Filed 6/9/15 P. v. Zarate CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039134
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. Nos. F22024, F23092)

         v.

MARINO ZARATE,

         Defendant and Appellant.



         A jury convicted defendant Marino Zarate of active participation in a criminal
street gang (Pen. Code, § 186.22, subd. (a)),1 reckless evading (Veh. Code, § 2800.2,
subd. (a)), misdemeanor hit and run causing property damage (Veh. Code, § 20002),
misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)),
misdemeanor driving with a .08 percent or higher blood alcohol level (Veh. Code,
§ 23152, subd. (b)), and misdemeanor resisting, delaying, or obstructing an officer
(§ 148, subd. (a)). Defendant was on felony probation at the time of his conviction in
case No. F23092, having pleaded guilty eight months earlier in case No. F22024 to
reckless evading, misdemeanor participation in a criminal street gang, and misdemeanor


1
      Subsequent statutory references are to the Penal Code unless otherwise noted.
References to section 186.22 are to the version of the statute in effect when defendant
committed his crimes.
carrying a loaded firearm in a vehicle. The trial court found defendant in violation of his
probation in case No. F22024. He was sentenced to a total term of three years and eight
months in prison.
       On appeal, defendant challenges his conviction for active participation in a
criminal street gang. He contends that (1) insufficient evidence supported the gang crime
conviction; (2) the prosecution committed Brady2 error; (3) evidence introduced through
the prosecution’s gang expert violated his Sixth Amendment right to confrontation; (4)
the trial court prejudicially misinstructed the jury; (5) the trial court improperly admitted
evidence that should have been excluded under Evidence Code section 352; and (6) these
errors were cumulatively prejudicial. We conclude that there was insufficient evidence to
support the gang crime conviction. We reverse the judgment.


                                       I. Background
       Watsonville Police Officer Bradley Chagnon was on duty in a marked patrol car
on July 16, 2012. He was en route to Watsonville Community Hospital at around
4:20 p.m. when he heard a be-on-the-lookout dispatch about a possible shooting from a
vehicle in the area of Clifford Avenue and Pennsylvania Drive. The suspect vehicle was
described as a red Honda. Chagnon continued driving and a few minutes later, a maroon
Mitsubishi “came off of Nielson and pulled in front of me and was heading in my same
direction.” The Mitsubishi made a right turn toward the hospital and Chagnon followed
it. At the next stop sign, the car accelerated and “just sped through . . . .” Chagnon
activated his lights and the Mitsubishi turned into the hospital parking lot and pulled
over. “[A] male . . . about 15 years old, just bolts out of the right front . . . passenger
door, and takes off running . . . .” Chagnon saw nothing in the juvenile’s hands.



