Filed 5/8/15 P. v. Ramirez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061080

v.                                                                       (Super.Ct.No. FWV1300420)

ERNESTO RAMIREZ,                                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Stephan G.

Saleson, Judge. Affirmed.

         Gerald J. Miller, 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, William M. Wood, and Meagan J.

Beale, Deputy Attorneys General, for Plaintiff and Respondent.




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                                               I

                                     INTRODUCTION1

       Defendant and appellant Ernesto Duran Ramirez and a fellow gang member beat

up another inmate while all were in custody in San Bernardino West Valley Detention

Center. A jury convicted defendant of assault by means likely to cause great bodily

injury and conspiracy (§§ 182, subd. (a)(1), and 245, subd. (a)(4)) and found true the

criminal street gang allegations. (§ 186.22, subd. (b)(1).) Defendant admitted he had one

prison prior. (§ 667.5, subd. (b).) The court sentenced him to nine years in prison.

       On appeal, defendant offers little argument about the substantive offenses of

assault and conspiracy. Instead, he challenges the admission of the victim’s spontaneous

statements about the gang-related nature of the crimes. We reject defendant’s

contentions and affirm the judgment.

                                              II

                                 FACTUAL STATEMENT

A. The November 25, 2012 Incident

       On November 25, 2012, Britain Speakman, a San Bernardino County sheriff’s

deputy, and Jeanne Martin, a sheriff’s custody specialist, were working at Unit 2 of the

West Valley Detention Center, a county jail facility. Segment A of Unit 2 housed about

16 inmates per cell. Defendant and David San Miguel were inmates housed in cell No. 8.

Humberto Cervantes was housed in cell No. 2.


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

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       Defendant and San Miguel had been released from their cells for showers at

approximately 10:00 p.m. The showers were located about 45 feet from the “Johnson

door,” leading out of the unit. Martin observed defendant and San Miguel huddled

together, talking.

       When Martin released Cervantes’s cellmate to obtain a snack for diabetes

treatment, Cervantes left their cell without permission, carrying his mattress, towel,

sheets, and other property. He approached the Johnson door, and pressed the intercom

button. Martin asked Cervantes to state his business, and Cervantes said he was afraid

and feared for his life, and that he needed to leave the cell or Segment A. Martin directed

Cervantes to return to his cell but Cervantes requested protective custody before starting

to return to his cell.

       At that point, defendant and San Miguel attacked Cervantes. He dropped his

property and fell down in a fetal position on the concrete floor. Defendant straddled

Cervantes, punching him forcefully in the back of the head with a closed fist. San

Miguel, on Cervantes’s right side, punched him in the face. Cervantes did not have a

weapon and did not hit back. Instead, he tried to protect his face.

       Speakman testified that defendant and San Miguel hit Cervantes about 10 times.

Martin testified Cervantes suffered at least eight blows to the head and defendant and San

Miguel kicked Cervantes at least twice.

       Speakman radioed a report of the fight and verbally commanded defendant and

San Miguel to stop fighting. They continued to hit Cervantes until Speakman threatened

to use pepper spray, and they stopped.

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       Another deputy, Christopher Hess, arrived to help manage the situation.

Cervantes was scared and crying, with tears in his eyes, and a “quivering” lip. Hess

asked Cervantes, “What’s going on” and why he had all his property with him.

Cervantes told Christopher Hess “he didn’t want to be part of the Sureno gang, or the

Southsiders, anymore, and because of the politics that was going on, he wanted to drop

out, and he was targeted or green lighted, hit to be taken out, or hit basically.”

       After separating the inmates, Speakman observed redness on Cervantes’s face but

he did not see any injuries on defendant or San Miguel. In his report, Speakman

described Cervantes’s injuries as “minor,” and the incident as involving a “battery.”

Later, Speakman completed an inmate injury report, in which he described Cervantes’s

injuries as minor bumps and bruises to the head and face.

       Martin testified that she observed fresh injuries to Cervantes, including blood and

broken skin, but that they were not black and blue, like bruises. Hess testified there was

swelling on the left side of Cervantes’s face, cheek, upper forehead, and nose, as well as

cuts or lacerations on the right side of his face and near both ears. The examining nurse

testified that she observed injuries to the left forehead and the front of the neck, which

were consistent with some form of blunt trauma. The nurse monitored Cervantes for

three days for head injuries. Photographs were also introduced of Cervantes’s injuries.

