Filed 3/25/15 P. v. Ochoa CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137763
v.
JOSE ANTONIO OCHOA,                                                  (Contra Costa County
                                                                     Super. Ct. No. 51210673)
         Defendant and Appellant.


         Defendant Jose Antonio Ochoa (defendant) appeals from the judgment following
his conviction for various offenses, including threatening public officers. We affirm.
                                      PROCEDURAL BACKGROUND
         On June 22, 2012, the Grand Jury of the County of Contra Costa returned an
indictment accusing defendant of first degree residential burglary (Pen. Code, §§ 459,
460, subd. (a);1 count one), during which nonparticipants in the robbery were present
(§ 667.5, subd. (c)(21)); attempted first degree robbery (§§ 211, 212.5, subd. (a), 664;
count two); threatening public officers and employees (§ 71; count three); and resisting
an executive officer (§ 69; counts four and five). As to counts three to five, the
indictment alleged the offenses were committed for the benefit of criminal street gangs,
specifically the Sureños and the South Side Locos (SSL) (§ 186.22, subd. (b)(1)). The
indictment also alleged defendant had a prior strike conviction (§§ 667, subds. (b)–(i),
1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)).


1
    All further undesignated section references are to the Penal Code.

                                                             1
       In December 2012, a jury found defendant guilty on counts one, two, three, and
five. The jury found true the enhancements to counts one and three. The jury did not
reach a verdict on count four or the enhancement to count five; that count and
enhancement were dismissed on the prosecution’s motion. The trial court found true the
prior conviction allegations.
       In January 2013, the trial court sentenced defendant to state prison for a total term
of 11 years and four months. This appeal followed.
                                FACTUAL BACKGROUND
       In May 2012, Raul Moreno Chavez (Moreno) and Antonio Sandoval Navarro
(Sandoval) (jointly, victims) lived in an apartment on Detroit Avenue in Concord. The
victims, who testified through Spanish interpreters, testified that defendant and two other
people loudly knocked on their apartment door in the early morning hours on May 19.
Moreno opened the door; Sandoval called the police. Sandoval heard the men, speaking
in English, say they had a knife or pistol. Moreno exited the apartment and two of the
men, one of whom was defendant, entered the apartment and said the victims would be
killed if they did not give the assailants what they wanted. Defendant took Sandoval’s
cell phone and wallet, and then threw both on the floor. Subsequently, the men went
outside, where defendant was detained after Sandoval identified him to the police.2
       At around 3 a.m. on May 19, 2012, Concord Police Officers Carl Cruz and David
Greenfield responded to the area of the victims’ apartment. Officer Cruz encountered
defendant in the apartment complex’s central “quad.” The officer asked to speak to
defendant, and defendant responded with verbal aggression. Officer Cruz noticed
Sandoval coming down stairs nearby, and he went to speak with Sandoval while Officer




2
 Moreno testified he left the apartment and had tense interactions with defendant and his
companions outside the apartment. His testimony was unclear and it is unnecessary to
attempt to summarize it for purposes of this decision.

                                             2
Greenfield stayed with defendant.3 Sandoval identified defendant as the man who had
entered his apartment.
       Officer Greenfield tried to calm defendant down. The officer got defendant to sit
down, but he remained belligerent. He told Officer Greenfield, “Fuck you. You know
who you’re fucking with? I’m a validated Sureño. I run this County.” Defendant also
told the officer, “I’ll fuck you up.” While this was happening, Officer Cruz was speaking
to Sandoval within earshot, and defendant was also yelling over his shoulder to them in
Spanish.
       Subsequently, a struggle ensued when defendant attempted to stand up: Officer
Greenfield pushed him back down, defendant shoved the officer, and the officer struggled
to restrain defendant. Officer Cruz offered his assistance, and they managed to handcuff
defendant after Officer Greenfield applied a “carotid control hold,” which caused
defendant to lose consciousness for about five seconds. Defendant was still aggressive
when he regained consciousness, yelling and “kicking and flailing around.” Because the
hold was employed, the officers summoned medical assistance, per departmental policy.
Defendant was taken to the hospital in an ambulance.
       At the hospital, Officer Greenfield joined Officer Cruz, who was already with
defendant. Defendant spoke to Officer Cruz in a threatening manner and referred to his
ties to La Eme (also known as the Mexican Mafia), a prison gang. Officer Cruz knew
defendant was a Sureño affiliated with the local South Side Locos (SSL) gang.
Defendant told Officer Greenfield, “If you weren’t such a pussy and had to jump me, I
would have fucked you up. I can’t wait to see you again when you’re off-duty. I’ll get
you. You ain’t shit without your badge and gun.”
       The prosecution presented testimony from another Concord police officer who had
contact with defendant in 2010. Defendant was photographed, and he asked if he could
“represent” during the photographs; when he was told he could, he “flashed common SSL
gang . . . signs.” Another officer testified he had contact with defendant in 2011 and

3
 The officers referred to Sandoval as Navarro in their testimony, but Sandoval testified
he preferred to go by the last name Sandoval.