2
       Brady v. Maryland (1963) 373 U.S. 83 (Brady).

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       Chagnon got out of his patrol car and approached the Mitsubishi, but it sped away.
He pursued it. As both cars looped around, they caught up to the juvenile who had bolted
from the car. Chagnon saw him run across the roadway into some heavy brush and trees
that separate the hospital parking lot from Airport Boulevard. The juvenile had both
hands “underneath his shirt, in his front stomach area,” which caused Chagnon to believe
that he was hiding the gun “from the call that we had earlier, underneath that shirt.”
Chagnon did not see a gun. Nor did he see the silhouette of a gun or the shape of a gun
through the juvenile’s shirt.
       Chagnon estimated that the Mitsubishi was going “at least 80” on Airport
Boulevard. He chased it onto Highway 1 but lost sight of it when it exited at Main Street
in Watsonville.
       Watsonville Police Corporal Brian Fulgoni was on Main Street when he heard the
shots-fired dispatch and Chagnon’s radio transmissions. “Seconds later,” Fulgoni saw a
maroon Mitsubishi traveling in his direction at an extremely high rate of speed, “just
weaving in and out of traffic and forcing . . . vehicles off the road.” The Mitsubishi
suddenly turned into the Crossroads Shopping Center. As Fulgoni entered the parking
lot, he saw “a raised sidewalk” with skid marks leading into some shrubbery that was
“destroyed, with tire tracks . . . visible on the lawn.” He noticed the Mitsubishi ahead of
him and saw a male whom he later identified as defendant run from the driver’s side of
the car. A second male wearing bright red shorts jumped out of the passenger side of the
car and ran in a different direction. Fulgoni “immediately” recognized the second man as
Ernesto Murillo. Fulgoni chased and caught him. Other officers apprehended defendant,
who exhibited symptoms of alcohol intoxication.
       Isaac Bohigian was at the shopping center that afternoon at a jiu jitsu studio where
his son was taking a class. He heard tires screeching and turned around to see a car
“pole-vault across the . . . sidewalk into the parking lot.” He ran outside and approached
the car to say, “Hey, slow down” when “both car doors opened up” and two men got out
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of the car and started running. The Mitsubishi was still moving. Bohigian jumped into
the driver’s seat and stomped on the brake but was unable to stop the car before it hit a
parked Mercedes. Bohigian identified defendant of the as the driver of the Mitsubishi
and Murillo as the passenger at an in-field showup that afternoon. No weapons were
found in the Mitsubishi.
       Chagnon participated in a search of the wooded area near the hospital. The
juvenile who ran from the Mitsubishi was located and taken into custody. The search did
not uncover a firearm. Fulgoni and 10 cadets did a second search for a firearm that
evening but found nothing. Officers conducted a third search the next day and found a
firearm. Police were unable to link the Mitsubishi to any shooting. None of the three
individuals in the Mitsubishi was booked in connection with a shooting from the car.
       Chagnon and Fulgoni testified for the prosecution at trial. The jury viewed videos
of the chase that the officers’ dashboard-mounted cameras recorded. Bohigian described
what he saw and identified defendant as the driver of the Mitsubishi.
       Criminalist Scot Armstrong testified as an expert in the field of forensic alcohol
analysis. He reported that defendant’s breath test results were .08 at 6:24 p.m. and .08 at
6:28 p.m. on July 16, 2009. Armstrong opined that the results would have been “about
.04 higher at the time of driving” or potentially .12 when defendant committed the
offenses.
       Watsonville Police Detective Edmundo Rodriguez testified as the prosecution’s
gang expert. He described the history, culture, and activities of the Norteño street gang
and its Watsonville subsets. Rodriguez testified that the primary activities of the Norteño
gang included the crimes listed in section 186.22, subdivision (e). He identified two
predicate offenses by Norteño gang members. In one, a Norteño assaulted Sureños with a
metal bar or a baseball bat during a gang fight between Norteños and Sureños. In the
other, a Norteño felon was found in possession of firearms, one of which was stolen.
Rodriguez opined that the Norteño gang was a criminal street gang and that defendant
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was an active member of the gang. He relied on defendant’s tattoos, his prior contacts
with law enforcement, his admission to the jail booking officer that he was a northern
gang member from Watsonville, and gang items found during probation searches of his
residence and his car. Rodriguez testified that Murillo was a well-documented Norteño
gang member and that the juvenile who ran from the car was also a Norteño gang
member.
       The defense rested without presenting any evidence.
       The jury found defendant guilty on all counts. The trial court imposed a three-
year prison term for the reckless evasion count. It imposed concurrent terms for the other
counts and stayed the terms on the gang crime and DUI counts. The court found
defendant in violation of his probation in case No. F22024. It imposed a consecutive
eight-month term on the evasion count in that case and concurrent terms on the other two
counts. Defendant filed a timely notice of appeal.


