnis’s testimony about the wiretap and

December 7, 2012, traffic stop constitute testimonial hearsay because that evidence

resulted from police investigations into particular crimes. The People assert the hearsay

derived from the field identification cards, including the descriptions of Gonzalez’s

tattoos, is not testimonial because field identification cards can be completed for the

purpose of gathering general intelligence, not for the purpose of investigating a

particular case.

       For the sake of judicial efficiency, we accept the People’s concession: the

wiretap and December 7, 2012, traffic stop constitute testimonial hearsay, while the

field identification card hearsay is non-testimonial. The field identification card

evidence is not testimonial because Officer Chinnis explained that field identification

cards were sometimes completed for the purpose of gathering general intelligence—not

for any particular case—and other times they were completed as part of a criminal

investigation. It is unclear in what context the field identification cards for Gonzalez

were created. In other words, Gonzalez’s cards may have been created in casual, non-

testimonial situations.

       Defendant asserts the error is prejudicial under both the state and federal

prejudice standards. In Sanchez, “much of the hearsay was testimonial,” therefore the

high court applied the federal prejudice standard in conducting its harmless error

analysis. (Sanchez, supra, 63 Cal.4th at p. 698.) Because the instant case involves a


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mix of testimonial and non-testimonial hearsay, we will apply the federal standard.

Accordingly, we examine whether the hearsay error was harmless beyond a reasonable

doubt. (Ibid.)

       “The gang enhancement applies to one who commits a felony ‘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.’ (Pen.

Code, § 186.22, subd. (b)(1).)”4 (Sanchez, supra, 63 Cal.4th at p. 698.)

       Without the hearsay evidence from the field identification cards, there is little

proof that Gonzalez was a member of the Chino Sinners. Officer Chinnis testified that

“in preparation for [his] testimony, [he] investigated a Jorge Gonzalez.” Chinnis opined

that Gonzalez is an active member of the Chino Sinners. Chinnis based that opinion “on

other officers’ investigations, [Chinnis’s] review of police reports involving Mr.

Gonzalez, as well as [Chinnis’s] review of FI cards that [he has] seen that have come

through consistently.” In other words, Chinnis’s opinion that Gonzalez is a gang

member was based entirely upon hearsay because it was based upon other police

officers’ investigations, reports, and field identification cards. Gonzalez then set forth


       4  The enhancement also requires proof that “the gang (1) is an ongoing
association of three or more persons with a common name or common identifying sign
or symbol; (2) has as one of its primary activities the commission of one or more of the
criminal acts enumerated in the statute; and (3) includes members who either
individually or collectively have engaged in a ‘pattern of criminal gang activity’ by
committing, attempting to commit, or soliciting two or more of the enumerated offenses
(the so called ‘predicate offenses’) during the statutorily defined period.’ ” (Sanchez,
supra, 63 Cal.4th at p. 698.) Defendant raises no issue with Officer Chinnis’s
background testimony concerning general gang behavior and attributes.


                                             11
the information from the field identification cards to explain how it helped form his

opinion. Without the erroneously admitted case-specific hearsay, there is little support

for Chinnis’s opinion that Gonzalez is a gang member.

       In regard to defendant, Officer Chinnis opined that defendant was an active

participant in the Chino Sinners based upon Chinnis’s “knowledge of [defendant’s]

association and [defendant’s] past criminal history.” Chinnis explained how the

wiretapped telephone call and December 7, 2012, traffic stop caused him to conclude

defendant actively participated in the Chino Sinners. Additionally, Chinnis explained

that defendant has relatives who are members of the Chino Sinners. Without the

erroneously admitted hearsay evidence, i.e., the wiretap and 2012 traffic stop, Chinnis’s

opinion that defendant is an active participant in the Chino Sinners is based upon

defendant having relatives who are members of the gang.

       Without the hearsay evidence, the record reflects defendant committed a crime

that is a primary activity of the Chino Sinners; the crime was committed within the City

of Chino, which is the Chino Sinners’ territory; and defendant has family members who

are members of the Chino Sinners. There is no evidence that defendant is a member of

the Chino Sinners, that he is close with his relatives who are members of the Chino

Sinners, or that Gonzalez is a member of the Chino Sinners. Thus, other than the place

and type of crime, there is nothing tying the instant crime to the gang. Further, there is

nothing showing defendant knew he was in Chino Sinners’ territory or knew that he was

committing a crime that Chino Sinners’ members tend to commit. Therefore, there is

little proof that defendant had the specific intent to promote, further, or assist in any


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criminal conduct by gang members (§ 186.22, subd. (b) Because there is little proof of

specific intent without the erroneously admitted hearsay, we cannot conclude beyond a

reasonable doubt that the hearsay error did not contribute to the verdict obtained.

(Chapman v. California (1967) U.S. 18, 24.) In sum, the error was prejudicial.

       The People assert the error was not prejudicial because (1) defendant was

arrested with Gonzalez, who is a member of the Chino Sinners; (2) defendant was

arrested in Chino Sinners’ territory; (3) vehicle theft is a primary activity of the Chino

Sinners; and (4) the vehicle theft would permit defendant and Gonzalez to commit

additional crimes in support of the gang. The People fail to explain what properly

admitted evidence supports a finding that Gonzalez is a member of the Chino Sinners.

Our review of the record reflects only inadmissible hearsay establishing Gonzalez’s

gang membership. Without that evidence the record reflects that defendant committed a

crime in gang territory and that gang members tend to commit the same crime. This

evidence fails to establish that defendant had the specific intent to promote, further, or

assist in any criminal conduct by gang members (§ 186.22, subd. (b)(1)) because it fails

to show defendant had any knowledge or awareness that he was in gang territory

committing a crime that gang members tend to commit. In sum, we find the People’s

argument to be unpersuasive.

                                     DISPOSITION

       The gang enhancement (§ 186.22, subd. (b)(1)(A)) in count 1 is reversed. The

trial court is directed to issue an amended abstract of judgment and forward the




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amended abstract to the appropriate agency/agencies. In all other respects, the judgment

is affirmed.

       CERTIFIED FOR PUBLICATION




                                                     MILLER
                                                                            Acting P. J.


We concur:


SLOUGH
                                J.


FIELDS
                                J.




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