Filed 3/6/13 P. v. Pitney CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A128127
v.
PHILLIP PITNEY,                                                      (City & County of San Francisco
                                                                     Super. Ct. No. 209488)
         Defendant and Appellant.


         After a jury trial defendant Phillip Pitney was convicted of attempted murder
“done willfully and with deliberation and premeditation” (Pen. Code,1 §§ 187, subd. (a),
664) (count one), assault with a semiautomatic firearm (§ 245, subd. (b)) (count two); and
active participation in a criminal street gang (§ 186.22, subd. (a)) (count three). As to
counts one and two, the jury found true allegations of related sentence enhancements for
firearm use, great bodily injury, and that the crimes were committed for the benefit of, at
the direction of, or in association with a criminal street gang. (§§ 186.22, subd. (b)(1)(C),
12022.5, subd. (a), 12022.7, subd. (b), 12022.53, subd. (d).) As to count three, the jury
found true allegations of related sentence enhancements for firearm use (§ 12022.5, subd.
(a)) and great bodily injury (§ 12022.7, subd. (a)). The jury also found true allegations
that all counts were committed while defendant “was released from custody in a felony
offense, on bail and on his own recognizance.” (§ 12022.1.) The trial court sentenced
defendant on the first count (attempted murder) to an indeterminate term of life with a


1
     All further statutory references are to the Penal Code unless otherwise indicated.


                                                             1
minimum eligible parole date of 15 years (§ 186.22, subd. (b)(5)), plus a consecutive
term of 25 years to life for the personal use and intentional discharge of a firearm causing
great bodily injury during the commission of a life felony (§ 12022.53, subd. (d)).2 The
court imposed and then stayed determinate sentences and related sentence enhancements
on the other two counts.
       Defendant presents numerous arguments challenging his convictions and
sentences. We conclude none of defendant’s arguments requires reversal of his
convictions for attempted murder and assault or the jury’s true findings on related gang
sentence enhancements. However, we agree with defendant that there is insufficient
evidence to support his conviction for active gang participation, and we will reverse that
conviction, the true findings of the sentence enhancements related to that count, and
vacate the imposed sentences. We also conclude the matter must be remanded to correct
certain sentencing errors. In all other respects, the judgment is affirmed.
                 FACTUAL AND PROCEDURAL BACKGROUND
       By an information filed August 10, 2009, defendant was charged with attempted
murder, assault with a semiautomatic firearm, active participation in a criminal street
gang, and related sentencing enhancements. The following evidence was presented at the
ensuing jury trial held in October 2009.
       On April 12, 2009, Easter Sunday, the victim Ladarius Greer was shot several
times on McAllister Street (McAllister) outside an apartment complex known as the
Prince Hall Apartments. The apartment complex encompasses almost an entire city
block and has entrance gates on McAllister (south), Fillmore Street (west), and Golden
Gate Avenue (north). All the apartment buildings in the complex are two levels. The
second or top floor apartment on the McAllister side has a door facing the courtyard area
or the apartment complex offices and at least one window facing McAllister.


2
  As to count one, the court also stayed a two-year term imposed on the bail
enhancement, and dismissed both the related section 186.22, subdivision (b)(1)(C) gang
enhancement (People v. Lopez (2005) 34 Cal.4th 1002, 1007) and section 12022.7,
subdivision (a), great-bodily-injury enhancement (§ 12022.53, subd. (f)).


                                             2
       On the day of the shooting as Elena Brancato was walking on McAllister she saw
a “scuffle” between a young man wearing a hooded sweatshirt3 and the young victim
wearing a black hooded sweatshirt. When it looked like the men were going to fight, she
looked away because she did not want to watch the fight. She heard gunshots, and when
she looked again, the young man wearing the white hooded sweatshirt was crossing the
street and shooting a gun. Brancato heard about four or five gunshots but she did not see
anyone get shot. As the gunman walked passed her shooting, Brancato “quietly walked
away and kept on walking and never looked back.” She did not see the faces of the
victim or the gunman or where the gunman went after the shooting. She was able to
describe the gunman’s clothing and his physical characteristics except his facial features.
       Before the shooting firefighters Gavin McGoldrick and Stephanie McKnight had
responded to a medical call at a ground level apartment at the Prince Hall complex on the
Golden Gate Avenue side. At about 9 a.m., McGoldrick heard six to eight “real loud”
gunshots right outside the apartment and he immediately ran toward the sound of the
gunshots on McAllister. Seconds later, McGoldrick met a man running away from the
shooting. McGoldrick described the physical characteristics of the man and his clothing.4
One of the man’s hands was in his pocket and McGoldrick did not see a gun. As they
crossed paths inside the apartment complex, the man “pointed in the direction” and
repeatedly yelled, “They are shooting back there.” At that time the man was “jogging
fast.” McGoldrick then heard two unidentified persons from upper story apartments
shouting “that was the shooter, that was the shooter.”5 McGoldrick turned around and

3
  Brancato reportedly told the police that the gunman was wearing a “a white hoodie
with multicolored blue and black triangles.” At trial Brancato described the gunman’s
sweatshirt as primarily white with an overall pattern of geometric shapes of black and
turquoise.
4
  McGoldrick testified that the running man was wearing a white cotton “hoodie” with
about four or five different colored designs on it.
5
  On cross-examination, McGoldrick testified that when the people shouted from the
apartments, he assumed they were referring to the man who had just passed him as he
was the only person around. McGoldrick did not later talk to the shouters. The shouters
were at windows that faced into the courtyard of the apartment complex, not at windows

                                             3
chased the man who was by then running fast. McKnight also pursued the running man,
whom she described by his physical characteristics and clothing.6 The running man
stripped off his sweatshirt as he ran. McGoldrick grabbed the discarded sweatshirt and
continued to chase the man but he and McKnight were unable to catch him. McGoldrick
gave the sweatshirt to a police officer who put it into a paper evidence bag. The
sweatshirt was later logged in as evidence in the case at the police station, and the
sweatshirt was marked as defense exhibit A at the trial.7
       About 30 minutes to two hours after the shooting, McGoldrick and McKnight
separately viewed from 50 to over 170 photographs of known criminal gang members at
the police station. McGoldrick identified a photograph of defendant as looking “a lot
like” the man he chased through the apartment complex. In court McGoldrick identified
defendant as looking like the selected photograph and the man he saw running through
the complex. McKnight identified two photographs possibly looking like the man she
had chased; one of the photos was of defendant. In court McKnight identified defendant
as looking like the man she saw running from the apartment complex.
       San Francisco Police Officer William Ahern was the first officer to arrive at the
scene of the shooting. The victim was lying on the sidewalk. The victim said he had
been shot and the gunman had run into the Prince Hall Apartments. The victim described


facing towards McAllister. McGoldrick did not know if the shouters had seen the
shooting.
6
  McKnight testified the running man was wearing a rather large hooded zippered mostly
white sweatshirt with graphics covering the entire garment.
7
  Defense counsel questioned Brancato, McGoldrick, and McKnight regarding defense
exhibit A. Brancato said defense exhibit A, which had been shown to her just before her
testimony, was not the sweatshirt worn by the shooter. McGoldrick said defense exhibit
A was not the discarded sweatshirt that he had handed to an unidentified uniformed
police officer. After McGoldrick gave the discarded sweatshirt to the police officer,
McGoldrick did not see it again and he did not know if two sweatshirts had been logged
into evidence. McKnight said she would be able to identify the discarded sweatshirt if
she saw it again. When asked if defense exhibit A looked like the discarded sweatshirt,
McKnight said, “I remember it being more white,” and “[i]t looks similar, but there’s
something not quite right.”


                                              4
the gunman’s clothing—a white hoodie and brown pants, but he did not identify the
shooter.
       The day after the shooting San Francisco Police Officer Damon Jackson took over
as the investigating officer assigned to the case. He conducted a “follow-up
investigation, request for tests to be made, whether it be blood, DNA, gunshot residue.
Interviewing witnesses and suspects, victims, issuing warrants.” He did not order a DNA
analysis or gunshot residue (GSR) test on the recovered sweatshirt for several reasons:
the day after the shooting the victim had identified defendant as the shooter, the officer
had three unrelated identifications of defendant, there was an issue as to the timing of the
GSR test; and there was a backlog on DNA processing in San Francisco so that the
results would not have been available for either the preliminary hearing or the trial.
       Officer Jackson secured a video surveillance tape of the Prince Hall Apartments
that had been made on the day of the shooting. At “9:11:45,” the videotape showed an
unidentifiable person running from a gate on McAllister and through the courtyard of the
apartment complex. The person was wearing a “a hooded multicolored sweatshirt,
running.” The officer believed the sweatshirt admitted as defense exhibit A was the same
sweatshirt depicted in the still photographs taken from the videotape.
       Officer Jackson looked for defendant after the shooting. Defendant was required
to be at school five days a week pursuant to a court order as part of his probation. When
Jackson went to defendant’s school, the officer could not locate him there. A week after
the shooting, Officer Jackson arrested defendant at the office of defendant’s probation
officer. When Officer Jackson saw defendant, he commented that defendant was hard to
find. Defendant replied he had been at school. The officer responded the police had been
at defendant’s school every day and defendant had not been there.
       Officer Jackson also testified as the prosecution’s expert in San Francisco criminal
street gangs, specifically with respect to the Western Addition neighborhood where the
incident took place. He had been a police officer for nine years and at the time of the trial
he had been assigned to the Gang Task Force for about two and a half years. Since he
had been assigned to the gang task force he had attended two courses on gangs—a one-


                                             5
hour course and a two-day course. However, his expertise was based primarily on his
activities as a street officer and conversations with other officers regarding gang activity.
He had personally observed gang-related activity in the Northern District of the Western
Addition for about four years. He had personally executed about 50 search warrants at
the homes of gang members, conducted “hundreds” of specific criminal gang
investigations, handled “hundreds” of arrests concerning crimes committed by gang
members, and had “hundreds” of both consensual and/or investigatory conversations with
gang members. The conversations concerned the lifestyles and attitudes of criminal
street gang members and how gang members committed crimes.
       Officer Jackson described the nature of the Western Addition gangs. Unlike most
traditional gangs, Western Addition gang members tended to be more family-oriented.
The gang members might or might not live in the area, but they had family and friends
who lived in the area. A person became a member not by proving how tough he was, but
by having someone basically vouch for him. Western Addition gang members showed
their loyalty by confronting other gang members or individuals associated with gangs
from rival areas. “It could be something as simple as confronting them, asking them if
they are part of that group or organization. It can be shooting at rival gang members and
associates, it can be plain disrespect them, rob them.” Jackson had experience observing
or investigating crimes with regard to the robbery of gold chains, which item symbolized
a gang member’s status. Jackson also commented that if a gang member was
disrespected by someone and the gang member did not take action, then the gang member
would lose respect. A gang member’s act of violence had an impact on his stature and
the level of respect shown to him.
       Officer Jackson opined that as of April 12, 2009, Eddy Rock was a “criminal street
gang,” which was “an ongoing group or association” consisting of “three or more
people.” The gang members had common hand signals. Eddy Rock gang members had
recently adopted red bandanas, red clothing, and began using the phrase “Soo Woo,” “a
traditional blood call from the blood gang in LA.” On cross-examination, Jackson further
explained the composition and structure of the Eddy Rock gang. “The juveniles that are


