Filed 7/30/14 P. v. Salcido CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055709

v.                                                                       (Super.Ct.No. INF062246)

FRANCISCO SALCIDO,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Ronald L. Johnson,

Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.

         Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina,

Christine Levingston Bergman, and Ryan H. Peeck, Deputy Attorneys General, for

Plaintiff and Respondent.

                                                             1
       Defendant Francisco Salcido, a West Drive Locos (WDL) gang member, was a

passenger in a car that was driving in the gang’s territory in Desert Hot Springs. Former1

Desert Hot Springs Police Sergeant Robert Ritchie followed the car thinking that

defendant’s fellow gang member, Anthony Paez, was in the car. Just a few days before,

Paez had been involved in a shootout with law enforcement officers. The car pulled to

the curb. Ritchie got out of his car, had his gun drawn, and was crouched behind his car

door anticipating the exiting passenger to be Paez. Defendant exited the vehicle with his

back to Ritchie and the car drove away. Ritchie relaxed when he realized it was not Paez.

Defendant walked a few steps away from Ritchie, then suddenly turned and shot at

Ritchie. Ritchie shot back at defendant until his magazine was empty. Defendant fled

the scene. Defendant was apprehended several days later.

       After two trials, defendant was convicted of attempted premeditated, willful, and

deliberate first degree murder of a peace officer, assault with a deadly weapon on a peace

officer, active participation in a street gang, and carrying a loaded firearm while an active

member of a street gang.

       Defendant now contends on appeal as follows:

       1.     The trial court abused its discretion and violated his federal constitutional

rights to due process when it excluded evidence pursuant to Evidence Code section 352

that Ritchie had been involved in another officer-involved shooting, because it showed he

had a character to overreact and use excessive force in high-risk felony situations.


       1      Ritchie was medically retired in November 2009.


                                              2
       2.     The trial court abused its discretion by allowing “testimonial hearsay” to

support the gang expert’s opinion that the motive for the murder was that WDL gang

members hated Desert Hot Springs police officers.

       3.     His conviction of being an active member of a street gang under section

186.22, subdivision (a) should be reversed.

       4.     Cumulative error warrants reversal.

       We reverse defendant’s conviction of violating section 186.22, subdivision (a).

We otherwise affirm the judgment in its entirety.

                                              I

                            PROCEDURAL BACKGROUND

       On April 19, 2011, after a first trial, defendant was found guilty of unlawfully

carrying a loaded firearm while an active gang member (Pen. Code, § 12031, subd.

(a)(2)(c); count 2)2 and unlawfully participating in a criminal street gang (§ 186.22, subd.

(a)); count 3). On October 13, 2011, after a second trial, defendant was found guilty of

premeditated, deliberate, and willful attempted murder on a peace officer (§§ 664/187,

subd. (a); count 1), and assault with a deadly weapon on a peace officer (§ 245, subd.

(d)(1); count 4).3 The jury also found true the special allegations as to counts 1 and 4,

that defendant personally used a firearm (§ 12022.5, subd. (a)), and he personally

discharged a firearm (§ 12022.53, subd. (c)). The jury also found true that in the

       2      All further statutory references are to the Penal Code unless otherwise
indicated.
       3      The jury in the first trial had been unable to reach a verdict on counts 1 and
4.


                                              3
commission of count 1, defendant committed the crime for the benefit of or at the

direction of a criminal street gang (§ 186.22, subd. (b)(1)).

       Defendant, after waiving his rights to a trial, admitted he had suffered one prior

serious or violent prior felony conviction (§§ 667, subds. (c) & (e), 1170.12, subd.

(c)(1)). Defendant was sentenced to a total prison term of 56 years to life.

                                              II

                               FACTUAL BACKGROUND

       We note at the outset that both parties in providing their Statements of Facts only

relied upon the evidence presented at the second trial. Although not discussed by either

party, as set forth in the procedural background, ante, defendant was found guilty of

counts 2 and 3 in the first trial. We deem defendant’s omission of the evidence from the

first trial in his opening brief as a concession that his arguments only apply to reversal of

counts 1 and 4. We draw the factual background from the evidence presented at the

second trial. We will discuss, post, the issue and facts raised in the supplemental brief

pertaining to defendant’s claim that count 3 should be reversed.

       A.     Prosecution

              1.     The shooting

       On May 26, 2008, Ritchie attended a morning briefing at the police station. He

was informed at the briefing that an officer-involved shooting had occurred on Friday,

May 23. The suspect in the shooting was a WDL gang member named Anthony Paez.