                                      II. Discussion
                        A. Substantive Gang Crime Conviction
       Relying on People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez) defendant
contends that there was insufficient evidence to support his gang crime conviction.
Specifically, he argues that no substantial evidence supported the third element of the
section 186.22, subdivision (a) offense. We agree.
       Our standard of review is well established. “ ‘[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”
(People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443
U.S. 307, 318-319.) “[The] appellate court must view the evidence in the light most
favorable to respondent and presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3
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Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) “A
reasonable inference, however, ‘may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact
must be an inference drawn from evidence rather than . . . a mere speculation as to
probabilities without evidence.’ ” (People v. Morris (1988) 46 Cal.3d 1, 21 (Morris),
disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.) A
trier of fact may rely on inferences to support a conviction only if those inferences are “of
such substantiality that a reasonable trier of fact could determine beyond a reasonable
doubt” that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 890-891.)
“Evidence is sufficient to support a conviction only if it is substantial, that is, if it
‘ “reasonably inspires confidence” ’ [citation], and is ‘credible and of solid value.’
[Citations.]” (Id. at p. 891.)
       In enacting section 186.22, subdivision (a), “the Legislature sought to punish gang
members who acted in concert with other gang members in committing a felony . . . .”
(Rodriguez, supra, 55 Cal.4th at p. 1138.) The gang participation statute “reflects the
Legislature’s carefully structured endeavor to punish active participants for commission
of criminal acts done collectively with gang members.” (Id. at p. 1139.) The statute
“requires that felonious criminal conduct be committed by at least two gang members,
one of whom can include the defendant if he is a gang member. [Citation.].” (Id. at
p.1132.) A gang member who acts alone in committing a felony does not violate section
186.22, subdivision (a). (Rodriguez, at p. 1139.)
       “The elements of the gang participation offense . . . are: First, active participation
in a criminal street gang, in the sense of participation that is more than nominal or
passive; second, knowledge that the gang’s members engage in or have engaged in a
pattern of criminal gang activity; and third, the willful promotion, furtherance, or
assistance in any felonious criminal conduct by members of that gang. [Citation.]”
(Rodriguez, supra, 55 Cal.4th at p. 1130.) “[T]o satisfy the third element, a defendant
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must willfully advance, encourage, contribute to, or help members of his gang commit
felonious criminal conduct.” (Id. at p. 1132.) He does so either “by . . . aiding and
abetting other gang members in committing a felony or by directly committing a felony
with other gang members.” (Id. at p. 1136.)
       “ ‘To be an abettor the accused must have instigated or advised the commission of
the crime or been present for the purpose of assisting in its commission. He must share
the criminal intent with which the crime was committed. The mere presence of the
accused at the scene of the crime does not alone establish that the accused was an
abettor. . . . In order to hold the accused as an aider and abettor the test is whether the
accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged
him by words or gestures.’ ” (People v. Francis (1969) 71 Cal.2d 66, 72 (Francis).)
       Murillo did not directly commit the evasion offense here. He was not driving.
The Attorney General blurs this distinction when she argues that “[a]t the beginning of
the vehicle pursuit, [defendant] and Mr. Murillo stopped the car to permit an apparently
armed fellow gang member to flee.” The evidence established that it was defendant
alone, not defendant and Murillo, who stopped the car in the hospital’s parking lot. Thus,
to satisfy the third element, the prosecution had to show that Murillo aided and abetted
defendant’s commission of the evasion crime.
       A reasonable inference from the evidence is that defendant pulled over in the
hospital parking lot in response to Chagnon’s flashing lights. The Attorney General
asserts that defendant stopped to permit the juvenile to flee. Even if defendant pulled
over to permit the juvenile to flee, it does not follow that defendant had already decided
to speed away from the traffic stop or that his decision to do so was aided and abetted by
Murillo. There was no direct evidence that defendant and Murillo were talking in the car
before defendant sped away or during the chase. Chagnon testified that when the
Mitsubishi first turned in front of him, he could not tell how many occupants it had. He
could not see into the car then or later during the chase.
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       Even if we infer from the fact of defendant’s and Murillo’s mere presence together
that they were talking in the car, there is no reasonable basis to infer that Murillo directed
or encouraged defendant’s reckless actions. It is possible that he did so. But it is also
possible that he urged defendant not to flee and/or not to drive in a way that plainly could
have gotten both of them seriously injured or killed. “We may speculate about any
number of scenarios that may have occurred . . . . A reasonable inference, however, ‘may
not be based on suspicion alone, or on imagination, speculation, supposition, surmise,
conjecture, or guess work.’ ” (Morris, supra, 46 Cal.3d at p. 21.) Here, there was nothing
to support a reasonable inference that Murillo aided and abetted defendant’s reckless
evasion crime.
       The Attorney General maintains that Murillo’s failure to jump out of the car at the
hospital “shows that he shared [defendant’s] intent to evade the police” and “wanted to
assist defendant in the vehicle chase.” We cannot agree. The juvenile bolted from the
car before the chase began. We see no reasonable basis for inferring that defendant and
Murillo had a plan to evade the police or discussed the subject before defendant pulled
over. We see no reasonable basis for inferring that Murillo knew when defendant pulled
over that he would suddenly speed off again. One can speculate that he did. But one can
also reasonably infer from defendant’s intoxicated state that his decision to speed away
from the traffic stop was an impulsive one that he made alone.
       The Attorney General next argues that the fact that Murillo and defendant both
fled after the car careened into the shopping center showed Murillo’s intent to promote,
further, or assist defendant’s criminal conduct. Not so. Murillo’s flight at the shopping
center showed his intent at that moment to evade police. It did not establish that he had
the same intent earlier. When defendant suddenly sped away from Chagnon at the
hospital, Murillo had no choice but to remain in the speeding car that defendant
controlled. Murillo’s mere presence in the car is insufficient to establish that he intended
to or did aid and abet defendant’s commission of the crime. (Francis, supra, 71 Cal.2d at
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p. 72.) Without substantial evidence that he did so, the third element of section 186.22,
subdivision (a) was not satisfied. Defendant’s conviction for active participation in a
criminal street gang cannot stand.3