B. Gang Evidence

       The People’s gang expert, Michael Martinez, testified the “Sureno” or

“Southsider” gang uses a series of common signs or symbols, including the abbreviations

“Sur” and “Trece,” which mean “southern” and “13” in Spanish. Martinez explained the

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county jail had problems with Hispanic gangs, whose members, when in custody,

typically switch from a particular street gang to the prison gang that oversees the entire

Hispanic or Sureno population. Inmate members are expected to follow certain rules

involving assaults and narcotics coming into the prison. Those who do not obey are often

targeted for assault.

       Martinez estimated there were about 1,200 members of the Sureno gang in the San

Bernardino County jail system as of November 2012, and the inmate gang members

engaged primarily in extortion and assault. Martinez testified that the Onterio Varrio Sur

gang “currently has control over our jail system.”

       According to pictures and eyewitness testimony, defendant had several tattoos on

his body, including “I.E.” on the neck and “Onterio” on the chest. According to

Martinez, I.E. symbolized the Inland Empire, “a geographical area used by Hispanic

street gangs,” while “Onterio” was a spelling variant of “Ontario,” and shorthand for

Onterio Varrio Sur, an umbrella gang. Based on his experience, it was Martinez’s

opinion that defendant’s tattoos indicated he was a member or strong associate of the

gang. He also believed that San Miguel was a member of an Orange County gang, based

on booking documentation.

       Martinez had investigated and was familiar with several crimes committed by

gang members, including a May 2010 assault for which defendant was convicted. It was

Martinez’s opinion that the current alleged offense was committed in a jail setting for the

benefit of a criminal street gang. That opinion was based in part on statements made by

the victim Cervantes, indicating that he wanted to disassociate himself from the gang and

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as a result was being targeted by gang members, who used assault as a means of

enhancing their reputation and solidifying their control over the prison system. In

particular, Martinez believed that assaulting inmates in front of jail officials would

benefit the gang, by displaying their willingness to act when needed on behalf of the

gang, and by helping the gang gain notoriety within the jail and dissuade others from

leaving the gang. Martinez’s opinion was also based on defendant’s prior conviction, the

“kite” found in his cell, defendant’s tattoos, and the gang clothing worn by defendant.

The kite was a piece of paper with gang-style writing and references and commonly used

to communicate with other gang inmates.

       Martinez was not aware of any field interrogation cards issued to either defendant,

San Miguel, or Cervantes, even though such cards were often used to identify gang

members. He also conceded that not every person with I.E. or Onterio tattoos was

necessarily a gang member, although he had not seen anybody with those tattoos who

was not.

C. The Defense Evidence

       In October and November 2012, Cervantes was placed on suicide watch because

he had made statements about hurting himself. Also in November 2012, after arguing

with another inmate about items purchased from the jail commissary, Cervantes claimed

he needed mental help, and was “controlled by spirits.” Cervantes was disciplined for

causing a major disturbance and taking a swing at another inmate. It was also stipulated

that Cervantes had been convicted of auto theft and grand theft.



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                                             III

           ADMISSION OF CERVANTES’S SPONTANEOUS UTTERANCE

        As already noted, defendant does not contest his involvement in the attack but he

urges the trial court abused its discretion by admitting Cervantes’s statements to deputy

Hess. Before trial, the People moved to admit the statements made by Cervantes that he

did not want to be a Sureno or Southsiders gang member anymore because of “the

politics” and that he believed he was “targeted” or “green lighted” to be “taken out” or

hit. (Evid. Code, § 402.) The motion sought to admit those statements on the ground that

they constituted “spontaneous statements” within the hearsay exception contained in

Evidence Code section 1240. Defendant filed a cross-motion to exclude the statements,

on the ground that they violated defendant’s rights under the Confrontation Clause of the

Sixth Amendment. After a hearing, the court permitted the subject statements to be

admitted because they were “very spontaneous” and were not being offered for truth but

to show Cervantes’s state of mind, and they were reliable, being made immediately after

the beating. The court also found the statements were not testimonial, within the

meaning of the Sixth Amendment and recent United States Supreme Court decisions.

During deliberations, the jury asked to review the testimony about what Cervantes had

said.

        Evidence Code section 1240 provides that “[e]vidence 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

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perception.” The rationale for permitting admission of so-called “spontaneous

statements” as an exception to the rule against hearsay is that the stress of nervous

excitement may overcome the reflective faculties of the declarant, such that the declarant

has had no opportunity to fabricate a false story, and the utterance becomes the

“‘instinctive and uninhibited expression of the speaker’s actual impressions and belief.’”

(People v. Clark (2011) 52 Cal.4th 856, 925; People v. Farmer (1989) 47 Cal.3d 888,

903-904, disapproved on other grounds by People v. Waidla (2000) 22 Cal.4th 690, 724,

fn. 6; People v. Poggi (1988) 45 Cal.3d 306, 318.)