Paez had shot at California Highway Patrol officers. Ritchie had been involved in two




                                              4
other incidents with Paez. During the first incident Paez ran from Ritchie, and in the

second incident, Paez had been in possession of a shotgun.

        Around 3:00 p.m., Ritchie was on patrol in the area of Third Street in Desert Hot

Springs. He was in full uniform and was driving a marked patrol car. His service

weapon was a nine-millimeter firearm that he had loaded in the morning. As he was

driving on Third Street, he observed a dark blue BMW. He recognized the car as one that

he had seen Paez driving during a previous contact.

        Ritchie requested a records check of the car while he followed it. There was a

female driver and male passenger. The male passenger was moving around in his seat

and then sat low in the seat. The passenger had a bald head which was consistent with

Paez.

        Ritchie confirmed the BMW was the same one Paez had previously been seen

driving. He followed the car and radioed for additional units because he believed that

Paez was armed and dangerous. Ritchie did not immediately activate his lights and siren

because he did not want to stop the car without assistance. He radioed to other units that

they should come with lights and sirens activated.

        Suddenly, the car stopped near First and Cactus Streets. Ritchie stopped his car in

the middle of the road and got out of his car. Ritchie stood behind the open driver’s side

door of his car and pulled out his gun. He pointed his weapon at the passenger’s side

door of the BMW but did not issue any commands.




                                             5
       Defendant exited the passenger’s side door. Ritchie immediately recognized it

was not Paez in the car. He contacted police dispatch to advise the other responding

officers that it was not Paez in the car. Ritchie relaxed but continued to train his weapon

at the BMW. He dropped his gun two to three inches. Ritchie gave no commands to

defendant because he had nothing to say to him. He also was talking to dispatch and did

not have time to issue commands.

       Defendant faced away from Ritchie and his hands were not visible. Initially,

Ritchie did not see a gun. Defendant closed the passenger’s side door and the BMW

drove away. Ritchie was going to wait for other units to arrive and then detain defendant.

       Defendant walked three to four steps. He suddenly turned to his left and fired first

at Ritchie. Defendant continued to shoot. Ritchie shot back at defendant and emptied his

entire magazine; his full magazine contained 17 bullets. Ritchie described the incident as

a “full on gun battle.” Ritchie crouched behind his car door. Bullets hit the push bar in

the front of the car and the bottom right corner of the driver’s side door. Defendant ran

into a nearby empty field and could not be found.

       The recordings from Ritchie’s calls to dispatch were played for the jury. He

relayed that he thought Paez was in the BMW. He also stated that the BMW was pulling

to the curb at Cactus and First Streets. Ritchie stated that it was not Paez, and then the

transcript immediately shows that Ritchie said, “Shots fired! Shots fired!” Ritchie

stated, “There were shot[]s fired at me and I fired several shots south bound.”




                                              6
       Two types of shell casings were found at the scene of the shooting: nine-

millimeter and .45-caliber casings. A live round was also found. The casings were

grouped together. An empty .45-caliber magazine was found in a dirt lot at the corner of

Cactus and First Streets. A cellular telephone belonging to defendant was found just

north of the area where the magazine was found.

       A text message dated May 26, 2008, and transmitted at 5:51 a.m. was found on

defendant’s cellular telephone. The text message stated, “Without putting me on blast, I

need to borrow the torch.” A “torch” was gang language for needing to borrow a gun.

There was another text message transmitted on May 26, 2008, at 10:25 a.m. that stated,

“Stranger, everything from that car is ready to go. Hit him up and get back to me. 500

the less, 600 is what we want. Gracias. PWDX3.” “PWDX3” stood for either Pancho,

which was defendant’s gang moniker, or Puro, West Drive, and 13. There were also

photographs of defendant with other WDL gang members on his telephone.

       Defendant was arrested at his cousin’s house. Defendant tried to run but was

apprehended. Near the apartment there was WDL graffiti stating “WD,” “Varrio WDL,”

and “West DR X3.” Near the scene of the shooting there was WDL gang graffiti on an

abandoned structure. Grafitti stating “Pancho” and “West Drive X3” was on the

structure.

       2.     Gang evidence

       Investigator Ryan Monis testified as a gang expert. At the time of trial, he was

employed as a Senior Investigator for the Riverside County District Attorney’s Office.