                                              6
the only ones left in Eddy Rock now, they transitioned to this whole red Soo Woo
movement . . . . [T]he gangs are fluid due to death, incarceration, or someone just
moving out of the area. [¶] There’s been generations in Eddy Rock. The generation that
[the officer] was exposed to from the moment [he] got there [were] all incarcerated, on
the gang injunction, or have stay-away orders. [¶] The next generation . . . was
[defendant] and his friends. A lot of those individuals are on the gang injunction,
incarcerated, or have moved. [¶] So now you are left with the juveniles, and they identify
with the red. . . .” The officer believed if defendant was released, he would probably be
the oldest individual still in the gang even though he was only 19 years old. Eddy Rock
gang was not structured and did not have an “entrance incident” after which a person
became a gang member. Instead, a person became a member by “active participation” in
acts committed for the gang against other gangs, “knowledge of the criminal acts that
[were] being engaged [in] by members of that gang,” and “willingness to assist, promote
or further those acts in that gang.”
       Officer Jackson also opined that as of April 12, 2009, Eddy Rock gang members
engaged in a “pattern of criminal activity,” including narcotic sales, robbery, burglary,
murder, prostitution, auto burglaries, fencing of stolen goods, and the purchasing and
selling of firearms. Most of the property crimes were for monetary gain and the violent
crimes were to increase the gang members’ reputations and respect and for retaliation.
Officer Jackson identified defendant and two other men as members of the Eddy Rock
gang. The two known gang members had various convictions for narcotics, burglary, and
assault with a firearm. In 2008, defendant had been convicted of grand theft from a
person based on a June 26, 2008, offense during which “[a]n individual was robbed at
gunpoint in Eddy Rock Gang territory and stripped of his belongings.”
       Officer Jackson opined defendant was a gang member based on his documented
criminal history going back to 2003, his criminal activities with gang members over
many years, and his identification as a Eddy Rock gang member by rival gang members
who had spoken to the officer. In 2003 defendant was seen in the company of other gang
members entering a car that was burglarized; in 2005 defendant and other gang members


                                             7
were booked for attempted burglary and conspiracy to commit burglary; and in 2006
defendant and other gang members were booked for burglary and conspiracy to commit
burglary. In 2007, there were four documented reports of defendant’s activities with
known gang members: (1) defendant and numerous gang members were detained during
the execution of a search warrant where 17 rocks of base crack cocaine were found in the
unit block of Eddy that the gang claimed as its territory; (2) defendant was present at the
shooting involving a known gang member; (3) during the execution of a search warrant at
defendant’s residence, the police found numerous items of Eddy Rock gang “indicia,
being photos, documents of gang names, individuals who were gang members who might
be deceased, things of that nature;” and (4) defendant was seen in the company of gang
members who had been served with a copy of the City’s gang injunction. Officer
Jackson was personally involved in the execution of the search warrant at defendant’s
residence, and identified photographs depicting the gang-related items found in
defendant’s room. In June 2008, there were two incidents, including one that lead to
defendant’s pleading guilty to grand theft. In February 2009, there was a pending
criminal case against defendant based on an incident in which “four or five guys” were
found “cutting up a couple of ounces of marijuana.” In that case the court ordered
defendant to stay away from the “1200 block of Eddy as well as the codefendants in the
case.” In March 2009, the court further ordered defendant to attend a charter school five
days a week and to stay away from “pretty much all of the Eddy Rock territory.” Officer
Jackson also described an altercation between defendant and a Chopper City gang
member that occurred when defendant was incarcerated after the underlying shooting
incident in April 2009. According to Jackson, Chopper City gang members and Eddy
Rock gang members had been involved in retaliatory shootings and homicides over the
years. “The shootings have been consistent over the years since about 2005.” Defendant
had been involved in physical altercations with a couple of Chopper City gang members
“this year.” The officer had seen defendant “on video in an altercation with the same
individual he got in a fight with in the jail, in Prince Hall Apartments.”



                                              8
       At the time of his arrest in June 2008, defendant did not admit he was in a gang for
the purpose of jail cell classification. According to Jackson, defendant was “smart
enough to know that he didn’t want to classify himself as a gang member.” Defendant
said he had “friends who claim Fillmore and would rather be housed with them.”
Defendant “was housed with guys from the Fillmore. Because he did not give a specific
gang that he wanted to be housed with, he was housed with individuals from other gangs,
and he ended up getting into a fight with those individuals, in jail.” During his
incarceration for the current April 2009 offenses, defendant was again questioned about
his gang affiliation for the purpose of jail cell classification. When asked if he was part
of a gang, defendant stated, “I grew up in the Fillmore and got friends who bang,” but he
did not state Eddy Rock specifically.
       Based on his investigation, Officer Jackson believed defendant had committed the
charged crimes against Greer for the benefit of or in association of the Eddy Rock
criminal street gang because defendant was a gang member “[i]n the opinion of all of the
other gangs that surround Eddy Rock, they believe that [defendant] is an Eddy Rock gang
member.” “The act that took place on McAllister is two blocks from the police station,
it’s on Easter Sunday in front of numerous individuals right in between two churches,”
and the location was the place where “six individuals who are associates and members of
other gangs were shot almost in that same location in 2007.” It was very significant that
defendant, recognized as a Eddy Rock gang member, was in an area where six rival gang
members had been previously shot, the incident took place on a holiday, two blocks from
the police station, and the victim who was shot knew defendant. Even if no one else was
around, “the way that things happen in gang neighborhoods,” is that “individuals always
find out and know who shot another individual.” Consequently, defendant’s stature “is
upped by the shooting itself, the manner in which it was committed, no fear of witnesses,
no fear of location . . . .” The incident showed that “any time, anywhere outside of gang
turf in other members’ gang turf, if you are out and you have a problem with members of
Eddy Rock, this is how we handle it.”



                                              9
       In reaching his opinion, Jackson also considered two incidents between defendant
and the victim. A week before the shooting, defendant and a known gang member had
“robbed [the] victim of his gold medallion. [¶] . . . [¶] [m]aybe the chain.”8 On another
occasion, the victim and defendant met outside the Hall of Justice. Defendant tried to
shake the victim’s hand, but the victim refused because he did not shake anyone’s hand.
According to the victim, defendant felt disrespected, walked off, and said, “Let me go put
this thing up before I have to use it in a manner in which – acting as if he had a gun.”
However, the victim told the officer “there’s no way” defendant had a gun, and the victim
just left the Hall of Justice.
                                      DISCUSSION
I.     Admission of Evidence
       We review the trial court rulings regarding the admission of evidence for an abuse
of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) As we now
discuss, we conclude defendant’s challenges to the admission of certain evidence do not
require reversal.
       A.      Victim’s Statement that Defendant Shot Him
       1.      Relevant Facts
       Before trial the prosecutor sought permission to introduce the victim’s statement
that defendant was the shooter through the testimony of Officer Jackson who had
interviewed the victim on the day after the shooting. The prosecutor believed that,
although the victim had been subpoenaed to appear at trial, he would not appear and that
defendant was responsible for the victim’s failure to appear. The prosecutor argued that
as a consequence of defendant’s wrongdoing, he had forfeited his right of confrontation
8
   The victim’s mother Shaunte Spruell testified about the chain snatching incident as
described to her by the victim. As the victim was leaving his girlfriend’s home, he ran
into defendant and another man. Defendant “pulled a gun and they robbed him and took
his chain.” Spruell described the chain as “a long silver chain, a scorpion [medallion] on
it.” When the chain and medallion fell to the ground, the victim recovered the medallion
but not the chain. On cross-examination, Spruell stated that the victim, who knew
defendant, never reported the incident to the police. Spruell also denied that she told the
police the chain was a “gold” chain.


                                             10
as enunciated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny,
including Davis v. Washington (2006) 547 U.S. 813. After a hearing, the court found
defendant was not responsible for the victim’s failure to appear at trial. Consequently,
the court denied the prosecutor’s request to allow Officer Jackson to testify that the
victim had identified defendant as the shooter.
       However, the trial court reconsidered its ruling after defense counsel’s cross-
examination of two witnesses, Sergeant Tom Walsh and Officer Jackson, who both
confirmed that the police had not ordered a DNA test or gunshot residue (GSR) test of
defense exhibit A, which was the sweatshirt purportedly discarded by the shooter. 9
Defense counsel’s cross-examination prompted the prosecutor to request that Officer
Jackson be allowed to testify as to his reasons for not ordering the tests, which included
the fact that the day after the shooting the victim had identified defendant as the shooter.
       After considering defendant’s objections, the trial court granted the prosecutor’s
request to allow Officer Jackson’s testimony. In so ruling, the court explained: “As the

9
  During cross-examination of Sergeant Walsh, defense counsel questioned the officer
about the use of a gunshot residue (GSR) test on clothing to determine if a person had
recently fired a gun. The officer said GSR was considered “fleeting evidence,” and it
was recommended that it be collected within four hours of a person firing a weapon.
Although the timing was close, the officer believed the sweatshirt had been collected in
sufficient time to test it for GSR. However, no request was made and the sweatshirt was
not tested for the presence of GSR. At the conclusion of Walsh’s testimony, the court
asked the witness “some follow-up questions from the jurors.” The court asked, “Any
DNA evidence on the suspect’s sweatshirt?” The officer replied he did not know if a
DNA analysis was done on the suspect’s sweatshirt. “Clothing is a source of DNA. I
don’t know if any analysis was done on that.” The court also asked, “Would it be routine
CSI practice to test for GSR from a potential shooter’s clothing or a shooting crime
scene? The officer replied, “No. I only do that at the request of the investigating officer
who is assigned the case.” During cross-examination of Officer Jackson, defense counsel
asked the following questions: “Q. Now, as the officer in charge of the case, I think you
testified—[you’re] the fellow [who] would be in charge of asking for testing to be done
on the evidence? [¶] A. That’s correct. [¶] Did you ever ask that the suspected—[¶] The
sweatshirt supposedly worn by the suspect, did you ask that be tested for DNA? [¶] A. I
did not request tests on the sweatshirt due to the victim’s statement—[¶] [Defense
Counsel]: Excuse me, Your Honor. That’s nonresponsive and I would move to strike
any further . . . answer. [¶] The Court: Motion granted.”


