Filed 12/1/15 P. v. Pena CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE

THE PEOPLE,

     Plaintiff and Respondent,                                      G049885

         v.                                                         (Super. Ct. No. 10NF0523)

JUAN ERIC PENA,                                                     ORDER MODIFYING OPINION
                                                                    AND DENYING PETITION FOR
     Defendant and Appellant.                                       REHEARING; NO CHANGE IN
                                                                    JUDGMENT


         It is ordered that the opinion filed on November 12, 2015, be modified in the
following particulars:
         On page 1, first paragraph, the second sentence is modified to read in full:
                   Affirmed in part, reversed in part, and remanded for resentencing.
         On page 17, first paragraph, the first sentence is modified to read in full:
                   We reverse Pena’s street terrorism conviction and the jury’s true finding on
                   the street terrorism enhancement and remand the matter for resentencing.
     This modification does not effect a change in judgment.
     The petition for rehearing is DENIED.




                                             O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




                                         2
Filed 11/12/15 P. v. Pena CA4/3 (unmodified version)




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049885

         v.                                                            (Super. Ct. No. 10NF0523)

JUAN ERIC PENA,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Reversed in part and affirmed in part.
                   Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and
Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
              Juan Eric Pena appeals from a judgment after a jury convicted him of
attempted murder and street terrorism and found true numerous enhancements, including
that he committed the attempted murder for the benefit of a criminal street gang. Pena
argues the following: (1) insufficient evidence supports his conviction for street
terrorism and the jury’s finding on the street terrorism enhancement; (2) the trial court
erred in admitting gang expert testimony in violation of his Sixth Amendment
confrontation rights; and (3) the court erred in sentencing him on the gang enhancement.
As we explain below, we agree with his first claim, disagree with his second claim, and
need not address his third claim. We reverse his street terrorism conviction and the jury’s
finding on the street terrorism enhancement. In all other respects, the judgment is
affirmed.
                                          FACTS
The Covered Wagon Motel
              On February 8, 2010, Thomas Coffman was staying the night at the
Covered Wagon Motel (the Motel) with his friend, Alexis Uribe, who was living there
with family. That night, Coffman and Uribe were riding their bikes when a man, later
identified as Pablo Hernandez (Pablo), approached them with a gun and asked if they
knew someone named “Smalls.” The two rode their bikes across the street to the Motel
and ran upstairs to Uribe’s room.
              Coffman and Uribe went downstairs and saw Pablo with another man who
wore a hat; both had guns. The man in the hat asked where they were from and if they
claimed any gang. Coffman and Uribe responded they were from nowhere and did not
claim anything. The two men said they were from Varrio Sureno Insane (VSI) and were
looking for “baby dicks,” a derogatory term for South Side Brown Demons (SSBD) gang
members. Pablo said they were looking for Smalls, a member of SSBD, and were
planning to “execute him.” At some point, Pablo realized that neither Coffman nor Uribe
were Smalls, so he and his companion ran to their car and drove off. There were six or

                                             2
seven people in the car and some of them flashed guns as they drove away. As the men
were leaving, Coffman turned and saw Smalls jumping over a wall next to the Motel.
Smalls was later identified to be Brian Camacho, a self-admitted and documented
member of SSBD.
The Lions Club
              Six days later, on February 14, 2010, Felipe Sanchez (Felipe) went to the
Lions Club (the Club) around 8:00 or 9:00 p.m. While he was outside, Pablo and his
sister, Irene Hernandez (Irene), approached him. Irene asked why he was looking at her
and if he wanted any trouble with her brother Pablo. Pablo threatened him and said he
was from an Anaheim gang. Pablo asked Felipe if he was from a gang, which Felipe
denied. Felipe told Pablo and Irene that he did not want any trouble. He spoke with
Pablo and Irene for about five or 10 minutes until they walked away. Pablo called Pena,
who arrived at the party and spoke with Pablo.
              Miguel Sanchez (Miguel) went to the Club with his sister and
brother-in-law. When they arrived, Miguel saw Felipe, who he knew from high school in
Mexico, outside arguing with someone he knew as Pablo and Pablo’s sister, but he could
not hear what was said. The argument lasted for about three to four minutes and ended
when Pablo and Irene walked away.
              After the argument ended, Miguel went to speak with Felipe. Felipe did
not feel safe outside the Club, so he and Miguel crossed the street to speak with other
friends about going somewhere else. Before they were able to reach their friends on the
other side of the street, someone shouted at them in English. Felipe looked back and saw
the man standing approximately six feet away. When Miguel turned around, the man had
a gun pointed at him and the man started shooting. The shooter fired about six shots and
fled.