He was assigned to the Coachella Valley Violent Crime Task Force and had an extensive


                                            7
background with both state and federal gang task forces. He had testified as a WDL gang

expert 15 to 20 times.

       WDL was a criminal street gang based in Desert Hot Springs. The area of First

and Cactus Streets was WDL gang territory. The symbol for the gangs was WD or WDL.

The primary activities of WDL included homicide, attempted homicides, drug sales,

possession of firearms, witness intimidation, robberies, and home invasion robberies.

The more violent the crime committed by the gang member, the more it instilled fear and

intimidation in the community.

       There were several “predicate” offenses that were presented. These included two

occasions –– May 23 and May 30 –– during which Paez shot at officers. Paez was

convicted of several crimes including murder. Another gang member was convicted of a

home invasion robbery in 2005.

       Investigator Monis knew defendant. Defendant had WDL tattoos. Monis believed

that in May 2008, defendant was an active WDL member. Defendant had previously

admitted to being a WDL member. Defendant was an older and more active member and

was considered a “shot caller.”

       Monis interviewed Everett Gallegos in January 2011. Gallegos was a former

WDL member who had been imprisoned since 2001 for a gang-related murder which was

committed in 1999. Gallegos had previously testified against other WDL members.

Gallegos wanted help with being placed on his parole outside Desert Hot Springs because

he feared retaliation. Monis agreed to put in a good word for him.




                                            8
       In 2011, Gallegos was not a WDL member and was not in good standing with the

gang. Gallegos told Monis that the WDL members had a strong dislike for law

enforcement, and especially the Desert Hot Springs Police Department. When Gallegos

was a WDL member, sometime between 1997 and 2001, he was involved in discussions

with other WDL members about harming or shooting police officers. These discussions

included hiding behind the Desert Hot Springs Police Department and shooting at officers

who exited the building. Defendant was not present during the discussions. Gallegos

stated that if a WDL member had the opportunity to shoot at a police officer, the gang

member would take a shot.

       In 2004, Monis spoke with another WDL gang member, Alejandro Escobar.4

Escobar also stated that if an opportunity arose for a WDL member to shoot at a Desert

Hot Springs police officer, the gang member would take the opportunity.

       In 2004, Monis had observed graffiti in WDL territory that stated “187,” the Penal

Code section for murder, and “DHSPD,” which stood for Desert Hot Springs Police

Department, underneath. It was his belief, based on his training and experience, that it

was written by a WDL member and it was a threat to law enforcement.

       Monis listened to a jailhouse recording between defendant and Daniel Villa,

another WDL gang member. They laughed about the exposure they were getting due to

the shootings and the documentation in the newspaper. Villa said, “We’re getting

worldwide exposure.”

       4        Monis told no one about this conversation until he began preparing for the
instant case.


                                              9
        Monis, after being given a hypothetical that was the same as the facts in the instant

case, proffered that the instant crime was committed for the benefit of and on behalf of

the WDL gang. A big factor in deciding it was a gang crime was that there were three

shootings involving WDL members against law enforcement during a seven-day period.

Monis indicated that to some extent all gangs have a dislike for law enforcement.

        B.     Defense

        Defendant testified on his own behalf. He admitted becoming a WDL member in

1997 or 1998. Paez was an acquaintance through the gang but defendant did not like the

way he acted. He had never heard WDL members, including Escobar, talk about killing

or shooting Desert Hot Springs police officers. Defendant’s attitude toward law

enforcement in 2008 was to avoid them at all costs so he was not harassed.

        Jessica Jimenez, defendant’s girlfriend, picked him up in the BMW in the

afternoon on May 26, 2008. Defendant lowered the seat all the way down to the

floorboard and could not see out the back window; he never saw a police car following

them.

        Defendant told Jimenez to drop him off on First and Cactus Streets so he could

visit his cousin who lived nearby. Defendant exited the car and leaned back in to kiss

Jimenez. He started walking on Cactus; he never saw a car behind him. In his

waistband, defendant had a .45-caliber gun that he had bought two weeks prior for

protection against rival gang members.

        As he was walking, he heard what sounded like someone racking a round into the

chamber of a gun. Defendant looked over his shoulder and saw a man in dark clothing


                                             10
standing behind the door of a car, pointing a gun at him. Defendant was focused on the

gun and could not tell it was a law enforcement officer.