                      B. Vehicle Code Section 2800.2 Conviction
       Defendant contends that the trial court committed Crawford4 and instructional
error and that but for those two errors, his “Vehicle Code section 2800.2 crime . . . would
not have been proved based on sufficient evidence.” The argument lacks merit.
       There was no Crawford error. Defendant asserts that the prosecution’s gang
expert’s opinions were “based largely on testimonial hearsay” that the trial court
improperly admitted in violation of his Sixth Amendment right to confrontation. We
disagree. The admission of a “testimonial” hearsay statement by a declarant who is not
available at trial violates the confrontation clause of the Sixth Amendment unless the
criminal defendant had a prior opportunity to cross-examine the declarant. (Crawford v.
Washington, supra, 541 U.S. 36 at p. 37 (Crawford).) But “the [confrontation clause]
‘does not bar the use of testimonial statements for purposes other than establishing the
truth of the matter asserted.’ ” (Williams v. Illinois (2012) __ U.S. __ [132 S.Ct. 2221,
2224] [plur. opn. of Alito, J., joined by Roberts, C.J., Kennedy & Breyer, JJ.], quoting
Crawford, at p. 59, fn. 9.) In California, an expert may testify “[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 . . . .” (Evid.

3
       Our determination that there was insufficient evidence to support defendant’s
section 186.22, subdivision (a) conviction makes it unnecessary for us to address his
remaining arguments directed toward obtaining reversal of that conviction.
4
       Crawford v. Washington (2004) 541 U.S. 36, 37 (Crawford).

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Code, § 801; People v. Gardeley (1996) 14 Cal.4th 605, 617-620 (Gardeley).) “The
subject matter of the culture and habits of criminal street gangs . . . meets this criterion.”
(Gardeley, at p. 617.)
       Here, defendant acknowledges that his confrontation clause argument is contrary
Gardeley. We are bound by the high court’s decision. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) Under Gardeley, the prosecution’s gang
expert could properly reveal the information on which he relied in forming his expert
opinions, including out-of-court statements, because those statements are not offered for
their truth.5 (Gardeley, at p. 619.) The first premise of defendant’s insufficiency of the
evidence argument fails.
       There was no instructional error. Defendant claims the court erred by failing to
“specifically advise the jury that this hearsay evidence was admitted solely to support the
opinion of the expert, and not for its truth.” He acknowledges that he did not request a
limiting instruction below. The contention is forfeited. (People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1037.) “[T]he trial court must give a limiting instruction on
evidence admitted to support the gang enhancement only on request.” (People v.
Hernandez (2004) 33 Cal.4th 1040, 1051-1052.)
       Here, the trial court instructed the jury on expert witness testimony with
CALCRIM No. 332, which told the jury that “[y]ou must decide if information on which
the expert relied is true and accurate.” “You may disregard any opinion that you find
unbelievable, unreasonable, or unsupported by the evidence.” The court also gave
CALCRIM No. 1403, which told the jury that evidence of gang activity could be used
only (1) in deciding whether the defendant acted with the intent, purpose and knowledge
required to prove the gang crime charged; (2) in evaluating witness credibility; and (3) in

5
       The California Supreme Court is currently considering whether a defendant’s
Sixth Amendment right to confrontation was violated by a gang expert’s reliance on
testimonial hearsay. (People v. Sanchez, review granted May 14, 2014, S216681.)

                                              10
considering the facts and information relied on by the expert in reaching his opinion. The
instruction specifically states that gang evidence cannot be considered “for any other
purpose” and that “[y]ou may not conclude from this evidence that the defendant is a
person of bad character or that he has a disposition to commit crime.” We think
reasonable jurors would have understood from these instructions that the information on
which the expert relied was not to be unquestioningly accepted as the truth. The second
premise on which defendant supports his insufficiency of the evidence argument also
fails.
         We reject defendant’s claim that there was insufficient evidence (apart from what
he claims was testimonial basis evidence) to support his Vehicle Code section 2800.2
conviction. He concedes that his only defense to that charge was that the jury could have
harbored a reasonable doubt that he (as opposed to Murillo) was the driver of the car.
That defense was exceedingly weak. Bohigian and Fulgoni both provided nonhearsay
eyewitness testimony that defendant was the driver of the car.


                                      III. Disposition
         The judgment is reversed. On remand, the trial court shall strike defendant’s
conviction for violating section 186.22, subdivision (a). The trial court shall prepare an
amended abstract of judgment and forward a certified copy to the Department of
Corrections and Rehabilitation.




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                                ___________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Elia, J.




People v. Zarate
H039134


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