                                             11
People have indicated and . . . Defense Counsel would also agree, the central issue in this
case is identification. [¶] The issue here is whether a statement, identifying defendant as
the perpetrator of a shooting, to the gang expert witness, Officer Jackson, by the victim,
. . . is now admissible to rehabilitate Officer Jackson’s testimony regarding the failure to
obtain various forensic tests from the jacket or sweatshirt seized by [the] police as part of
its investigation. [¶] The Court has already ruled . . . that [the victim’s] identification is
testimonial and therefore to be excluded. [¶] The statement was given to Officer Jackson
at a time, apparently, when the primary purpose of law enforcement was not to deal with
an ongoing emergency but to investigate the circumstances of a crime; i.e., . . . to
establish or prove some past fact . . . . [¶] However, the Court has found that Defense
Counsel has indeed opened the door [to the admission of the victim’s statement] by
asking Sergeant Walsh in one instance and Officer Jackson in another who was
responsible for obtaining tests, whether tests were ordered, and why DNA evidence, if
any, was not ordered recovered . . . from Defense Exhibit A[,] . . . which is the sweatshirt
[that] was discarded purportedly by the perpetrator of this offense. [¶] Defense Counsel
states that he intended to tread lightly with respect to cross-examination of Sergeant
Walsh and Officer Jackson with regard to DNA sampling only. [¶] But the effect of his
questions and the responses that he elicited is that he has opened the door to an inference
that Sergeant Walsh and particularly, Officer Jackson are to be faulted for not ordering
such tests in a case where identification is clearly the central issue before the jury. [¶]
Indeed, there were at least two questions posed by the jury that the Court asked of
Sergeant Walsh about DNA and GSR. . . . [¶] The Court is very concerned that if Officer
Jackson cannot . . . explain why the tests were not taken, that the jury would be misled as
to his credibility as a witness. [¶] The statement would be offered for a limited purpose,
not for the truth of the matter, [b]ut solely to explain why Officer Jackson did not order
these forensic tests.”
       The trial court also engaged “in an Evidence Code Section 352 analysis regarding
the admissibility of the statement. [¶] On the one hand, the Court is well aware of the
constitutional implications of the defendant’s right to confrontation and the prejudice


                                               12
resulting from the admission of the statement identifying defendant. [¶] On the other
hand, the Court has a responsibility to ensure . . . the integrity of the proceedings[,] . . . the
administration of justice and the interest[s] of justice, especially where it would be clearly
misleading to the Court and to the jury to exclude evidence which would explain why
Officer Jackson did not order such tests. [¶] After considering the papers, the oral
arguments of the counsel, and the applicable case law, and weighing the significance of
the evidence, the Court finds under [the] Evidence Code Section 352 balancing test that
in the interest[s] of justice, the probative value of the identification outweighs its
prejudicial value and impact on the jury; that accordingly, substantial prejudice would not
result.”
       The trial court ruled Officer Jackson would be limited to testifying that one of his
reasons for not ordering forensic tests was that the victim had said defendant was the
person who shot him. Officer Jackson was not permitted to use adjectives like “100
percent sure” regarding the victim’s identification or to refer to a “ ‘two-and-a-half-hour
interview’ ” with the victim.10
       2.      Analysis
       Defendant argues the trial court committed both federal constitutional and state
law error by admitting into evidence—through the testimony of Officer Jackson—the
victim’s statement identifying defendant as the shooter. We disagree.
       We initially conclude the trial court did not err in ruling that defendant opened the
door to the admission of the victim’s statement. U.S. v. Cruz-Diaz (1st Cir. 2008) 550
F.3d 169 (Cruz-Diaz) is instructive and persuasive authority supporting the trial court’s
ruling. In that case, defendants Angel Zamora Cruz-Díaz (Cruz) and José Alfredo Ayala-
10
  The trial court also ruled that defense counsel’s cross-examination of Officer Jackson
regarding his knowledge of the victim’s credibility would be limited. Although
defendant mentions this ruling, he presents no substantive argument that the ruling
requires reversal. Consequently, we do not further address the issue. (But see People v.
Brown (2003) 31 Cal.4th 518, 545-546 (Brown) [“ ‘[u]nless the defendant can show that
the prohibited cross-examination would have produced “a significantly different
impression of [the witness’s] credibility” [citation], the trial court’s exercise of its
discretion in this regard does not violate the Sixth Amendment.’ ”].)


                                               13
Colόn (Ayala) were convicted of several offenses arising from an armed bank robbery.
(Id. at pp. 171.) After the robbery, the police received information that defendants were
traveling in a red Mazda. (Ibid.) “Shortly thereafter, police officers discovered an
abandoned car matching this description. Near the car, they found [the defendants]. A
search of the area yielded a black plastic bag containing money from the bank. A search
of the red Mazda produced a bullet casing on the passenger’s seat. The bullet casing
corresponded with a nine-millimeter Luger brand bullet or cartridge. No guns, however,
were ever found.” (Id. at pp. 171-172, fn. omitted.) The trial court allowed an FBI agent
to testify regarding an out-of-court statement made by Cruz to the authorities. (Id. at
p. 175.) The agent testified “about Cruz’s statement after Ayala’s counsel, via cross-
examination, questioned a Puerto Rico police officer about the failure of the police to
pursue various investigatory options after [they] detained the two defendants.” (Ibid.)
“The agent, who was the ‘case agent’ for the investigation, explained that the FBI and
Puerto Rico police failed to pursue certain investigatory options because they believed
they had captured the right suspects. In doing so, the agent referred to Cruz’s out-of-
court statement while testifying that: [¶] [‘]I became aware at the time of the detention of
the two defendants that [Cruz] had stated to [the officer] who gained custody of him, that
. . . “the money is over there in a black bag, we already threw away the weapons,” and
something to the effect of, “we’re screwed, less than five minutes and they caught
us.” [’] ”(Ibid.)
        The First Circuit Court of Appeals rejected Ayala’s contention that his right of
confrontation as enunciated in Crawford had been violated by the admission of Cruz’s
statement. (Cruz-Diaz, supra, 550 F.3d at pp. 176, 178.) The court explained that
Ayala’s “trial strategy opened the door to the statement’s admission” (id. at p. 176) by
defense counsel “pointedly cross-examining a police officer about the decision not to
pursue certain investigatory opportunities after apprehending the defendants. Counsel
focused on potential fingerprint and DNA evidence the police could have gathered from
the red Mazda and sent for analysis. In total, Ayala’s counsel identified ‘eleven missed
opportunities’ to tie Ayala to the red Mazda. Faced with this line of questioning, the


                                             14
government sought to introduce the FBI agent’s testimony to explain why the FBI and
police did not lift forensic evidence from the car.” (Id. at p. 178.) The court also rejected
Ayala’s suggestion that the government could have entirely avoided mentioning Cruz’s
confession by having the agent testify “that the government chose to truncate the
investigation ‘because of information [the agent had].’ ” (Ibid.) “Given the tenor of
Ayala’s cross-examination about the authorities’ failure to investigate further, the use of
the generalized narrative Ayala suggests would have come at an unjustified cost to the
government. During cross-examination, Ayala’s counsel painted a picture of police and
FBI ineptitude, observing that the government missed eleven opportunities to tie Ayala to
the car, and thus, to the crime. Generalized testimony limited to an explanation such as
‘we stopped investigating because of information received,’ without any context, would
not have sufficiently rebutted Ayala’s line of questioning.” (Ibid.) The court concluded
by noting that the case before it “fits comfortably within the rule of” Tennessee v. Street
(1985) 471 U.S. 409. (Cruz-Diaz, supra, at p. 179.) “[T]he district court admitted Cruz’s
out-of-court statement not to prove the truth of the matter asserted but to rebut Ayala’s
attempt to cast doubt on the integrity of the government’s investigatory efforts. The
district court instructed the jury as to the limited nature of the statement’s admission.
And the government’s interest in introducing the substance of the confession, rather than
a more sanitized narrative, was both legitimate and strong.” (Id. at pp. 179-180.)
       Although defendant cites Cruz-Diaz, he does not distinguish the case from the
circumstances presented here. Instead, he asks us to consider an earlier federal Sixth
Circuit Court of Appeals decision in which the court held that even if the defendant opens
the door to the admission of a testimonial out-of-court statement, such conduct is not
sufficient “to erase” the violation of the confrontation right. (U.S. v. Cromer (6th Cir.
2004) 389 F.3d 662, 679 (Cromer).) However, the Cromer decision cites no authority for
the proposition that a defendant cannot open the door to the admission of evidence that
would be otherwise barred by the Confrontation Clause. Additionally, the United States
Supreme Court has subsequently held that its Crawford decision is not a watershed rule
necessary to the fundamental fairness of a trial and the accuracy of criminal proceedings.