       Within a few seconds, defendant heard a “boom” and felt a bullet graze the top of

his head. In defense, he started to shoot back. He fired eight or nine rounds. Defendant

was only trying to stop the person from shooting at him; he did not intend to kill the

person. As defendant ran from the scene, he realized that he had been shooting at a

police officer.

       While defendant ran, the magazine accidently fell out of his gun and his cellular

telephone fell out of his pocket.

       Defendant presented his own gang expert, Enrique Tira. Tira was a private

investigator who had been a police officer in Indio for 17 years. One month prior to trial,

Tira spoke with Escobar. Escobar denied ever telling Monis that WDL gang members

would kill Desert Hot Springs police officers if given the chance. Escobar admitted that

WDL members did not like police officers but never said WDL hated law enforcement.

       Tira also interviewed Gallegos. Gallegos told Tira that gang members do not like

police officers and police officers do not like gang members. He had never told Monis

that he overheard WDL members talk about killing Desert Hot Springs police officers.

Gallegos had no knowledge of any member of WDL being ordered to kill or shoot Desert

Hot Springs police officers.

       Tira claimed that a gang would not want a member to shoot at a police officer

because it would only cause more problems for the gang. Given hypotheticals similar to

the facts of the instant case, Tira did not believe that shooting at a Desert Hot Springs


                                             11
police officer was done for the benefit of the gang. Tira had never qualified as an expert

on the WDL gang.

                                               III

    EXCLUSION OF EVIDENCE OF PRIOR OFFICER-INVOLVED SHOOTING

       Defendant contends that the trial court abused its discretion pursuant to Evidence

Code section 352 and violated his federal constitutional due process rights by excluding

evidence of a previous officer-involved shooting in which Ritchie was involved to show

that he had the character to overreact in high-stress situations and used excessive force in

high-risk felony situations.

       A.     Additional Factual Background

       Prior to the first trial, the People filed a trial brief stating that evidence of any

other shooting in which Ritchie was involved should not be allowed. The People noted

that Ritchie had been diagnosed with Post Traumatic Stress Disorder after the shooting

due to his involvement in three separate shootings during the time span of 16 months.

The prosecutor also provided, “Sgt. Ritchie was cleared from criminal liability in both

other shootings and there is zero evidence available to conclude otherwise.” The People

also argued that the type of evidence would necessitate an undue consumption of time,

would confuse the issues and mislead the jury.

       Defense counsel made an offer of proof as to the prior officer-involved shooting.

Ritchie followed after a suspect who was riding a bicycle. Ritchie tried his taser but it

did not work. Ritchie tried to get the suspect to stop but he was not listening. The man

came toward Ritchie asking if he wanted to fight. Ritchie then shot him four times.


                                               12
Defense counsel argued that in this case Ritchie overreacted when he got out of his patrol

car. Ritchie opened fire without issuing any commands to defendant. It was defense

counsel’s theory that Ritchie was terrified, he overreacted, and opened fire on defendant;

defendant shot back in self-defense. This was similar to the other shooting because he

shot four times at the suspect and shooting one time would have been sufficient. The trial

court wanted to hear testimony from Ritchie about the incident.

       Ritchie testified at an Evidence Code section 402 hearing. In October 2007, he got

into an altercation with a suspect named Sergio Lopez who did not respond to his

commands. Lopez came toward Ritchie with his hands clenched. He did not have a

knife or a weapon as far as Ritchie could see. Ritchie shot Lopez once in the buttocks

area but he continued to come toward him. He then shot Lopez in the chest three times

because Lopez continued to come toward him. Lopez died. Ritchie admitted it was a

traumatic experience.

       Defense counsel argued that the incident with Lopez when Ritchie shot four times

was “overkill.” It supported that Ritchie overreacted and shot first in the instant case. To

exclude the evidence would deny defendant a defense and his right to a fair trial under the

federal and state Constitutions.

       The prosecutor argued that the prior shooting was not relevant. Saying that

defendant overreacted was merely defense counsel’s opinion. Further, even if it had

some relevance, it was prejudicial, as it would involve an undue consumption of time and

confuse the jury. The two incidents involved completely different scenarios. Defense




                                            13
counsel countered that the incident showed that Ritchie only knew how to react one way

in these incidents.

       The trial court noted that both incidents involved Ritchie firing his weapon.

However, the trial court did not see a “nexus” between the two incidents. They were two

separate and distinct incidents. The trial court stated, “Also, to allow counsel, if I was to

exercise an abundance of caution, if I was to allow counsel to go into this incident, quite

frankly, I would be in dereliction of my duty because there would be an undue

consumption of time, and under the 352 analysis, the probative value is extremely slight.”