                                             3
defendant identified himself as an “SSL Sureño.” Yet another officer testified having
contact with defendant in February 2012; he was in the company of at least one other
SSL gang member and was wearing blue clothing (which is associated with the Sureños).
       The prosecution’s gang expert, Corporal Michael Kindorf, testified regarding the
history and activities of La Eme aka the Mexican Mafia, the Sureños, and the SSL. They
are all affiliated gangs, with La Eme occupying “Tier I,” the Sureños “Tier II,” and the
SSL “Tier III.” At the time of the present offenses, the SSL claimed as its territory “the
southern district of the three policing districts” in Concord, which is where the present
offenses occurred. Kindorf testified that defendant has numerous tattoos that demonstrate
his affiliation with the Sureños and the SSL. Kindorf also identified various specific
people as members of the SSL. Finally, Kindorf was presented with hypotheticals that
mirrored the circumstances of the incident shown at trial, and he explained how the
hypothesized conduct would benefit a gang.
                                        DISCUSSION
I.     The Gang Expert’s Testimony Did Not Violate the Confrontation Clause
       Defendant contends the testimony of the prosecution’s gang expert, Corporal
Kindorf, violated his Confrontation Clause rights under the Sixth Amendment to the
United States Constitution. (People v. Dungo (2012) 55 Cal.4th 608, 612 (Dungo).) In
particular, he argues the expert relied on hearsay to support the prosecution’s showing
that SSL members engaged in a “pattern of criminal gang activity,” as required to sustain
the gang enhancement to count three. (§ 186.22, subds. (b), (e), & (f).)
       As the California Supreme Court explained in People v. Gardeley (1996)
14 Cal.4th 605, 621 (Gardeley), “[A] gang otherwise meeting the statutory definition of a
‘criminal street gang’ . . . is considered a criminal street gang . . . only if its members
‘individually or collectively engage in or have engaged in a pattern of criminal gang
activity’ (§ 186.22, subd. (f)) by ‘the commission, attempted commission, or solicitation
of two or more’ (italics added) of the statutorily enumerated offenses within the specified
time frame (§ 186.22, subd. (e)) . . . .” (See also People v. Hill (2011) 191 Cal.App.4th



                                               4
1104, 1138.)4 The prosecution need not prove, however, that the predicate offenses used
to establish a pattern of criminal activity were gang-related. (Gardeley, at pp. 621–622.)
       In the present case, the prosecution submitted into evidence records of convictions
of various persons that Corporal Kindorf opined were SSL members. In her closing, the
prosecutor referenced convictions for seven offenses committed between 2008 and 2012
committed by various persons. Defendant’s argument on appeal regarding the proof of
the predicate offenses is that “there was considerable dependency on hearsay evidence
garnered through expert testimony for the proposition that certain [persons] were
members or were acting as such at the time the specified criminal acts were committed.”
       At the outset, we note defendant is mistaken in asserting the prosecution was
required to prove the SSL members were “acting as such” in committing the predicate
offenses. (Gardeley, supra, 14 Cal.4th at pp. 621–622.) As to proof that the specified
individuals were SSL members at the time of the offenses, Corporal Kindorf did rely on
out of court statements, including conversations with gang members and other officers.
(See People v. Valadez (2013) 220 Cal.App.4th 16, 29 (Valadez).) Assuming such
testimony was admitted for the truth of the matters asserted, and thus hearsay (see id. at
pp. 30–32; People v. Miller (2014) 231 Cal.App. 4th 1301, 1309–1312), admission of the
hearsay did not violate defendant’s rights because defendant has not shown any of the
hearsay was “testimonial,” as required to implicate the Confrontation Clause under
Crawford v. Washington (2004) 541 U.S. 36, 51–52, 68. In order to be considered
testimonial, “the statement must be made with some degree of formality or solemnity”
and “its primary purpose [must] pertain[] in some fashion to a criminal prosecution.”
(Dungo, supra, 55 Cal.4th at p. 619.)



4
 Subdivision (e) of section 186.22 states: “As used in this chapter, ‘pattern of criminal
gang activity’ means the commission, attempted commission, or solicitation of two or
more of the following offenses, provided at least one of those offenses occurred after the
effective date of this chapter and the last of those offenses occurred within three years
after a prior offense, and the offenses are committed on separate occasions, or by two or
more persons.”