                                             3
              Miguel had been shot once in the back and once in the side. Miguel’s
brother-in-law and sister took him to the hospital, and Miguel called 911.
              About 30 minutes later, Pablo and Irene left the scene and were picked up
by Pena. While in the car, Pena asked several times if he, Pena, had shot anybody. He
then sent Irene and his then girlfriend to check the scene, but the police closed the street.
Dale Street Apartments
              The next day, on February 15, 2010, around 9:30 p.m., Aaron Guardado
was inside a restaurant and saw Pena outside trying to lure him into the parking lot.
Guardado is a self-admitted and documented member of SSBD and goes by the gang
moniker “Creeper.” Pena flashed a handgun, and after Guardado refused to go outside,
he left. In the early morning hours of February 16, 2010, the Pena residence was shot at,
but no one was apprehended.
              Estela Hernandez (Estela), Guardado’s mother, lived at the Dale
Apartments in February 2010. She rented rooms in her apartment to make extra money.
In early February 2010, Pena contacted her about renting a room. About two and a half
weeks later on February 16, 2010, she saw Pena on the street and he asked if the room
was available. She took him to her apartment so she could give him her new phone
number. Her son was sleeping on the sofa in the living room at the time. Estela and Pena
went into the kitchen and Pena asked if the person sleeping on the couch was her son,
which she confirmed. Pena made a telephone call and spoke with someone in English,
and she could only understand him saying, “Yeah, I know this guy.” Pena told her that
he was leaving, walked into the living room, shot at the sofa that Guardado was sleeping
on and left the apartment. Guardado was not wounded; he pulled the bullet out of the
sofa and left. By the time the police arrived, her son was no longer at the apartment.
Trial Court Proceedings
              A second amended information charged Pena with the following:
conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1)), all further statutory

                                              4
references are to the Pen. Code, unless otherwise indicated) (count 1); assault with a
firearm against Coffman (§ 245, subd. (a)(2)) (count 2); assault with a firearm against
Uribe (§ 245, subd. (a)(2)) (count 3); attempted murder of Miguel (§§ 664, subd. (a), 187,
subd. (a)) (count 4); attempted murder of Felipe (§§ 664, subd. (a), 187, subd. (a))
(count 5); attempted murder of Guardado (§§ 664, subd. (a), 187, subd. (a)) (count 6);
and street terrorism (§ 186.22, subd. (a)(1)) (count 7). The information alleged the
following enhancements: street terrorism (§ 186.22, subd. (b)(1)), as to counts 1 through
6; personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)), as
to count 4; personal discharge of a firearm (§ 12022.53, subd. (c)), as to counts 5 and 6;
personal use of a firearm (§ 12022.5, subd. (a)), as to counts 1 through 6; and vicarious
use of a firearm by a gang member (§ 12022.53, subds. (b), (e)(1)), as to counts 1, 2, and
3. On the prosecutor’s motion, the court dismissed count 1.
              At trial, the prosecutor offered the testimony of lead investigator and gang
expert Detective Mike Brown. After detailing his background, training, and experience,
Brown testified concerning the culture and habits of traditional turf oriented Hispanic
street gangs. Brown explained how gang members commit violent acts to earn respect
and listed the violent crimes gang members do to earn respect. He also explained how
gang members “hit up” people to learn if the person is a gang member. He discussed
how gang members must back up other gang members to maintain respect in the gang.
Brown testified he first learned of VSI when he began “investigating a rash of crimes” in
February 2010.
              Over defense counsel’s objection on Sixth Amendment grounds, Brown
testified about VSI based on statements made by Pena’s brother, Gilberto Pena
(Gilberto), and Pablo. During one contact, Gilberto was heard yelling, “Fuck BD [Brown
Demons], VSI for life.” During a February 20, 2010, interview, Gilberto admitted to
Brown that he was a member of VSI and went by the moniker “Payaso.” Gilberto
admitted he was shot in the head in 2009 by someone he believed to be a SSBD gang