                                             15
(Whorton v. Bockting (2007) 549 U.S. 406, 409, 417-421 [refusing to apply Crawford
rule retroactively to cases already final on direct review].) Thus, we agree with those
federal and state courts that have rejected Cromer and held that “ ‘a defendant can open
the door to the admission of evidence otherwise barred by the Confrontation Clause.’ ”
(People v. Reid (2012) 19 N.Y.3d 382, 387-388, and the cases cited therein.) As the
court explained in Reid, “If evidence barred under the Confrontation Clause were
inadmissible irrespective of a defendant’s actions at trial, then a defendant could attempt
to delude a jury ‘by selectively revealing only those details of a testimonial statement that
are potentially helpful to the defense, while concealing from the jury other details that
would tend to explain the portions introduced and place them in context’ [citation]. A
defendant could do so with the secure knowledge that the concealed parts would not be
admissible under the Confrontation Clause. To avoid such unfairness and to preserve the
truth-seeking goals of our courts [citation], we hold that the admission of testimony that
violates the Confrontation Clause may be proper if the defendant opened the door to its
admission.” (Id. at p. 388.)
       Like the situation in Cruz-Diaz, supra, 550 F.3d at p. 177, in this case defendant’s
counsel pointedly questioned Sergeant Walsh and Officer Jackson about pursuing
investigatory opportunities after apprehending defendant. Defense counsel focused on
potential gunshot residue and DNA evidence the police could have gathered from the
sweatshirt and sent for analysis. Faced with that line of questioning, the prosecutor
sought to introduce evidence explaining why Officer Jackson, the investigating officer,
did not order the forensic tests. In opposing the prosecutor’s request, defense counsel
said he intended to put at issue the integrity of the police investigation by questioning the
witnesses about forensic tests. Indeed, counsel specifically conceded that even if the
court had made an advance ruling that such questioning would open the door to the
admission of the victim’s statement, counsel would still have chosen to question the
witnesses on the issue.
       We also reject defendant’s argument that the trial court should have adopted his
counsel’s suggestion that Officer Jackson not mention the substance of the victim’s


                                             16
statement. The prosecutor’s “interest in introducing the substance of the [victim’s
statement], rather than a more sanitized narrative, was both legitimate and strong.”
(Cruz-Diaz, supra, 550 F.3d at pp. 179-180; see People v. Scheid (1997) 16 Cal.4th 1, 16
[“it is immaterial for purposes of determining the relevance of evidence that other
evidence may establish the same point”].) At the time the issue arose, the trial court here
was faced with a defense strategy that had put at issue the integrity of the police
investigation as reflected by defense counsel’s cross-examination and the jurors’
questions. The jury had also heard testimony that the victim had not identified the
shooter on the day of the shooting. Thus, the trial court reasonably could have found that
a vague reference to an interview with the victim the day after the shooting would not be
sufficient to permit the jury to make an informed decision regarding the reasonableness
of the officer’s conduct in failing to order forensic tests.
       Concededly, a victim’s identification of a defendant as the perpetrator is the most
prejudicial type of evidence because it is highly probative evidence. However,
“ ‘[p]rejudice for purposes of Evidence Code section 352 means evidence that tends to
evoke an emotional basis against the defendant with very little effect on issues, not
evidence that is probative of a defendant’s guilt.’ ” (People v. Valdez (2012) 55 Cal.4th
82, 133.) “ ‘[E]vidence should be excluded as unduly prejudicial when it is of such
nature as to inflame the emotions of the jury, motivating them to use the information, not
to logically evaluate the point upon which it is relevant, but to reward or punish one side
because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly
prejudicial because of the substantial likelihood the jury will use it for an illegitimate
purpose.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 438-439 (Doolin).) In this case, the
challenged testimony was not of a character that required the court to exclude it as being
more prejudicial than probative. There was nothing inflammatory in Officer Jackson’s
brief references to the victim’s statement. In closing arguments, both defense counsel
and the prosecutor informed the jurors of the limited purpose for which they could
consider the victim’s statement made to Officer Jackson. The trial court also “drove this
point home to the jury on two separate occasions.” (Cruz-Diaz, supra, 550 F.3d at


                                              17
p. 177.) At the time Officer Jackson gave the challenge testimony, the court advised the
jury the victim’s statement was not being offered for the truth of the matter but to explain
why the officer did not order forensic tests as part of his investigation. When giving the
jury its final instructions, the court again advised the jury: “During the trial, certain
evidence was admitted for a limited purpose. You may consider that evidence only for
that purpose and for no other. [¶] The statement by [the victim] is not offered for the truth
of the matter, but to explain why Officer Jackson did not order forensic tests as part of his
investigation.”
       We see no merit to defendant’s various arguments that the admission of the
victim’s statement was so prejudicial as to render his trial fundamentally unfair in
violation of his right to due process. “To the extent defendant on appeal raises a federal
constitutional claim distinct from his claim that the trial court abused its discretion [in
admitting the evidence], he forfeited this claim by failing to identify that ground in his
objections to the trial court. [Citation.] To the extent any constitutional claim is merely a
gloss on the objection raised at trial, it is preserved but is without merit because the trial
court did not abuse its discretion” in admitting the evidence. (People v. Riggs (2008) 44
Cal.4th 248, 292 (Riggs).) Specifically, we see no merit to defendant’s argument that the
jury could not have realistically been expected to limit the use of the victim’s statement
to its evaluation of Officer Jackson’s reasons for not ordering forensic tests. “The
assumption that jurors are able to follow the court’s instructions fully applies when rights
guaranteed by the Confrontation Clause are at issue.” (Tennessee v. Street, supra, 471
U.S. at pp. 415-416, fn. 6; see People v. Fuiava (2012) 53 Cal.4th 622, 689 & fn. 24
(Fuiava).) “Jurors are routinely instructed to make . . . fine distinctions concerning the
purposes for which evidence may be considered, and we ordinarily presume they are able
to understand and follow such instructions.” (People v. Yeoman (2003) 31 Cal.4th 93,
139.) Defendant has not demonstrated nor does the record indicate either a reasonable
possibility or a substantial likelihood that the jurors failed to comply with the instructions
and considered the victim’s statement for an improper purpose.



                                              18
       We also see no merit to defendant’s contention that the victim’s statement was
unreliable hearsay and did not meet the requirements for the declarant’s state of mind
exception to the hearsay rule pursuant to Evidence Code section 1250. The victim’s
statement was not hearsay and therefore its admissibility was not subject to the hearsay
rule or any exception to that rule. “[A]n extrajudicial statement is hearsay evidence only
when it ‘is offered to prove the truth of the matter stated.’ (Evid. Code, § 1200.)”
(People v. Anthony O. (1992) 5 Cal.App.4th 428, 435.) Here, the victim’s statement “is
an example of ‘ “one important category of nonhearsay evidence—evidence of a
declarant’s statement that is offered to prove that the statement imparted certain
information to the hearer and that the hearer, believing such information to be true, acted
in conformity with that belief. The statement is not hearsay, since it is the hearer’s
reaction to the statement that is the relevant fact sought to be proved, not the truth of the
matter asserted in the statement.” ’ ” (People v. Livingston (2012) 53 Cal.4th 1145, 1162,
italics added; see Fuiava, supra, 53 Cal.4th at p. 689 [court properly admitted testimony
that witness heard someone say defendant “ ‘did it’ ” for the nonhearsay purpose of
establishing witness’s state of mind]; People v. Samuels (2005) 36 Cal.4th 96, 122 [court
properly admitted out-of-court statement to explain witness’s subsequent actions].)
       B.     Anonymous Persons’ Statements That Defendant Was the Shooter
       1.     Relevant Facts
       Before trial the prosecutor moved in limine to admit the testimony of firefighter
McGoldrick that immediately after the shooting defendant ran by him, spontaneously
saying, “They’re shooting over there,” and as defendant ran passed him, McGoldrick
heard two people shout that the running man was the shooter. The prosecutor argued the
anonymous persons’ statements were admissible as spontaneous declarations pursuant to
Evidence Code section 1240.
       At an Evidence Code section 402 hearing to determine the admissibility of the
evidence, McGoldrick testified that after hearing six or eight gunshots, he ran in the
direction of the sound of the gunshots. He encountered a man, whom he later identified
as defendant, who looked at McGoldrick and said, “They are shooting back there,” and


                                              19
defendant pointed in the direction of the gunshot sounds. After McGoldrick and
defendant passed each other, McGoldrick heard two voices coming from the second or
third story of the apartment complex. He looked up, and saw two faces each in a
different window behind screens. The people were looking down at McGoldrick and
repeatedly saying, either “He was the shooter,” or “That’s the shooter.” McGoldrick
assumed the people “saw the shooter and saw it go down,” and were talking about the
man who had just passed McGoldrick because that man was the only person who had
passed McGoldrick. McGoldrick turned around and chased defendant. McGoldrick
heard the people in the windows shouting maybe 30 or 40 seconds after he had initially
heard the gunshots and ran towards the sound of the gunfire. The trial court ruled
McGoldrick would be permitted to testify regarding the statements made by the
anonymous persons: “The declarant[s], that is, the individuals who stated ‘That’s the
shooter,’ described, explained that condition or event. It is spontaneously made under
stress and exciting event. There’s no reflection here, and the statement relates to the
event which causes it. [¶] And the Court, hearing this, . . . clearly believes that this is a
statement admissible under Evidence Code section 1240 as an exception to the hearsay
rule. It is a spontaneous statement. It meets all of the conditions for its admission.”
       2.     Analysis
       Defendant argues the trial court committed both federal constitutional and state
law error by admitting into evidence, through the testimony of McGoldrick, the
anonymous persons’ statements that defendant was the shooter. We disagree.
       “Evidence of a statement is not made inadmissible by the hearsay rule if the
statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event
perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was
under the stress of excitement caused by such perception.” (Evid. Code, § 1240.) In
order to qualify as a spontaneous declaration,“(1) there must be some occurrence startling
enough to produce this nervous excitement and render the utterance spontaneous and
unreflecting; (2) the utterance must have been before there has been time to contrive and
misrepresent, i.e., while the nervous excitement may be supposed still to dominate and


                                               20
the reflective powers to be yet in abeyance; and (3) the utterance must relate to the
circumstance of the occurrence preceding it.” (People v. Poggi (1988) 45 Cal.3d 306,
318 (Poggi); see Brown, supra, 31 Cal.4th at pp. 540-541.) Whether the requirements of
Evidence Code section 1240 are met is largely a question of fact within the discretion of
the trial court, and “ ‘each fact pattern must be considered on its own merits . . . .’ ”
(People v. Riva (2003) 112 Cal.App.4th 981, 995 (Riva); see Poggi, supra, at p. 318.)
   Defendant argues there was insufficient foundational evidence to admit McGoldrick’s
testimony because “[t]here was no evidence at all that the anonymous [persons] actually
witnessed the shooting or were even in a position to have witnessed it.” However, “[t]he
Evidence Code does not use the term ‘witnessed by.’ Rather, it refers to an act,
condition, or event ‘perceived by’ the declarant. (Evid. Code, § 1240, subd. (a).) . . .
[S]pontaneous statements may include the ‘ “ ‘sincere expression’ ” ’ of the speaker’s
‘ “ ‘actual impressions and belief.’ ” ’ ” (People v. Blacksher (2011) 52 Cal.4th 769, 810
(Blacksher) [court upholds admission of declarant’s out-of-court spontaneous statements
that defendant shot the victims despite declarant’s in-court testimony that she could not
see into the dining room where the shots were fired and she did not tell anyone she had
actually seen the shootings].) The “ ‘foundation, or preliminary fact [required to admit a
spontaneous statement], require[s] only proof by a preponderance of the evidence.
[Citation.] In making its factual determination the trial court exercises discretion.
[Citation.] If substantial evidence supports the exercise of that discretion we must uphold
it.’ ” (People v. Gutierrez (2000) 78 Cal.App.4th 170, 177-178 (Gutierrez).)
       Gutierrez is instructive and persuasive authority supporting the trial court’s ruling.
In that case, a family was robbed by two men at gunpoint in a parking lot. (Gutierrez,
supra, 78 Cal.App.4th at p. 173.) Soon after the robbers departed, one victim was
approached by an unidentified man who handed him a piece of paper with a license plate
number written on it. (Id. at pp. 173, 176.) The man, who appeared nervous and scared,
said he had taken the license plate number. (Id. at p. 176.) The police later determined
the license plate number had been assigned to the van used as the robbers’ getaway
vehicle. (Id. at p. 173.) The trial court did not allow testimony as to what the