       The crucial element of admissibility is not the nature of the statement but the

mental state of the speaker. (People v. Blacksher (2011) 52 Cal.4th 769, 817, citing

People v. Farmer, supra, 37 Cal.3d at pp. 903-904.) First, there must be some

occurrence startling enough to produce nervous excitement and render the utterance

spontaneous and unreflective; second, the utterance must be made before there has been

time to contrive and misrepresent, i.e. while the nervous excitement still dominated; and,

third, the utterance must relate to the circumstance of the preceding occurrence. (People

v. Morrison (2004) 34 Cal.4th 698, 718; Farmer, at pp. 901, 904.)

       The declarant need not be unavailable as a witness in order to introduce evidence

of his spontaneous statement. However, the admissibility of such statements are subject

to the state and federal constitutional requirements providing criminal defendants with

the right to confront the witnesses against them. Where a spontaneous statement may be

considered “testimonial” in character, it is inadmissible unless the declarant is subject to



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cross-examination at trial. (Crawford v. Washington (2004) 541 U.S. 36; Davis v.

Washington (2006) 547 U.S. 813.)

       The Court in Davis defined the test to determine whether an interrogation was

“testimonial” or “nontestimonial” hearsay: “Statements are nontestimonial when made in

the course of police interrogation under circumstances objectively indicating that the

primary purpose of the interrogation is to enable police assistance to meet an ongoing

emergency. They are testimonial when the circumstances objectively indicate that there

is no such ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.” (Davis

v. Washington, supra, 547 U.S. at p. 822.)

       The trial court’s discretion governs admissibility. (People v. Byron (2009) 170

Cal.App.4th 657, 675, citing People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588,

1597 [instead of calling 911, victim went to police station to report spouse had assaulted

and threatened to kill her, victim’s initial statements to police were nontestimonial under

Crawford because they were “a plea for help in the face of a bona fide physical threat”];

People v. Brenn (2007) 152 Cal.App.4th 166, 173, 177, 178 [victim’s statements to 911

operator and responding officer were admissible under the excited utterance hearsay

exception and nontestimonial under Crawford].)

       Here the circumstances show that Cervantes’s statements were admissible as a

spontaneous utterance describing or explaining what happened while under the stress of

excitement. Furthermore, his statements were admissible because they were not part of a

police investigation and they were not testimonial.

                                             9
       Immediately after suffering the attack, Cervantes was extremely upset and in tears,

his lip quivering, barely able to speak. Hess and the other deputies were still engaged in

trying to control the situation. In response to Hess’s three-word inquiry about “[w]hat’s

going on,” Cervantes offered an explanation, conveying his actual impression and belief

that his life was imminently threatened because he was not willing to participate in a

gang. His statements did not constitute subjective speculation about why he was

attacked. (People v. Farmer, supra, 47 Cal.3d at pp. 904-905.)

       The case cited by defendant, People v. Miron (1989) 210 Cal.App.3d 580, is not

applicable because it involved the interplay of the spontaneous utterance exception and

the lay opinion rule. The defendant’s wife had made a statement that the victim had tried

to kill defendant. The appellate court upheld the trial court’s discretionary decision to

exclude the evidence as lay opinion and did not apply the Farmer rule involving

spontaneous utterance: “The opinion rule excludes admission of a spontaneous statement

of inadmissible opinion [citation], and such opinions or conclusions should be excluded

even where the statement as a whole meets the requirements of Evidence Code section

1240” (id. at p. 583) and “Farmer did not change the rule that opinion testimony may

properly be excluded even where the rest of the statement meets the requirements of

Evidence Code section 1240.” (Id. at p. 584.)

       Instead, the present case is more comparable to People v. Osorio (2008) 165

Cal.App.4th 603, 614, in which an officer asked a victim what had happened during the

chaotic aftermath of an incident. The informal, brief, unstructured exchange between the



                                             10
officer and victim was not testimonial. Applying the above principles, we hold the trial

court did not abuse its discretion in allowing Cervantes’s statements.

       Furthermore, admission of the evidence was not prejudicial because it could not

have plausibly affected the jury’s true findings on the gang allegations. It is undisputed

that defendant and the other inmates were gang members. The attack had all the

hallmarks of gang culture and violence as it unfolds in a jail setting. There is no

reasonable doubt the jury would have made a different finding if the statements had been

excluded. (People v. Pearson (2013) 56 Cal.4th 393, 463.)

                                             IV

                                      DISPOSITION

       The subject statements were spontaneous utterances and were not testimonial. The

trial court did not abuse its discretion in allowing them to be admitted. We affirm the

judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                             J.

We concur:


HOLLENHORST
                 Acting P. J.


MILLER
                           J.




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