                                             5
member. Gilberto also provided Brown with a history of the gang, information on their
rivals, and membership. Additionally, during an interview with Pablo, Pablo admitted to
Brown that he was a member of VSI. Pablo provided Brown with a history of VSI, his
gang moniker “Troubles,” details on membership, and information about gang indicia
officers found when they searched his house. Pablo admitted to committing crimes on
behalf of VSI because they were disrespected by SSBD, but Brown did not specify what
those crimes were. During Brown’s investigation of VSI, he did not come across any
STEP notices or field information cards for Pena, Gilberto, or Pablo.
              Brown was present at the Pena residence when officers executed a search
warrant after the offenses. In the residence, Brown found a sheet of paper with VSI
graffiti as well as a sheet with a roster that listed eight gang member’s monikers, which
included the monikers of Gilberto and Pablo.
              Brown testified concerning VSI as follows: VSI formed in 2006; in 2009
and 2010, VSI claimed the area of Ball and Euclid in Anaheim, which was also claimed
by rival gang SSBD; VSI would identify itself by writing “VXI,” “VSI,” or “XXI”; in
2009, there was VSI graffiti found in the area of Ball and Euclid and some of the VSI
graffiti was crossed out with SSBD graffiti, which is a sign of disrespect to VSI. Brown
opined that in February 2010, VSI was an ongoing, organized criminal street gang with
between five and 12 members. During the prosecutor’s attempt to establish VSI was a
criminal street gang, the following colloquy occurred:
              “[Prosecutor]: And as of February of 2010, specifically February 8 through
February 16, what were the primary activities of VSI?
              “[Brown]: I would say aggravated assault, attempted murder, and felony
weapon possession.
              “[Prosecutor]: And when you say aggravated assault, you mean under . . .
section 245 felony?
              “[Brown]: That’s correct.

                                             6
              “[Prosecutor]: And would that also include assaults with firearms?
              “[Brown]: Yes, ma’am.
              “[Prosecutor]: And the last thing you talked about was a pattern of criminal
gang activity. Are you relying on the three instances here as your pattern of criminal
activity?
              “[Brown]: That’s correct.”
              Later, on cross-examination, Brown stated his opinion for VSI’s primary
activities was based in part on his training and experience in regards to the “general
rubrics and paradigms of traditional territorial Hispanic street gangs.”
              Based on his investigation, Brown opined Pena was a member of VSI and
was an active participant of VSI at the time of the offenses here. Pena committed crimes
with Pablo and Gilberto, documented and self-admitted members of VSI. In Brown’s
training and experience, gang members usually do not commit crimes with non-gang
members. The prosecution did not ask Brown any hypothetical questions.
              An Orange County Crime Lab forensic scientist testified a bullet was
recovered from a truck parked at the Club. Sergeant Christopher Masilon testified
Guardado gave him a cup wrapped in tissue containing a fired bullet and told him it was
the bullet he had taken from the sofa. Shortly after the apartment shooting, Detective
Kelly Phillips stopped a Dodge Durango driven by Gilberto and Pablo. After searching
the vehicle, Phillips found a fully loaded .38 caliber revolver hidden in the dashboard.
              An Orange County Crime Lab forensic scientist analyzed the .38 caliber
revolver and determined it was functioning properly. A comparison was done between
the test bullets that were fired from this gun at the crime lab and the bullet that was
removed from the truck at the Club and, while there were similarities, the results were
inconclusive. A second comparison was done between the test bullet and the bullet that
was recovered from the sofa, which showed the bullets were fired from the same gun.