                                             5
       We agree with the reasoning of the Valadez court, which rejected a similar
contention that statements elicited by a gang expert in past conversations with gang
members and police officers were testimonial. The court reasoned, “nothing in the
circumstances of [the expert’s] interactions with gang members and other officers
objectively indicates the primary purpose of [the expert’s] questioning was to target [the
defendants] or any other individuals or crimes for investigation or to establish past facts
for a later criminal prosecution. . . . To the contrary, he merely educated himself about
the history of gangs in an area in which he was assigned as a gang officer, which would
help him better understand and perhaps more effectively investigate gang activity. Like
the mixed motives of officers and witnesses during ongoing emergencies, that he used
this general information to testify as a gang expert at trial does not mean his primary
purpose in obtaining this information was to use it against [the defendants] in a later
criminal prosecution. Day in and day out such information would be useful to the police
as part of their general community policing responsibilities quite separate from any use in
some unspecified criminal prosecution.” (Valadez, supra, 220 Cal.App.4th at p. 36; see
also Hill, supra, 191 Cal.App.4th at pp. 1135–1136.)
       Because defendant has not identified any relevant out of court statements elicited
in circumstances different from those described in Valadez, he has not shown the trial
court violated his Confrontation Clause rights by allowing the prosecution to rely on
testimonial hearsay.5
II.    The Gang Enhancement to Count Three is Supported by Substantial Evidence
       Defendant was convicted in count three of threatening a public officer. (§ 71.)
The evidence showed that, prior to the start of their physical conflict, defendant told
Officer Greenfield, “You know who you’re fucking with? I’m a validated Sureño.” He
also told the officer, “I’ll fuck you up.” The jury found true an allegation that the count
three offense was committed for the benefit of a criminal street gang. (§ 186.22, subd.


5
 Because defendant’s claim is without merit, we need not and do not consider whether he
properly presented an objection based on the Confrontation Clause below.

                                              6
(b)(1).) On appeal, defendant contends the allegation is not supported by substantial
evidence.
       “In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence.” (People v. Albillar (2010) 51 Cal.4th 47, 59–60 (Albillar).)
       To subject a defendant to a gang enhancement under section 186.22, subdivision
(b)(1), the prosecution must prove both the underlying crime was “committed for the
benefit of, at the direction of, or in association with any criminal street gang,” and that
the defendant possessed “the specific intent to promote, further, or assist in any criminal
conduct by gang members.” (§ 186.22, subd. (b)(1); Albillar, supra, 51 Cal.4th at pp. 59-
60.) The “gang enhancement may be applied to a lone actor.” (People v. Rios (2013)
222 Cal.App.4th 542, 564.)
       In the present case, gang expert Corporal Kindorf described the history and culture
of the SSL gang and the broader gangs with which it is affiliated. Responding to a
hypothetical from the prosecutor, he opined, among other things, that threats such as
those directed at Officer Greenfield by defendant communicated to the victims and any
witnesses that the person making the threat or fellow gang members could retaliate if
there was any cooperation with police. (See Albillar, supra, 51 Cal.4th at p. 63
[approving use of hypothetical question to expert regarding gang benefit].) The jury
could also reasonably infer that defendant’s threats would benefit the SSL and its parent
Sureño gang by demonstrating a fearlessness in the face of authority. Such violent
resistance would, in the expert’s words, “elevate that level of intimidation and despair in
the neighborhood.” The jury’s finding of gang-relatedness is further supported by the
circumstances that defendant specifically called out a gang name and committed his
offense in gang territory. (Cf. People v. Ochoa (2009) 179 Cal.App.4th 650, 662


                                              7
[“Defendant did not call out a gang name, display gang signs, wear gang clothing, or
engage in gang graffiti while committing the instant offenses.”]; ibid. [“There was no
evidence the crimes were committed in . . . gang territory . . .”].)
       Defendant argues there is insufficient evidence defendant’s threats were for the
benefit of the SSL, because “there was no one else around besides” the police officers
and Sandoval, one of the victims. However, the jury reasonably could have inferred that
defendant’s threats would serve a gang-related purpose even if only the officers and
Sandoval heard them. Moreover, because the incident was loud and occurred in a central
and public area of an apartment complex, there was a reasonable possibility that other
residents would witness the incident. Defendant also argues, “what is lacking here is
some sort of proof of actual benefit,” because Sandoval did not refuse to testify and the
officers were not intimidated. He fails, however, to cite any authority such proof is
needed; the gang enhancement refers to conduct “for the benefit of” a gang (§ 186.22,
subd. (b)(1)), not conduct that “benefitted” a gang. In any event, Corporal Kindorf’s
testimony provided a basis for the jury to infer that defendant’s conduct benefitted the
SSL overall in the manner the expert described, regardless of the effect of defendant’s
threats on Sandoval and the officers.6
       We conclude Corporal Kindorf’s testimony regarding how conduct such as
defendant’s could benefit the SSL was sufficient to raise an inference the conduct was
“committed for the benefit of” the SSL within the meaning of section 186.22, subd.
(b)(1). (Albillar, supra, 51 Cal.4th at p. 63.)
                                       DISPOSITION
       The judgment is affirmed.


6
  The heading to this argument in defendant’s opening brief suggests the gang expert
relied on the fact that defendant yelled in Spanish as a basis for his conclusion the offense
was for the benefit of the SSL. Defendant cites to no portion of the expert’s testimony in
support of that assertion. In any event, the fact that defendant yelled in Spanish supports
an inference defendant sought to intimidate Sandoval, whose primary language was
Spanish. Corporal Kindorf testified such witness intimidation “definitely strengthens the
hold that a gang has on a community.”

                                              8
                  SIMONS, J.




We concur.




JONES, P.J.




NEEDHAM, J.




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