                                              21
unidentified man said when he handed the piece of paper to the victim. (Id. at p. 176.)
However, the court allowed into evidence the piece of paper containing the license plate
number as a spontaneous statement under Evidence Code section 1240. (Ibid.) The
appellate court upheld the ruling. (Id. at p. 181.) “Although no direct evidence was
introduced on the point, there was evidence from which it could be inferred the declarant
had witnessed the robbery. . . . ‘According to [the robbery victim,] he was robbed in the
parking lot of a market and the two suspects got into a mini-van and drove away . . . .
The unidentified man then approached [the robbery victim] and gave him the license
plate number of the mini-van, which he had written down. . . . Had the unidentified man
not witnessed the robbery, there would have been no reason for him to write down the
license plate number and give it to [the robbery victim].’ ” (Id. at p. 178.)
       As in Gutierrez, the trial court here reasonably could infer that the anonymous
persons had seen the shooting. In the absence of any evidence that the anonymous
persons knew defendant, there would have been no reason for them to shout at
McGoldrick to cause him to turn around and pursue defendant unless they had seen the
shooting. (Gutierrez, supra, 78 Cal.App.4th at p. 178.) Defendant’s arguments as to why
the anonymous persons might have identified him even if they had not seen the shooting
go to the weight of the evidence, not its admissibility. (See Blacksher, supra, 52 Cal.4th
at p. 811; see Riva, supra, 112 Cal.App.4th at p. 996.) Also, the trial court here could
reasonably infer the anonymous persons were acting under the stress of having seen the
shooting and before they had a chance to reflect on their statements. Although
McGoldrick could not see the anonymous persons or describe the tone of their voices,
they repeatedly yelled at him seconds after he had heard the gunfire and crossed paths
with defendant. (See McLaughlin v. Vinzant (1st Cir. 1975) 522 F.2d 448, 451 [court
could permissibly draw inference that declarant possessed firsthand knowledge of killing
leading her to announce defendant shot the victim from the force of the statement and the
fact she was somewhere in the vicinity of the fatal event even though there was no
evidence of precisely where declarant was and what events she witnessed].) At best,
defendant’s arguments demonstrate only that a court might have concluded the


                                             22
statements did not constitute spontaneous declarations. The arguments “simply do[ ] not
show that a court was unable to arrive at the opposition conclusion. Therefore, [they do]
not establish an abuse of discretion.” (People v. Gordon (1990) 50 Cal.3d 1223, 1253,
overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835; see also
People v Thomas (2011) 51 Cal.4th 449, 496 [“ ‘[T]he discretion of the trial court is at its
broadest’ when it determines whether an utterance was made while the declarant was still
in a state of nervous excitement. ”].)
       Defendant also contends the admission of the anonymous persons’ statements
violated his rights under the confrontation clause as enunciated in Crawford and its
progeny. However, as defendant correctly concedes, he did not specifically lodge a
confrontation clause objection to the admission of the statements.11 Defendant’s
“objection [in the trial court]—that the [statements] did not come within a state-law
exception to the hearsay rule . . . presented legal issues different from those underlying an
objection that the admission of testimony would violate the confrontation clause.
Therefore, defendant’s new objection on appeal is not merely a constitutional ‘gloss’
upon an objection raised [in the trial court], and is forfeited.” (People v. Redd (2010) 48
Cal.4th 691, 730, fn. 19 [hearsay objection did not preserve confrontation clause
objection].)
       Even if the confrontation clause claim had been preserved, it would fail because
the anonymous persons’ statements were not “testimonial hearsay subject to
[defendant’s] right of confrontation.” In determining whether a statement, otherwise
admissible under a hearsay exception, is testimonial, “[i]t is the ‘primary purpose of
creating an out-of-court substitute for trial testimony’ that implicates the confrontation
clause.” (Blacksher, supra, 52 Cal.4th at p. 813, quoting from Michigan v. Bryant (2011)
562 U.S. __, ___ [131 S. Ct. 1143, 1155] (Bryant).) “Bryant counsels that to determine


11
   The prosecutor’s motion in limine to admit the anonymous persons’ statements
included an argument that the evidence would not violate defendant’s rights under the
confrontation clause. Defendant presented no opposing argument and neither party asked
the trial court to rule on the confrontation clause issue.


                                             23
the primary purpose with which a statement is given by the declarant or obtained by an
officer[12] a court must consider a number of factors,” including: (1) an objective
evaluation of “the circumstances of the encounter along with the statements and actions
of the parties;” (2) an objective analysis of “whether an ‘ “ongoing emergency” ’ exists,
or appears to exist, when the statement was made,” and whether “an ongoing emergency
focuses the participants on something other than obtaining evidence for trial;” (3) “[a]
nontestimonial encounter addressing an emergency may evolve, converting subsequent
statements into testimonial ones”; and (4) “regardless of the existence of an emergency,
the informality of the statement and the circumstances of its acquisition . . . .”
(Blacksher, supra, at pp. 813-815.)
       Defendant asserts the statements were testimonial because the anonymous persons
were not in danger and seeking help but rather they were identifying the perpetrator.
However, we are not here concerned with “ ‘the subjective or actual purpose of the
individuals involved in a particular encounter.’ ” (Blacksher, supra, 52 Cal.4th at
p. 813.) The relevant inquiry is “ ‘the purpose that reasonable participants would have
had, as ascertained from the individuals’ statements and actions’ in the given situation.”
(Id. at p. 813; italics added.) In other words, “when viewed objectively, what is the
primary purpose of both declarant and officer?” (Id. at p. 814.) “Even when a threat to
an initial victim is over, a threat to first responders and the public may still exist.” (Ibid.)
Objectively viewing the circumstances in this case there is no reasonable basis to
conclude the anonymous persons’ identifications of defendant as the shooter were made
or received “to create an out-of-court substitute for trial testimony.” (Id. at p. 816.) The
primary purpose of both the anonymous persons and McGoldrick “was to determine
defendant’s whereabouts and evaluate the nature and extent of the threat he posed.”
(Ibid.) Nor can we draw a reasonable inference that the anonymous persons’ statements
12
   Although the United States Supreme Court has not yet determined whether
“ ‘ “statements made to someone other than” ’ a law enforcement officer might be
testimonial [citation],” we assume for purposes of our discussion that McGoldrick, a
uniformed firefighter, may be considered an officer who is “required by law to assist in
police investigations.” (Blacksher, supra, 52 Cal.4th at p. 813 & fn. 27.)


                                               24
were not “the ‘ “ ‘sincere expression’ ” ’ of the speaker[s’] ‘ “ ‘actual impressions and
belief.’ ” ’ ” (Id. at p. 810.) Thus, even if the matter was before us, we would conclude
defendant’s confrontation clause rights had not been violated because the anonymous
persons’ statements were not testimonial. (Id. at pp. 810-811, 817 [witness’s out-of-court
statements identifying defendant as shooter made to police officer shortly after incident
were not testimonial as “[i]t was objectively reasonable to believe that an armed shooter
remained at large and presented an emergency situation,” and the “primary purpose for
both [witness and police] was to determine defendant’s whereabouts and evaluate the
nature and extent of the threat he posed”]; see Bryant, supra, 131 S.Ct. at pp. 1164, 1167
[victim’s out-of-court statements identifying defendant as shooter made to police officer
were not testimonial as statements were made during continuing emergency that went
beyond any private dispute between the victim and defendant and neither victim nor
police knew current location of armed shooter].)
       C.     Defendant’s Prior Uncharged Gunpoint Chain Snatching Incident
              Involving the Victim
       1.     Relevant Facts
       Before the jury heard the testimony of Shaunte Spruell, the victim’s mother, the
court held an Evidence Code section 402 hearing to consider whether the witness would
be allowed to testify regarding certain statements the victim made to her. At the hearing,
Spruell testified that about two weeks before the shooting the victim told her about a
nighttime incident that occurred at the house of the victim’s girlfriend. As the victim left
the house, he was approached by defendant and another man. Defendant “pulled a gun
on” the victim and the other man snatched a chain from the victim’s neck. The
prosecutor argued the proffered testimony was nonhearsay offered for the limited purpose
of demonstrating defendant’s motive and intent. In response to the court’s inquiry, the
prosecutor argued the motive behind the shooting was gang-related, and defendant had
committed the chain snatching with a “documented person in the Eddy Rock gang” and
“identified on the gang injunction,” and “[n]ot only does [defendant] have it in for [the
victim], but his whole crew has it in for [the victim] any time he’s around the Eddy Rock


                                             25
area.” Defendant objected to the admission of the evidence on the ground that Spruell’s
testimony would be more prejudicial than probative. The trial court ruled Spruell would
be allowed to testify as to the uncharged gunpoint chain snatching to show defendant’s
motive.
       2.     Analysis
       Defendant argues the trial court committed both federal constitutional and state
law error by admitting into evidence Spruell’s testimony regarding the prior gunpoint
chain snatching incident. We disagree.
       Even if it is weak, “[e]vidence is relevant if it tends ‘ “logically, naturally and by
reasonable inference” to establish material facts such as identity, intent, or motive.’ ”
(People v. Williams (2008) 43 Cal.4th 584, 633-634; see People v. Clark (1992) 3 Cal.4th
41, 127 [“[e]vidence of motive was relevant to the disputed issue of identity”].) “Without
doubt, evidence a defendant committed an offense on a separate occasion is inherently
prejudicial. [Citations.] But Evidence Code section 352 requires the exclusion of
evidence only when its probative value is substantially outweighed by its prejudicial
effect. ‘Evidence is substantially more prejudicial than probative [citation] [only] if,
broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the
reliability of the outcome.” ’ ” (People v. Tran (2011) 51 Cal.4th 1040, 1047; see People
v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 [“ ‘[b]ecause a motive is ordinarily the
incentive for criminal behavior, its probative value generally exceeds its prejudicial
effect, and wide latitude is permitted in admitting evidence of its existence.’ ”].)
       We conclude the trial court did not abuse its discretion in refusing to exclude
Spruell’s testimony. The evidence of defendant’s prior confrontation with the victim was
more than “minimally relevant to any legitimate purpose”—demonstrating defendant’s
motive in committing the charged offenses—and was not “a dominant part of the
evidence against” defendant. (People v. Collie (1981) 30 Cal.3d 43, 64 (Collie).)
Defendant contends Spruell’s testimony should have been excluded because the
information about the incident came from the victim who had an obvious interest in the
outcome of the trial, the victim failed to appear in court and could lodge accusations