                                              7
              Pena testified VSI is not a gang. His motivations for his actions in
February 2010 were not gang related. Before he and his wife met, four men raped her.
He learned Camacho and Guardado were two of the four men.
              On February 8, 2010, Pena left his house with Gilberto, Pablo, and two of
his brother’s friends. They went to a restaurant, where they saw Camacho riding his bike.
He wanted to confront Camacho and talk with him about raping his wife, not to kill him
or hurt him. Later, while they were driving around, Pablo got out of the car because they
saw people on bikes, one of whom he thought was Camacho. They parked at the Motel,
and he got out of the car. He and Pablo confronted two men on bikes and asked if they
were Camacho, which they denied. At some point, he heard Pablo claim to be a member
of VSI and ask the two men if they were from a gang. Once he realized that neither of
the men were Camacho, he apologized and got back into the car and they drove away, but
he was so upset about Pablo claiming VSI, he got out of the car. While he was walking,
he saw police officers and jumped over a fence to get away because he was on parole.
Neither he nor anyone he was with had a gun that night.
              Pena testified that on February 14, 2010, he got a telephone call from Pablo
asking him to come to the Club because someone had sexually assaulted Irene. Before
leaving, he grabbed a gun from the house and took it with him for protection. When he
got to the Club, Irene pointed out Miguel as the man that was bothering her. After
watching Miguel for a while, he saw Miguel had a gun in his waistband. Before Miguel
had a chance to reach for the gun, Pena fired his gun. He fired three shots to warn
Miguel, but was never trying to kill him; he was trying to protect Pablo from being hurt
by Miguel. He shot Miguel out of fear for Pablo, not to further or assist any gang. After
the shooting, he gave the gun to Pablo and told his wife and Irene to go back to the scene
to check for video surveillance.




                                             8
              The following night, Pena saw Guardado at a restaurant and confronted him
about raping Pena’s wife. Guardado denied having anything to do with the rape so Pena
left. At around 2:00 the next morning, his house was shot at.
              Pena testified that on February 16, 2010, he realized it must have been
Guardado that shot at his house. He picked up his gun from Pablo and went back to the
restaurant to look for Guardado. While walking down the street, he saw a woman that he
was trying to rent a room from, but did not know she was Guardado’s mother. He would
frequently rent rooms after he spent time in drug court to get away from his house. When
he got to the woman’s apartment, he saw Guardado, confronted him about shooting the
house, and fired his gun accidentally.
              The jury convicted Pena of counts 4 and 7, but acquitted him of counts 2, 3,
and 6. The jury found true all the enhancements. The jury was unable to reach a verdict
on count 5.
              The trial court sentenced Pena to 40 years to life in prison: 15 years to life
for count 4 because of the gang enhancement; and 25 years for the personal discharge of
a firearm causing great bodily injury enhancement. The court stayed sentencing on count
7 pursuant to section 654 and struck the sentencing for the gang enhancement.
                                         DISCUSSION
I. Sufficiency of the Evidence
              Pena argues insufficient evidence supports his conviction for street
terrorism and the jury’s finding on the street terrorism enhancement. He contends there
was no evidence of the following: (1) VSI was a criminal street gang; (2) he knew VSI
gang members engaged in a pattern of criminal gang activity or that he willfully
promoted, furthered, or assisted felonious criminal conduct by VSI gang members; and
(3) he committed a felony for the benefit of and with the specific intent to promote VSI.
Because we conclude insufficient evidence supports the finding VSI was a criminal street
gang, we need not address Pena’s other contentions.