       The prosecutor filed the same brief before the second trial. The trial court stated

that it had reviewed the transcripts from the prior Evidence Code section 402 hearing and

was prepared to hear new argument on the issue.

       The People once again argued the evidence was not relevant. The two crimes

were not similar. Ritchie acted within police procedure during the Lopez incident. Any

minimal relevance was outweighed by the prejudice. The People would have to present

an expert on excessive force, which would take up an undue amount of time. Further,

every other high-pressure incident that Ritchie had been involved in and had not shot the

suspect would have to be introduced.

       Defendant’s counsel stated the evidence was relevant to Ritchie’s state of mind at

the time of the instant shooting and to show habit and custom during high-risk stops. It

showed Ritchie was “trigger happy.” Ritchie would be placed in a false light in front of

the jury.




                                             14
       The trial court ruled, “Court’s ruling on that is it will be excluded pursuant to 352.

I find the prejudicial effect clearly outweighs any probative value and that therefore it

must be excluded, and it’s excluded pursuant to 352.”

       B.     Analysis

       “‘Relevant evidence’ means evidence, including evidence relevant to the

credibility of a witness or hearsay declarant, having any tendency in reason to prove or

disprove any disputed fact that is of consequence to the determination of the action.”

(Evid.Code, § 210.)

       “[C]haracter evidence is generally inadmissible to prove a person acted in

conformity with it on a given occasion.” (People v. Myers (2007) 148 Cal.App.4th 546,

552; Evid. Code, § 1101.) Evidence Code section 1103 provides for an exception to this

general rule as follows: “(a) In a criminal action, evidence of the character or a trait of

character (in the form of an opinion, evidence of reputation, or evidence of specific

instances of conduct) of the victim of the crime for which the defendant is being

prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered

by the defendant to prove conduct of the victim in conformity with the character or trait

of character. [¶] (2) Offered by the prosecution to rebut evidence adduced by the

defendant under paragraph (1).”

       It has been held that in a prosecution for a homicide or assaultive crime where

self-defense is raised, evidence of the violent character of the victim is generally

admissible to show the victim was the aggressor. (People v. Shoemaker (1982) 135

Cal.App.3d 442, 446.) An officer’s past use of excessive force is relevant to show


                                             15
whether he or she acted “in character” during the incident in question. (People v. Castain

(1981) 122 Cal.App.3d 138, 142.)

       We review for abuse of discretion a trial court’s rulings on relevance and

admission or exclusion of evidence under Evidence Code section 1103. (See People v.

Davis (2009) 46 Cal.4th 539, 602.)

       Here, defendant claims that the evidence was admissible not only to show

Ritchie’s character for overreacting in high-stress situations, but also that he resorted to

using excessive force.5 However, the evidence of the prior shooting proved neither of

these propositions. Defendant characterizes the incident with Lopez as involving

excessive force and that Ritchie overreacted but he presented no evidence in the trial

court to support this supposition. Ritchie described an incident where he commanded

Lopez to stop. When that was unsuccessful, and Lopez approached him in a menacing

manner, he shot at him once. When this still did not stop Lopez, he shot at him three

more times.

       The evidence presented as to the first incident did not support defendant’s

supposition that Ritchie used excessive force or had a character of overreacting in high-

stress incidents. Ritchie did not automatically resort to shooting at Lopez. Further,

Ritchie first tried to shoot Lopez in the buttocks, a non-lethal location. When Ritchie



       5      Defendant did not clearly state in the lower court that he was claiming that
Ritchie used excessive force; however, since defendant alternatively argues that he
received ineffective assistance of counsel if the claim is not reviewable on appeal, we
review the claim.


                                              16
continued to be threatened, Ritchie resorted to shooting Lopez. The prior incident did not

establish Ritchie used excessive force or that he had a character for overreacting.