                                              26
without fear he would be held accountable, a police report was not filed regarding the
incident, and there was no corroborating evidence suggesting the incident even occurred.
However, these arguments go to the weight of the evidence, not its admissibility. The
testimony of the prior gunpoint chain snatching incident was no more inflammatory than
the testimony about the charged offenses of attempted premeditated murder and assault
with a semi-automatic pistol in broad daylight on Easter Sunday. Although the court did
not give a limiting instruction on the use of the Spruell’s testimony, “ ‘it was obvious for
what purpose [the challenged evidence] was being admitted.’ ” (People v. Hernandez
(2004) 33 Cal.4th 1040, 1053 (Hernandez); see Collie, supra, at pp. 63-64 [court has no
sua sponte duty to give limiting instruction on evidence of defendant’s past criminal
conduct].)13 “Evidence of past offenses may not improperly affect the jury’s
deliberations if the facts are equivocal, the charged offense is dissimilar, or the evidence
is obviously used to effect one or more of the many legitimate purposes for which it can
be introduced.” (Collie, supra, at p. 64.) This is not one of those extraordinary cases in
which the court’s failure to give a limiting instruction requires reversal because the
challenged evidence was “ ‘a dominant part of the evidence against the accused, and is
both highly prejudicial and minimally relevant to any legitimate purpose.’ ” (Hernandez,
supra, at pp. 1051-1052.) On this record it is neither reasonably probable nor
substantially likely that the jury would have reached a more favorable decision had the
court given a limiting instruction.
       We also see no merit to defendant’s arguments that the admission of Spruell’s
testimony without a limiting instruction violated his right to due process. “To the extent
defendant on appeal raises a federal constitutional claim distinct from his claim that the
trial court abused its discretion [in admitting the challenged evidence], he forfeited this
claim by failing to identify that ground in his objections to the trial court. [Citation.] To


13
   In closing argument the prosecutor referred to Spruell’s testimony as evidence of
defendant’s motive for the shooting. In response, defense counsel attacked Spruell’s
testimony, noting the prior chain snatching incident had not been reported to the police,
and the evidence was not admitted for its truth but on the issue of motive.


                                             27
the extent any constitutional claim is merely a gloss on the objection raised at trial, it is
preserved but is without merit because the trial court did not abuse its discretion.”
(Riggs, supra, 44 Cal.4th at p. 292.)
       D.     Gang Expert’s Testimony
       Defendant challenges the admission of Officer Jackson’s testimony as a gang
expert on the ground that the witness was allowed to testify to numerous hearsay to
support his opinions. Defendant specifically objects to “statements in police reports
about criminal conduct committed by Eddy Rock members; statements in police reports
that [defendant] was hanging out with Eddy Rock members; and statements by members
of other rival gang members that [defendant] was in fact an Eddy Rock gang member.”
According to defendant, the admission of this evidence “violated [his] right of
confrontation” and his “due process right not to have unreliable hearsay admitted at trial.”
We conclude defendant’s contentions do not require reversal.
       “ ‘Under Evidence Code section 801, expert opinion testimony is admissible only
if the subject matter of the testimony is “sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact.” (Id., subd. (a).) The subject matter of
the culture and habits of criminal street gangs . . . meets this criterion.’ [Citation.]”
(People v. Vang (2011) 52 Cal.4th 1038, 1044 (Vang).) Additionally, “[d]espite the
circumstance that it is the jury’s duty to determine whether the prosecution has carried its
burden of proof beyond a reasonable doubt, opinion testimony may encompass ‘ultimate
issues’ within a case. Evidence Code section 805 provides that ‘[t]estimony in the form
of an opinion that is otherwise admissible is not objectionable because it embraces the
ultimate issue to be decided by the trier of fact.’ ” (People v. Prince (2007) 40 Cal.4th
1179, 1227 (Prince), quoting People v. Valdez (1997) 58 Cal.App.4th 494, 507 (Valdez).)
“Because an expert’s need to consider extrajudicial matters and a jury’s need for
information sufficient to evaluate an expert opinion may conflict with an accused’s
interest in avoiding substantive use of unreliable hearsay, disputes in this area must
generally be left to the trial court’s sound judgment. ” (Id. at p. 510.)



                                              28
       We conclude the trial court properly allowed Officer Jackson to testify that his
opinions were based, in part, on information derived from his personal conversations with
rival gang members and police reports prepared by other officers. (Evid. Code, § 801,
subd. (b);14 People v. Gonzalez (2006) 38 Cal.4th 932, 949 (Gonzalez) [gang expert
allowed to testify that his opinion “was not based on information from a single person but
on ‘corroborative information from other citizen informants, other evidence that we have
at hand, reports, people from the community’ ”]; People v. Hill (2011) 191 Cal.App.4th
1104, 1124 (Hill) [gang expert’s opinion may be based on “hearsay statements of gang
members”]; Valdez, supra, 58 Cal.App.4th at p. 507 [gang expert allowed to testify that
defendant was member of particular gang and his activities were undertaken on behalf of
the gang].) “A gang expert’s overall opinion is typically based on information drawn
from many sources and on years of experience, which in sum may be reliable. (People v.
Gardeley [(1996)] 14 Cal.4th [605], 620 [(Gardeley)].)” (Gonzalez, supra, 38 Cal.4th at
p. 949.) At no time did Officer Jackson testify that he based his opinions solely on the
information that defendant now challenges on appeal. “Challenging the reliability [of the
information is], and in fact [was] here, [a matter] for cross-examination.” (Valdez, supra,
58 Cal.App.4th at p. 507, fn. 11.)
       Defendant also contends Officer Jackson’s testimony was erroneously admitted
because (1) the hearsay was being elicited to prove the truth of the statements in the


14
   Evidence Code section 801 reads, in pertinent part: “If a witness is testifying as an
expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] . . .
[¶] [b]ased on matter (including his special knowledge, skill, experience, training, and
education) perceived by or personally known to the witness or made known to him at or
before the hearing, whether or not admissible, that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to which his testimony
relates, unless an expert is precluded by law from using such matter as a basis for his
opinion.” (Id., subd. (b).) “[N]o statute prohibits an expert from expressing an opinion
regarding whether a crime was gang related. Indeed, it is settled that an expert may
express such an opinion. To the extent the expert may not express an opinion regarding
the actual defendants, that is because the jury can determine what the defendants did as
well as an expert, not because of a prohibition against the expert opining on the entire
subject.” (Vang, supra, 52 Cal.4th at p. 1052.)


                                              29
police reports and the statements of rival gang members, rather than as the basis for the
officer’s opinions, and (2) the hearsay was testimonial in nature and therefore violated his
rights under the confrontation clause as enunciated in Crawford and its progeny.
However, defendant made no objections to Officer Jackson’s testimony on the specific
grounds he now asserts on appeal. Consequently, those arguments have been forfeited
for review since the trial court never had a chance to rule on the objections. (People v.
Lindberg (2008) 45 Cal.4th 1, 48.) “[W]e cannot hold the trial court abused its discretion
in rejecting [claims] that [were] never made.” (People v. Valdez (2004) 32 Cal.4th 73,
109 (Valdez).)
       Even if defendant’s claims were properly before us, we would conclude he has
failed to demonstrate that the admission of the challenged evidence constituted
prejudicial error. Defendant properly concedes Officer Jackson’s opinions were not
based solely on information he gleaned from police reports and investigative efforts
regarding gang members. We also see no merit to defendant’s contention that his
confrontation clause rights were violated by the admission of Officer Jackson’s testimony
regarding accusations by rival gang members that defendant was a member of Eddy
Rock. Officer Jackson’s expertise was acquired, in part, from hundreds of both
consensual and investigatory conversations with gang members. The conversations
concerned the lifestyles and attitudes of criminal street gang members and how gang
members committed crimes. Defendant points to no evidence demonstrating that the
rival gang members were “under arrest or that the circumstances surrounding the
conversation[s] were sufficiently formal that [their] statements were analogous to
testimony.” (Hill, supra, 191 Cal.App.4th at p. 1135.) “We have no basis for concluding
[Officer Jackson’s conversations] were part of a specific criminal investigation or that
any participant in these conversations had, as a primary purpose, ‘to establish or prove
some past fact for possible use in a criminal trial.’ ” (Id. at p. 1136.) Consequently, even
if the matter were before us, we would conclude that the record does not show that
Officer Jackson’s testimony as to what he was told by rival gang members was
testimonial hearsay admitted in violation of defendant’s confrontation clause rights.