                                             9
              The street terrorism substantive offense, section 186.22, subdivision (a),
states: “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 . . . in the state prison for 16 months,
or two or three years.” (Italics added.) The street terrorism enhancement, section 186.22,
subdivision (b)(1), provides: “[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 . . .” by an additional term. (Italics added.) Thus, both subdivisions (a) and (b)
of section 186.22 require the existence of a criminal street gang.
              Section 186.22, subdivision (f), defines a “‘criminal street gang’” as “any
ongoing organization, association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of one or more of the
criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
subdivision (e), having a common name or common identifying sign or symbol, and
whose members individually or collectively engage in or have engaged in a pattern of
criminal gang activity.” (Italics added.)
              “‘Therefore, the “criminal street gang” component of a gang enhancement
requires proof of three essential elements: (1) that there be an “ongoing” association
involving three or more participants, having a “common name or common identifying
sign or symbol”; (2) that the group has as one of its “primary activities” the commission
of one or more specified crimes; and (3) the group’s members either separately or as a
group “have engaged in a pattern of criminal gang activity.” [Citation.]’ (People v. Vy



                                             10
(2004) 122 Cal.App.4th 1209, 1222 . . . . [(Vy)])” (In re Alexander L. (2007)
149 Cal.App.4th 605, 610-611 (Alexander).)
              In People v. Sengpadychith (2001) 26 Cal.4th 316, 323, the California
Supreme Court held “primary activities” includes acts committed at the time of the
charged offenses as well as prior conduct. The court explained the following: “The
phrase ‘primary activities,’ as used in the gang statute, implies that the commission of
one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or
‘principal’ occupations. [Citation.] That definition would necessarily exclude the
occasional commission of those crimes by the group’s members.” (Ibid.) The court
stated, “Sufficient proof of the gang’s primary activities might consist of evidence that
the group’s members consistently and repeatedly have committed criminal activity listed
in the gang statute.” (Id. at p. 324.) The court also stated expert testimony may establish
the primary activities. (Ibid.) On this latter point, the Sengpadychith court relied on
People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), in which the gang expert testified
as to the gang’s primary activities and explained he based his opinion on conversations he
had with defendant, who had been in the gang for nine years, and other gang members,
hundreds of personal gang investigations, and information from his own police
department and other law enforcement agencies. (Sengpadychith, supra, 26 Cal.4th at
p. 324.) A few cases illustrate what has been, and has not been, held to establish a gang’s
primary activities after Sengpadychith.
              In People v. Duran (2002) 97 Cal.App.4th 1448, 1465 (Duran), the gang
expert testified, “based in part upon his personal experience in the field gathering gang
intelligence, contacting gang members, and investigating gang-related crimes.” The
expert testified as to the gang’s primary activities, as follows: “‘The main one is putting
fear into the community. [¶] Now, when I say that, what I mean is often these gang
members are committing robberies, assault with deadly weapons, narcotics sales, and
they’re doing it as a group. [¶] And in doing so, they start claiming certain territories

                                             11
within the city . . . . [¶] And they’re controlling either the narcotics sales in that area,
they’re committing the robberies in this area, all for the purpose of fear and intimidation
of the community.’” (Ibid, italics omitted.) Citing to Sengpadychith, the court concluded
the expert’s testimony was sufficient, noting the expert opined the gang committed the
specified crimes often and not occassionally, and evidence of gang members’
commission of robbery and narcotics offenses corroborated the expert’s testimony.
(Ibid.)
               In People v. Perez (2004) 118 Cal.App.4th 151, 160 (Perez), the gang
expert attempted to establish the shooting of an Asian teenager was done in retaliation for
conduct by other Asian gang members, and therefore was committed for the benefit of
defendant’s Hispanic gang. The expert testified the Hispanic gang had a long-standing
rivalry with Asians and African-Americans, and six years earlier he had investigated the
attempted murder of an Asian boy by that gang. (Id. at p. 157.) The expert also noted
there had been shootings of Asian gang members and an Asian teenager a few days
before the present crime, which were possibly committed by defendant’s gang. (Id. at
pp. 156-158.) Citing to Sengpadychith, the Perez court held that even if defendant’s gang
“was responsible for the shootings of Asians on February 16 and 18, as well as the
shooting of [the attempted murder victim], such evidence of the retaliatory shootings of a
few individuals over a period of less than a week, together with a beating six years
earlier, was insufficient to establish that ‘the group’s members consistently and
repeatedly have committed criminal activity listed in the gang statute.’ [Citation.]”
(Perez, supra, 118 Cal.App.4th at p. 160.)
               In Vy, supra, 122 Cal.App.4th at page 1219, the gang expert testified that
assaults, assaults with weapons, and attempted murders were among the primary
activities of the gang, which had only six members. The expert relied on three offenses
that occurred within three months of each other: a stabbing by a gang member, another
stabbing that resulted in a conviction of assault with a deadly weapon, and the instant