       Moreover, even if the evidence was minimally relevant, it could be excluded under

Evidence Code section 352. Relevant evidence can be excluded if its probative value is

outweighed by its prejudicial effect. (Evid. Code, § 352.) Evidence Code section 352

states: “The court in its discretion may exclude evidence if its probative value is

substantially outweighed by the probability that its admission will (a) necessitate undue

consumption of time or (b) create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury.” The court’s ruling on the admission or exclusion of

evidence under Evidence Code section 352 “‘must not be disturbed on appeal except on a

showing that the court exercised its discretion in an arbitrary, capricious or patently

absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’

[Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

       Here, as argued by the prosecutor, the introduction of the evidence would have

resulted in an undue consumption of time. All of the parties involved in the Lopez

shooting incident would have to be called and testify. Further, the prosecutor intended to

call witnesses involved in other high-stress felony situations in which Ritchie was

involved to show he did not have a character for overreacting or excessive force. The

trial court did not err by concluding the probative value was outweighed by the potential

prejudice.




                                             17
       Defendant relies upon People v. Castain, supra, 122 Cal.App.3d 138 to support

his claim that the trial court erred. In Castain, the defendant was convicted of battery on

a peace officer and resisting arrest. (Id. at pp. 140-141.) The trial court excluded

testimony of a witness who claimed the officer had used excessive force on another

occasion. (Id. at p. 142.) The appellate court reversed, finding that the evidence was

relevant to show the officer had a propensity to use excessive force against citizens he

arrested or detained and, by inference, had acted “‘in character’” during his confrontation

with the defendant. (Id. at p. 143.)

       In Castain, the defendant offered evidence from the victim to show the officer

pulled the suspect from his car and severely beat him. (People v. Castain, supra, 122

Cal.App.3d at p.142.) Here, the only evidence that defense counsel offered to present

was Ritchie’s testimony. As noted above, there was nothing in that testimony that

supported that he overreacted or used excessive force. Further, the appellate court in

Castain noted that the testimony would be brief and that the prosecutor had delayed in

finding the rebuttal witnesses. (Id. at p. 143.) Here, the prosecutor intended to introduce

several other incidents to rebut defendant’s claim of Ritchie’s character which clearly

would result in an undue consumption of time. This case is easily distinguishable from

Castain.

       Moreover, even if we were to assume the trial court erred by excluding evidence

of Ritchie’s involvement in the prior shooting of Lopez, any such error was harmless

because it is not reasonably probable that a more favorable verdict would have occurred




                                             18
had the evidence been admitted. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-

1125; see also People v. Watson (1956) 46 Cal.2d 818, 836.)6

       No miscarriage of justice occurred in this case. Defendant was riding in a car in

which Paez had previously been seen. Paez had been involved in a shootout with

California Highway Patrol officers. Ritchie only followed the BMW because he thought

it was Paez in the car, which dispelled any claim that he was targeting defendant. Once

Ritchie realized it was not Paez in the car, he relaxed and moved his gun down. It was

then that defendant shot at Ritchie.

       The dispatch records support Ritchie’s version of the events. He radioed that Paez

was not in the vehicle. Then immediately, under the stress of the situation, stated “Shots

fired! Shots fired!’’ He also stated that defendant shot first and that he shot back.

Without time to think about the incident, Ritchie immediately reported that defendant had

shot at him first. This was strong evidence upon which the jury could conclude that

defendant shot at Ritchie first.




       6       Defendant contends that his federal constitutional rights to present a
defense were violated by the exclusion of the evidence, and therefore, the federal
standard of beyond a reasonable doubt of Chapman v. California (1967) 386 U.S. 18, 24
applies. However, “[T]he application of ordinary rules of evidence like Evidence Code
section 352 does not implicate the federal Constitution. . . .” (People v. Marks (2003) 31
Cal.4th 197, 226-227.) Nor do those rules impermissibly infringe on the accused’s right
to present a defense. (People v. Jones (1998) 17 Cal.4th 279, 305.) Defendant was
allowed to argue that he acted in self-defense and the jury was instructed on both
reasonable and unreasonable self-defense. The jury was also instructed that they had to
find that Ritchie was lawfully performing his duties as a peace officer in order to find
defendant guilty. Defendant was not denied a defense.


                                             19
       That defendant was the aggressor was further supported by evidence that other

shootings by WDL members occurred within the same period of time. During these

incidents, the WDL gang members initiated shootouts with law enforcement officers.

There was strong evidence that WDL gang members were targeting Desert Hot Springs

police officers.

       Based on the foregoing, any exclusion of the evidence pertaining to Ritchie being

involved in a prior shooting was harmless.

                                             IV

                         ADMISSION OF GANG TESTIMONY

       Defendant contends that the trial court erred by admitting “testimonial hearsay”

evidence by allowing Monis to testify regarding statements made by Gallegos to prove

the motive for the shooting was that WDL gang members hated Desert Hot Springs

police officers and that the shooting of Ritchie benefitted the WDL gang. Such

admission of testimonial hearsay violated his rights of confrontation as explicated in

Crawford v. Washington (2004) 541 U.S. 36, 53.