                                            30
II.     Sufficiency of Evidence to Support Gang Enhancements
        Defendant challenges the sufficiency of the evidence to support the jury’s findings
that he violated section 186.22, subdivision (b), which creates a sentencing enhancement
for “a felony committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members.” (Ibid.) However, he “presents a selective view of the
evidence and disregards the reasonable inferences supporting the judgment. [¶] We are
not free to follow [defendant’s] carefully winnowed approach to the evidence. We must
review the entire record in the light most favorable to the judgment. Whether the
evidence is direct or circumstantial, our inquiry is to determine if any reasonable trier of
fact could have” made true findings as to the gang enhancements. (In re Nathaniel C.
(1991) 228 Cal.App.3d 990, 998-999.) “An appellate court’s belief that the
circumstantial evidence can reasonably be reconciled with innocence does not warrant
interference with the determination of the trier of fact. [Citation.] Under these rules, we
believe that the evidence is contrary to the view espoused by [defendant].” (Id. at p.
999.)
        Our Supreme Court has repeatedly and consistently held that the testimony of an
expert like Officer Jackson, standing alone, is sufficient evidence from which a jury can
reasonably find all elements necessary to support a true finding on a section 186.22,
subdivision (b) gang enhancement. (See, e.g., Vang, supra, 52 Cal.4th at p. 1049; People
v. Albillar (2010) 51 Cal.4th 47, 63; Hernandez, supra, 33 Cal.4th at pp. 1047-1048;
Gardeley, supra, 14 Cal.4th at p. 619.) Like the expert in Gardeley, Officer Jackson’s
testimony regarding the Eddy Rock criminal street gang and defendant’s participation in
the gang was based on his personal knowledge (including numerous contacts with gang
members, including executing a search warrant at defendant’s home, and discussions




                                             31
with rival gang members), as well as information he gleaned from police reports
regarding the criminal and other activities of defendant and other gang members.15
       Officer Jackson explained how the Eddy Rock gang acquired and lost members
over time, and defendant’s association with the gang. To the extent defendant asks us to
consider certain evidence from which different inferences could be drawn, we decline to
do so. We assume the jury disregarded those portions of the record and the inferences to
be drawn from the evidence relied on by defendant. (See People v. Davis (1957) 48
Cal.2d 241, 248 [“the jury might have accepted a portion of [the] testimony and
disbelieved the remainder”].) There is nothing in Officer Jackson’s testimony that would
negate, as a matter of law, the jury’s implicit determination that at the time of the April
2009 shooting, Eddy Rock was an ongoing criminal street gang and that defendant was a
participant or associate of the gang. “[W]e may not reverse the judgment simply because
the circumstances might also reasonably be reconciled with defendant’s alternate
theories.” (People v. Farnam (2002) 28 Cal.4th 107, 144.)
       Relying on People v. Killebrew (2002) 103 Cal.App.4th 644, 658, and In re
Frank S. (2006) 141 Cal.App.4th 1192, 1199, defendant also contends an expert may not
testify as to a defendant’s specific intent to promote, further, or assist in the criminal
conduct of gang members. However, we read those cases as “merely ‘prohibit[ing] an
expert from testifying to his or her opinion of the knowledge or intent of a defendant on
trial.’ ” (Gonzalez, supra, 38 Cal.4th at p. 946.) Here, Officer Jackson “did not render an
impermissible opinion as to defendant’s actual intent; rather [he] properly testified as to
defendant’s motivations for his actions.” (Ward, supra, 36 Cal.4th at p. 209; see

15
   To the extent defendant complains Officer Jackson was allowed to testify as to his
opinions without the use of hypotheticals, this contention was not raised in the trial court
and therefore it is not properly before us. (Valdez, supra, 32 Cal.4th at p. 109.) In any
event, we see no basis to reverse on this ground. (People v. Wilson (1944) 25 Cal.2d 341,
349 [“[t]here is no hard and fast rule that the expert cannot be asked a question that
coincides with the ultimate issue in the case”]; see also People v. Ward (2005) 36 Cal.4th
186, 209 (Ward) [court upheld prosecutor’s use of “fact-specific hypothetical questions to
elicit testimony from [these] experts that a gang member going into rival gang territory—
like defendant—would do so as a challenge and would protect himself with a weapon”].)


                                              32
Gardeley, supra, 14 Cal.4th at p. 619; Valdez, supra, 58 Cal.App.4th at p. 507.) Officer
Jackson explained why he believed defendant was an active participant in the Eddy Rock
gang, and how the act of attempting to murder someone in broad daylight could benefit
the gang. The prosecutor’s questions “were directed to helping the jury determine
whether [this defendant], not someone else, committed a crime for a gang purpose.
Disguising this fact would only have confused the jury.” (Vang, supra, 52 Cal.4th at
p. 1046.) The jury, as the trier of fact, was left to determine, if, based on the totality of the
evidence, defendant’s attempt to murder and assault the victim benefited the gang.
Officer Jackson’s “conclusion . . . did not bind the jury, nor would [his] testimony be
understood as essentially directing a verdict.” (Prince, supra, 40 Cal.4th at p. 1227.)16
III.   Sufficiency of Evidence Supporting the Substantive Offense of Active Gang
       Participation
       We agree with defendant that his conviction for the substantive offense of active
gang participation (count three) (§ 186.22, subd. (a))17 must be reversed on the grounds


16
     Defendant’s reliance on People v. Martinez (2004) 116 Cal.App.4th 753, 762
(Martinez) is misplaced. That case concerned a section 186.30 gang registration
requirement, which was imposed after the defendant had pleaded guilty to unlawful
sexual intercourse with a minor and auto burglary. (Martinez, supra, at p. 758.) The
Martinez court struck the gang registration requirement because there was no evidence
that the auto burglary was “gang-related” within the meaning of section 186.30.
(Martinez, supra, at pp. 762-763.) In so ruling, the court explained that because the
appeal followed “a plea, we of course do not have any expert testimony in the record that
explains the relationship of the crime to a criminal street gang.” (Id. at p. 762, fn. 8.) It
is in that context (the absence of any expert testimony) that the Martinez court found the
defendant’s record of prior offenses and past gang activities or personal affiliations was
insufficient to support imposing the requirement of gang registration. (Id. at p. 762.)
Here, however, we have gang expert testimony, coupled with defendant’s record of past
gang affiliations and activities, which supports the jury’s true findings on the gang
enhancements.
17
     Section 186.22, subdivision (a), reads, in pertinent part: “Any person who actively
participates in any criminal street gang with knowledge that its members engage in or
have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers,
or assists in any felonious criminal conduct by members of that gang, shall be punished
. . . .”


                                               33
of insufficient evidence. Since oral argument in this matter, a majority of our Supreme
Court has concluded that section 186.22, subdivision (a), is not violated when a gang
member commits a felony while acting alone. (People v. Rodriguez (2012) 55 Cal.4th
1125, 1128, 1132, 1134.) In this case the information alleged that defendant committed
the active gang participation offense on or about April 12, 2009, which was the same
time frame as the attempted murder and assault offenses against Greer. Additionally, the
evidence shows that the only felonious criminal conduct that occurred on or about April
12, 2009, was the attempted murder and assault offenses against Greer. Because
defendant acted alone in committing the attempted murder and assault, he did not also
violate section 186.22, subdivision (a). Consequently, we reverse the conviction for
active gang participation (count three), the true findings of the sentence enhancements
related to that count, and vacate the imposed sentences. The trial court will be directed to
dismiss count three and the sentence enhancements related to that count and amend its
sentence minute order and the abstract of judgment accordingly.18
IV.    Alleged Ineffective Assistance of Trial Counsel
       Defendant argues his trial counsel was ineffective based on various acts and
omissions, including counsel’s opening of the door to the admission of the victim’s
statement identifying defendant as the shooter, counsel’s failures to make certain
contemporaneous objections to the admission of evidence and the prosecutor’s closing
arguments, and to request certain limiting instructions. As we now discuss, we conclude
defendant has failed to meet his burden of demonstrating his trial counsel was
incompetent.
       In analyzing an alleged ineffective assistance of counsel claim, we “must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action ‘might be considered sound trial strategy.’ ”

18
   In light of our determination, we need not address defendant’s argument concerning
the omissions in the court’s instruction on the offense of active gang participation (count
three).


                                            34
(Strickland v. Washington (1984) 466 U.S. 668, 689; see Harrington v. Richter (2011)
562 U.S. ___, ___ [131 S.Ct. 770, 787 [defendant’s “burden is to show ‘that counsel
made errors so serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.’ ”].) We “ ‘will reverse on the ground of inadequate
counsel only if the record on appeal affirmatively discloses that counsel had no rational
tactical purpose for his act or omission.’ ” (People v. Cox (1991) 53 Cal.3d 618, 659
(Cox), disapproved on other grounds by Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
       Here, “[t]hrough a selective reading of the record with considerable hindsight,
defendant speculates a more favorable determination would have resulted from other
possible courses; yet he has failed to establish as a demonstrable reality any professional
lapse in the defense actually employed. ” (Cox, supra, 53 Cal.3d at p. 662.) “The
decisions which counsel must make in the courtroom will necessarily depend in part upon
what he then knows about the case, including what his own client has told him. There
may be considerations not shown by the record, which could never be communicated to
the reviewing court as a basis for its decision. Thus, [our] inability to understand why
counsel did as he did cannot be a basis for inferring that [counsel] was wrong.” (People
v. Garrison (1966) 246 Cal.App.2d 343, 350-351; see Taylor v. Illinois (1988) 484 U.S.
400, 417-418, fn. omitted [“[a]lthough there are basic rights that the attorney cannot
waive without the fully informed and publicly acknowledged consent of the client, the
lawyer has—and must have—full authority to manage the conduct of the trial”]; People
v. Riel (2000) 22 Cal.4th 1153, 1197 [“competent counsel may often choose to forego
even a valid objection”]; People v. Ervin (2000) 22 Cal.4th 48, 94 [“[w]e rarely second-
guess counsel’s cross-examination tactics, despite the elicitation of seemingly damaging
testimony”]; People v. Williams (1997) 16 Cal.4th 153, 217 [“[e]ven where defense
counsel may have ‘ “elicit[ed] evidence more damaging to [defendant] than the
prosecutor was able to accomplish on direct” ’ [citation], we have been ‘reluctant to
second-guess counsel’ [citation] where a tactical choice of questions led to the damaging
testimony”].) Defendant’s appellate contentions may be asserted, if at all, in a habeas



                                            35
corpus petition. (See In re Seaton (2004) 34 Cal.4th 193, 200; People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267.)
V.     Cumulative Effect of Purported Errors
       We reject any contention that reversal is required based on the cumulative effect
of the purported errors raised on appeal. “[A] series of trial errors, though independently
harmless, may in some circumstances rise by accretion to the level of reversible and
prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844-845.) This is not such a
case. The record demonstrates that any purported errors, considered individually or
collectively, were not so prejudicial as to deny defendant a fair trial or reliable verdicts.
VI.    Sentencing Issues
       A.     Determinate Sentence on Assault Conviction
       Defendant challenges the sentence imposed on his assault conviction, contending
that the court erred when it imposed sentence enhancements for firearm use (§ 12022.5,
subd. (a)), 19 great bodily injury (§ 12022.7, subd. (a)), 20 and commission of a felony for
the benefit of a gang (§ 186.22, subd. (b)(1)(C).)21 In addition to imposing a nine-year