                                               12
stabbing. (Id. at p. 1223.) After discussing Sengpadychith, and distinguishing Perez, the
Vy court concluded, “[W]e find the existence of three violent felonies by a gang as small
as [this one] over less than three months to be sufficient . . . .” (Vy, supra,
122 Cal.App.4th at pp. 1225-1226 & fn. 12.)
              In Alexander, supra, 149 Cal.App.4th at pages 611-612, another panel of
this court addressed the same issue. The gang expert testified he knew of past crimes
committed by members of the gang, but he did not provide any further information as to
the specifics of the crimes and did not explain where, when, or how he learned of the
information concerning these crimes. On cross-examination, he admitted the majority of
cases connected with the gang-involved graffiti, which is not one of the enumerated
crimes in section 186.22, subdivision (e). (Alexander, supra, 149 Cal.App.4th at p. 612
& fn. 2.) This court found the gang expert’s testimony lacked foundation and was
conclusory, and could not be considered substantial evidence of the gang’s primary
activities because it was not “‘reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (Id.
at p. 614.) The prosecution also offered evidence regarding two past criminal convictions
of gang members from two years earlier. (Id. at pp. 612-613.) This court concluded
evidence was insufficient to establish the primary activities, stating, “[w]ithout more,
these two convictions do not provide substantial evidence that gang members had
‘consistently and repeatedly . . . committed criminal activity listed in the gang statute.’
[Citation.]” (Id. at p. 614.)
              As to his contention VSI was not a criminal street gang, Pena argues there
was insufficient evidence VSI’s “primary activities” established a “pattern of criminal
gang activity” because the February 2010 crimes were merely occasional offenses and
Brown’s testimony was without the required foundational support and was conclusory.
Relying on Brown’s expert testimony and Pablo’s statements concerning committing
crimes on VSI’s behalf, the Attorney General asserts there was sufficient evidence of

                                              13
VSI’s primary activities. We agree with Pena as we conclude the facts here are more
similar to Perez and Alexander than they are to Duran and Vy.
              As we explain above, the term “primary activities” implies the members of
the alleged gang “consistently and repeatedly” committed the criminal activity. The
criminal activity must be the gang’s chief occupation, which necessarily excludes the
occasional commission of the criminal activity. Brown testified VSI formed in 2006 and
he first learned of VSI in February 2010, when he began investigating the crimes at issue
here. Evidence VSI gang members committed two assaults with a deadly weapon and
three attempted murders on three occasions over the course of nine days in February 2010
cannot reasonably support the conclusion they were VSI’s primary activities. (In re I.M.
(2005) 125 Cal.App.4th 1195, 1207 [§ 186.22 does not require proof of convictions]; see
§ 186.22, subd. (e).) Like in Perez—where a gang committed several shootings within a
period of less than a week and a beating six years earlier—and Alexander—where there
were two convictions two years earlier—here there were five felonies on three occasions
over the course of nine days. These facts are unlike Duran where the gang engaged in
narcotics sales and committed robberies often enough to gain control of an area. We
recognize that in Vy the court found sufficient evidence of primary activities where the
gang committed three violent felonies, fewer than were committed here. But that was
over the course of three months. Here, the five crimes occurred on three occasions in a
little more than a week. We conclude this is more akin to “occasional” criminal activity
than it is to “consistent and repeated” criminal activity.
              Relying on Sengpadychith and Gardeley, the Attorney General asserts
Brown’s testimony, which was based in part on his conversations with Pablo, provided
sufficient evidence of VSI’s primary activities. We have discussed both cases above, but
a more detailed discussion of Gardeley is required.