       A.     Additional Factual Background

       Prior to the first trial, defendant brought a motion in limine seeking to exclude

Monis’s testimony presented at the preliminary hearing that there was a war between the

WDL and Desert Hot Springs Police Department. According to the offer of proof, Monis

traveled to Arizona to speak with Gallegos. Gallegos told Monis that he had been present

with WDL members talking about shooting “cops.” He recalled a conversation, which




                                             20
involved defendant, where he or all of the members expressed a desire to ambush police

officers.

       Defendant argued the evidence was inflammatory and should be excluded

pursuant to Evidence Code section 352. Further, he argued the statements by Gallegos

were unreliable.

       Prior to the first trial, the trial court addressed the motion in limine. Monis

testified at an Evidence Code section 402 hearing. Monis testified essentially to the same

statements made by Gallegos and Escobar that were eventually presented at the trial.

Monis explained he went to talk to Gallegos because “it would be a good opportunity to

discuss with Everett Gallegos about multiple cases involving West Drive Loco gang

members that are currently pending and the history of the gang.” Monis specifically went

to the jail to discuss gang members and different cases. Gallegos spoke about other

pending cases.

       Monis’s opinion that the crime was committed for the benefit of the gang was

based on the territory where it was done and the hatred of WDL for Desert Hot Springs

police officers. Shooting at police officers instilled fear and intimidation in the

community. It was not common for gang members to discuss shooting law enforcement.

       Defense counsel argued that the People sought to admit statements made by

Gallegos and Escobar to show that defendant’s motive in the shooting was because of the

hatred of the WDL toward Desert Hot Springs police. Defense counsel argued that

although a gang expert could rely on hearsay, the trial court should consider the

reliability of the source of this information. Gallegos’s information was old. Any


                                             21
testimony by Monis about Gallegos should be excluded. Escobar was also unreliable.

The evidence was based on “unreliable hearsay and irrelevant evidence.” Further, the

evidence was prejudicial.

       The trial court, in making its ruling, noted that it took into account the importance

of the issue and the potential of prejudice. The issue had to be viewed in context. There

was a build up to the hatred between WDL and the Desert Hot Springs police that

resulted in the three shootings in a relatively short period of time. The arguments against

admitting the evidence by counsel went to the weight of the evidence rather than the

admissibility; all of the arguments could be made to the jury. The trial court admitted the

evidence.

       Defendant filed a similar motion in limine before the second trial. The parties

agreed that the trial court could review the transcripts from the Evidence Code section

402 hearing from the first trial. Defendant’s counsel again objected to any testimony by

Monis obtained from statements from Gallegos. Gallegos was unreliable because he had

a motive to lie in order to get transferred. Further, no testimony from Escobar should be

introduced. The evidence had to be reliable to be introduced and it simply was not

reliable. Gallegos and Escobar were not available for cross-examination; this was

unreliable hearsay. There was no possible way to defend against the statements. The

People responded that this was relevant motive evidence.




                                             22
       The trial court ruled, “The Court is going to allow it for purpose of motive only,

and the appropriate instruction for the basis for which the jury can consider this evidence

will be given to the jury to avoid any possibility that they use this information for an

improper purpose. So it will be allowed pursuant to 352 with this appropriate

instruction.”

       B.       Analysis

       We need not determine if the trial court erred by admitting the statements of

Gallegos through Monis’s testimony based on it being testimonial hearsay, as any

conceivable error was clearly harmless. Generally speaking, “[t]he erroneous admission

of expert testimony [including nontestimonial hearsay] only warrants reversal if ‘it is

reasonably probable that a result more favorable to the appealing party would have been

reached in the absence of the error.’ [Citations.]” (People v. Prieto (2003) 30 Cal.4th

226, 247, see also People v. Davis (2005) 36 Cal.4th 510, 538.) A trial court’s

determinations under Evidence Code section 352 is also reviewed under the state

standard. (People v. Gonzales (2011) 51 Cal.4th 894, 924). Crawford error, on the other

hand, and due process violations are assessed under the harmless-beyond-a-reasonable-

doubt standard of Chapman v. California, supra, 386 U.S. at p. 24. (People v. Mena

(2012) 54 Cal.4th 146, 159; People v. Archer (2000) 82 Cal.App.4th 1380, 1394.)