19
   Section 12022.5, subdivision (a), reads, in pertinent part, that “any person who
personally uses a firearm in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment . . . for 3, 4, or 10 years,
unless use of a firearm is an element of that offense.”
20
   Section 12022.7, subdivision (a), reads: “Any person who personally inflicts great
bodily injury on any person other than an accomplice in the commission of a felony or
attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years.”
21
   Section 186.22, subdivision (b)(1), reads, in pertinent part: “[A]ny person who is
convicted of a felony committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony or attempted felony of which he
or she has been convicted, be punished as follows: [¶] . . .[¶] (C) If the felony is a
violent felony, as defined in subdivision (c) of section 667.5, the person shall be punished
by an additional term of 10 years.” (§ 186.22, subd. (b)(1)(C).) Section 667.5,
subdivision (c), enumerates the offenses that qualify as “violent” felonies, including
“[a]ny felony in which the defendant inflicts great bodily injury on any person other than
an accomplice which has been charged and proved as provided for in Section 12022.7,”

                                              36
term for the substantive assault offense, the court imposed a consecutive 10-year term for
the firearm-use enhancement, a consecutive 10-year term for the gang enhancement, and
imposed but stayed a three-year term for the great-bodily-injury enhancement, for a total
of 20 additional years. According to defendant, the court meant to impose only a total of
13 additional years for the enhancements because the court erred by (1) imposing two,
instead of one, 10-year terms for the firearm-use enhancement and the gang
enhancement, and (2) staying the imposed consecutive three-year term for the great-
bodily-injury enhancement. We conclude defendant’s contention is unavailing.
       In the case of two or more enhancements for either firearm use or infliction of
great bodily injury, subdivisions (f) and (g) of section 1170.122 “clearly bar imposing two
or more weapon enhancements for the same offense (subd. (f)) and two or more great-
bodily-injury enhancements for the same offense (subd. (g)).” (People v. Ahmed (2011)
53 Cal.4th 156, 165 (Ahmed).) Pertinent to our discussion, a trial court may not impose
both a firearm-use enhancement (§ 12022.5), and a gang enhancement predicated on a
section 12022.5 weapon enhancement (§ 186.22, subd. (b)(1)(C), see § 667.5, subd.
(c)(8)), because both enhancements qualify as weapon enhancements within the meaning


or “any felony in which the defendant uses a firearm which use has been charged and
proved as provided in . . . Section 12022.5.” (§ 667.5, subd. (c)(8).) Thus, in this case
the assault is deemed a “violent felony” within the meaning of section 667.5, subdivision
(c)(8), based on either the section 12022.5, subdivision (a), firearm-use enhancement or
the section 12202.7, subdivision (a), great-bodily-injury enhancement. (See § 667.5,
subd. (c)(8).)
22
   Section 1170.1, reads, in pertinent part: “(f) When two or more enhancements may be
imposed for being armed with or using a dangerous or deadly weapon or a firearm in the
commission of a single offense, only the greatest of those enhancements shall be imposed
for that offense. This subdivision shall not limit the imposition of any other
enhancements applicable to that offense, including an enhancement for the infliction of
great bodily injury. [¶] (g) When two or more enhancements may be imposed for the
infliction of great bodily injury on the same victim in the commission of a single offense,
only the greatest of those enhancements shall be imposed for that offense. This
subdivision shall not limit the imposition of any other enhancements applicable to that
offense, including an enhancement for being armed with or using a dangerous or deadly
weapon or a firearm.”


                                            37
of section 1170.1, subdivision (f). (See People v. Rodriguez (2009) 47 Cal.4th 501, 508-
509 (Rodriguez).) Similarly, a trial court may not impose both a great-bodily-injury
enhancement (§ 12022.7), and a gang enhancement predicated on a section 12022.7
great-bodily-injury enhancement (§ 186.22, subd. (b)(1)(C), see § 667.5, subd. (c)(8)),
because both enhancements qualify as great-bodily-injury enhancements within the
meaning of section 1170.1, subdivision (g). (See People v. Gonzalez (2009) 178
Cal.App.4th 1325, 1332 (Gonzalez) [citing to the dual weapon enhancement analysis in
Rodriguez, supra, at pp. 508-509, in addressing imposition of sentence on dual great-
bodily-injury enhancements].) However, a trial court can impose sentence on “both one
weapon enhancement and one great-bodily-injury enhancement for the same crime when
both apply.” (Ahmed, supra, at p. 165; see id. at p. 162 [court upheld applying one
firearm-use and one great-bodily-injury enhancement because “defendant both used a
firearm and inflicted great bodily injury when he shot his victim”].)
       In this case defendant was subject to two enhancements for firearm use: one
pursuant to section 12022.5, subdivision (a), and one pursuant to section 186.22,
subdivision (b)(1)(C), for which the court could only impose “the greatest of those
enhancements.” (§ 1170.1, subd. (f); see Rodriguez, supra, 47 Cal.4th at pp. 508-509.)
Defendant was also subject to two enhancements for the infliction of great bodily injury:
one pursuant to section 12022.7, subdivision (a), and one pursuant to section 186.22,
subdivision (b)(1)(C), for which the court could impose “only the greatest of those
enhancements.” (§ 1170.1, subd. (g); see Gonzalez, supra, 178 Cal.App.4th at p. 1332.)
By imposing a consecutive 10-year term on the section 12022.5, subdivision (a), firearm
use enhancement, the trial court did not impose a term for the second firearm-use
enhancement pursuant to section 186.22, subdivision (b)(1)(C), following the mandate of
section 1170.1, subdivision (f). 23 (Rodriguez, supra, 47 Cal.4th at pp. 508-509.)



23
  By choosing to impose a 10-year term on the section 12022.5, subdivision (a),
enhancement, the court did not actually impose the “greatest” of the firearm-use
enhancements. However, the court appropriately recognized that only one consecutive

                                            38
Instead, the trial court chose to impose a consecutive 10-year term on the gang
enhancement predicated on the section 12022.7 great-bodily-injury enhancement
(§ 186.22, subd. (b)(1)(C), which was “the greatest of [the great-bodily-injury]
enhancements (§ 1170.1, subd. (g),” and stayed the three-year term imposed on the
section 12022.7, subdivision (a), great-bodily-injury enhancement. Thus, the court’s
sentence complied with section 1170.1, subdivisions (f) and (g), which allows “ ‘a judge
to impose the greatest enhancement (that is charged and proven) for use of a weapon, as
well as the greatest enhancement (that is charged and proven) for infliction of [great
bodily injury].’ ” (Ahmed, supra, 53 Cal.4th at p. 168, quoting from the legislative
history materials filed with the 1997 amendment to § 1170.1, replacing former subd. (e)
with subds. (f) & (g).)24 Defendant makes no argument that assuming the trial court’s
sentencing choices were authorized, the imposed sentence on the assault conviction was
“irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing objections, and its discretionary
determination to impose a particular sentence will not be set aside on review.” (People v.
Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
       However, we agree with defendant that the trial court erred when at sentencing it
orally pronounced the aggregate term imposed on the assault conviction was 32 years.
The court actually imposed an aggregate term of 29 years. On remand the trial court
should amend its sentence minute order and the abstract of judgment to reflect that the
aggregate term imposed on the assault conviction (count two) is 29 years and that the
“total time excluding county jail term” reflected in paragraph 8 of the determinate
sentence abstract of judgment is 29 years.


10-year term could be imposed for the multiple firearm-use enhancements, and it
designated the specific enhancement on which it chose to impose sentence.
24
   “Because section 1170.1 provides the answer” to whether the trial court properly
imposed both the firearm-use enhancement and the gang enhancement in this case, “we
do not consider section 654.” (Ahmed, supra, 53 Cal.4th at p. 168.) Consequently, we
see no reason for supplemental briefing on the issue as suggested by defendant in his
reply brief.


                                             39
       B.     Defendant’s Financial Obligations
       Defendant also challenges the court’s imposition of restitution fines (§ 1202.4,
subd. (b)).25 In pertinent part, the court imposed restitution fines as follows: $10,000 on
count one and $6,400 on count two. The parties agree, and we concur, the court could
impose a restitution fine of no more than $10,000, regardless of the number of counts.
(People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534; see People v. Le (2006) 136
Cal.App.4th 925, 933-934 [in calculating amount of restitution fine under formula in
§ 1202.4, subd. (b)(2), trial court may not use a felony conviction for which the sentence
has been stayed pursuant to § 654].) Accordingly, on remand the trial court should
amend its sentence minute order and the abstracts of judgment to reflect that defendant’s
financial obligation is a restitution fine of $10,000, and a related parole revocation fine
(§ 1202.45) of $10,000, imposed on the attempted murder conviction (count one) and no
restitution or parole restitution fines are separately imposed on the assault conviction
(count two). The abstract of judgment of the determinate sentences on the assault
conviction (count two) indicates in paragraph 11 that “all matters” reflected in that
abstract are stayed pursuant to section 654. However, we agree with the parties that the
trial court should amend its sentence minute order and the abstracts of judgments as we
have directed to clarify defendant’s financial obligations. Additionally, the trial court’s
oral pronouncement of sentence and its sentence minute order correctly indicate there
was no stay of the imposed court security fees (§ 1465.8)26 and court facility funding
assessments (Gov. Code, § 70373, subd. (a))27 on the assault conviction (count two).
(People v. Woods (2010) 191 Cal.App.4th 269, 272 [court security fee and court facility

25
   Since defendant’s sentence the Legislature has twice amended section 1202.4.
(Stats. 2010, ch. 107, § 1; Stats. 2010, ch. 351, § 9.) These amendments are not pertinent
to this appeal.
26
   Since defendant’s sentence the Legislature has amended section 1465.8 redesignating
the court security fee as an “assessment” to “assist in funding court operations.”
(Stats. 2011, ch. 40, § 6.)
27
   In the trial court this assessment was referred to as an “immediate critical needs
assessment fee,” pursuant to Government Code section 70373, subdivision (a).


                                             40
funding assessment, both mandatory and applicable to each conviction, are not subject to
§ 654 stay].) Therefore, on remand the trial court should amend the abstract of judgment
of the determinate sentences to accurately reflect that defendant’s financial obligations
for the court security fees and court facility funding assessments imposed on the assault
conviction (count two) are not stayed. (People v. Mitchell (2001) 26 Cal.4th 181, 187
[Court of Appeal may direct correction of clerical error in abstract of judgment without
request of either party].)
                                     DISPOSITION
       The conviction for active gang participation (§ 186.22, subd. (a)) (count three) and
the true findings on the sentence enhancements related to that count are reversed, the
sentences imposed are vacated, and the trial court is directed to dismiss that count and the
sentence enhancements related to that count. In all other respects, the judgment is
affirmed. The matter is remanded to the trial court for the issuance of an amended
sentence minute order and amended abstracts of judgment consistent with this opinion.
The trial court shall transmit certified copies of the amended abstracts of judgment to the
Department of Corrections and Rehabilitation.

                                                 _________________________
                                                 McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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