                                              14
              In Gardeley, a police gang expert testified defendant had been a gang
member for nine years, and the gang was primarily engaged in narcotics sales and
witness intimidation, both statutorily enumerated felonies. (§ 186.22, subds. (e)(4) &
(8).) The gang expert based his opinion on conversations he had with defendant and
fellow gang members, and on “his personal investigations of hundreds of crimes
committed by gang members,” together with information from colleagues and other law
enforcement agencies. (Gardeley, supra, 14 Cal.4th at p. 620.) The court noted the
expert’s testimony was admissible because it satisfied the “threshold requirement of
reliability” and “provided much of the evidence necessary to establish that the . . . gang
met . . . [the] definition [of] ‘criminal street gang.’” (Id. at pp. 618-621.)
              In Gardeley, there was ample documentary evidence of crimes committed
by members of the gang in addition to the expert’s testimony. The evidence included
official court records showing defendant was convicted for being an accessory to a felony
and possessing cocaine. Two police officers observed defendant and others flagging
down cars in a manner associated with the sale of narcotics. Another gang member was
convicted for shooting at an inhabited dwelling and making threats against a drug dealer.
(Gardeley, supra, 14 Cal.4th at p. 613.) This evidence, in addition to the expert’s
testimony, reasonably supported the jury’s finding there was a “criminal street gang” as
defined in the statutory scheme.
              Here, Brown’s expert testimony was not sufficient to establish VSI’s
primary activities. Although Brown provided comprehensive testimony about his
background, training, and experience concerning Hispanic criminal street gangs, like in
Alexander, his testimony concerning VSI was without sufficient foundational support and
was conclusory. Brown testified he first learned of VSI in February 2010 when he began
investigating the crimes alleged here. When the prosecutor asked Brown, “And as of
February of 2010, specifically February 8 through February 16, what were the primary
activities of VSI? Brown answered, “I would say aggravated assault, attempted murder,

                                              15
and felony weapon possession.” The only other time Brown discussed primary activities
was on cross-examination when he stated his opinions concerning VSI’s primary
activities was based on his training and experience in regards to the “general rubrics and
paradigms of traditional territorial Hispanic street gangs.” As we explain above, five
offenses on three occasions over the course of nine days does not establish a gang’s
primary activities, and Brown’s unsupported and conclusory opinion to that effect also is
inadequate. Additionally, Pablo’s statements to Brown do not provide the missing
foundational support. Brown testified Pablo told him that he committed crimes on behalf
of VSI because SSBD disrespected VSI. However, Brown did not testify as to what
Pablo said those crimes were. Based on the record before us, we presume Pablo was
referring to the offenses alleged here. But as we explain above, the five crimes here do
not constitute consistent and repeated criminal activity.
              Therefore, there was insufficient evidence establishing VSI’s primary
activities and thus that VSI was a criminal street gang. We reverse Pena’s conviction for
street terrorism and the true finding on the gang enhancement. Finally, our conclusion
renders moot Pena’s sentencing claim.
II. Sixth Amendment
              Pena contends Brown improperly testified regarding his conversations with
Pablo and Gilberto in violation of his Sixth Amendment right to confrontation pursuant to
Crawford v. Washington (2004) 541 U.S. 36. Pena acknowledges Gardeley, supra,
14 Cal.4th at page 619, held the basis for an expert’s opinion is not subject to the hearsay
rule because it is not admitted for the truth of any assertions, and that we are obligated to
follow Gardeley pursuant to Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455. We note this issue is pending before the California Supreme Court (People v.
Sanchez (2014) 223 Cal.App.4th 1, review granted May 14, 2014, S216681 and People v.
Archuleta (Apr. 11, 2014, E049095), review granted June 11, 2014, S218640).



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                                     DISPOSITION
              We reverse Pena’s street terrorism conviction and the jury’s finding on the
street terrorism enhancement. In all other respects, the judgment is affirmed.




                                                 O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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