       Initially, defendant does not raise on appeal that the testimony from Escobar was

inadmissible testimonial hearsay. Escobar testified similarly to Gallegos in that he stated

there was a hatred for Desert Hot Springs police officers by WDL members. As such,




                                             23
even had Gallegos’s testimony been excluded as testimonial hearsay, Escobar’s

statements would have been admitted.

       Further, the jury was given a limiting instruction on the statements made by

Gallegos and Escobar. It stated, “Senior Investigator Ryan Monis and private

Investigator Enrique Tira testified that in reaching their conclusions as expert witnesses,

they considered statements by Everett Gallegos and Alejandro Escobar. You may

consider those statements only to evaluate the experts’ opinion[s]. Do not consider those

statements as proof that the statement contained in the statement is true.” Hence, we

must presume that the jury followed the limiting instruction and did not convict

defendant based only on these statements. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)

       Finally, as set forth ante, there was other considerable evidence presented that

defendant was the initial shooter in this incident. Further, based on the other shootings

around the same time, it was reasonably inferred by the jury that there was some sort of

objective by WDL gang members to shoot law enforcement. Based on the foregoing,

defendant cannot show prejudice by the admission of the statements made by Gallegos.

                                             V

               ACTIVE PARTICIPATION IN A GANG PURSUANT TO

                          SECTION 186.22, SUBDIVISON (a)

       Defendant argues that the evidence presented was insufficient to support his

conviction for active participation in a street gang pursuant to section 186.22, subdivision

(a) based on the recent California Supreme Court case of People v. Rodriguez (2012) 55

Cal.4th 1125 (Rodriguez). Respondent concedes in its brief that the conviction must be


                                             24
reversed.

       “The substantive offense defined in section 186.22[, subdivision] (a) has three

elements. Active participation in a criminal street gang, in the sense of participation that

is more than nominal or passive, is the first element of the substantive offense defined in

section 186.22[, subdivision] (a). The second element is ‘knowledge that [the gang’s]

members engage in or have engaged in a pattern of criminal gang activity,’ and the third

element is that the person ‘willfully promotes, furthers, or assists in any felonious

criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas (2007) 42

Cal.4th 516, 523.)

       The California Supreme Court has held that the third element of the offense is not

satisfied when a gang member commits a felony while acting alone. The word

“members,” as the Supreme Court explained, “is a plural noun.” (Rodriguez, supra, 55

Cal.4th at p. 1132.) “Therefore, to satisfy the third element, a defendant must willfully

advance, encourage, contribute to, or help members of his gang commit felonious

criminal conduct. The plain meaning of section 186.22[, subdivision] (a) requires that

felonious criminal conduct be committed by at least two gang members, one of whom

can include the defendant if he is a gang member.” (Ibid.) The felonious criminal

conduct referred to in the statute must be committed “‘by members of that gang.’” (Id. at

p. 1131.)

       Here, there was no evidence presented that a fellow WDL member was with

defendant when he shot at Ritchie. Defendant only provides citation to the record for the

first trial. However, defendant was convicted of the section 188.22, subdivision (a)


                                             25
offense at the first trial. We have only briefly reviewed the testimony from the first trial

in order to reach our conclusion that defendant was not accompanied by a fellow gang

member at the time he shot at Ritchie. Defendant had exited the car and the only

evidence before the jury was that his girlfriend was the driver. There was no evidence

that she was a WDL gang member and she had left the scene prior to the shooting.

Defendant only started shooting at Ritchie when he was alone.

       As such, we agree that defendant’s section 186.22, subdivision (a) conviction must

be reversed. Since the trial court stayed the sentence on this count, there is no impact on

the resulting sentence in this case.

                                             VI

                                  CUMULATIVE ERROR

       Defendant contends that the cumulative errors occurring at trial violated his

federal constitutional rights to due process mandating reversal. Even assuming error, and

viewing the errors as a whole, we conclude that any errors do not warrant reversal of the

judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)




                                             26
                                           VII

                                     DISPOSITION

       We strike defendant’s conviction of active gang participation pursuant to section

186.22, subdivision (a) in count 3. We order the clerk of the Riverside County Superior

Court to prepare an amended abstract of judgment and forward it to the Department of

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               RICHLI
                                                                               Acting P. J.

We concur:


MILLER
                          J.


CODRINGTON
                          J.




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