Filed 10/7/14 P. v. Gomez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048471

         v.                                                            (Super. Ct. No. 12CF1430)

ALVARO GOMEZ,                                                          OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Francisco
P. Briseno and Sheila F. Hanson, Judges. Judgment affirmed. Motion denied.
                   Donna L. Harris, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lise Jacobson and
Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
              Alvaro Gomez appeals from a judgment after a jury convicted him of two
counts of possession of a firearm by a felon and possession of methamphetamine, and
found true gang and prior felony conviction allegations. Gomez argues there was
insufficient evidence supporting the gang enhancements, the trial court erred in admitting
hearsay evidence, and the court erred in partially denying his motion for peace officer
personnel records. Additionally, he filed a motion to augment the record and asks this
court to independently review the peace officer personnel records the trial court
reviewed. As we explain below, we deny his motion to augment. None of his
contentions have merit, and we affirm the judgment.
                                         FACTS
              In response to a 911 call at 8:04 a.m., Officers Maria Orozco and
Alejandro Partida responded to the area of an attempted robbery. About 8:16 a.m.,
the officers contacted Gomez, who matched the description of the perpetrator of the
attempted robbery, and told him to lie on the ground. Gomez was wearing blue jeans and
a black T-shirt that stated “‘Famous Stars and Straps’” and had a right hand shaped in the
letter “F.” Gomez told the officers he had guns. Partida recovered a gun from Gomez’s
waistband and one from his pocket. Both guns were loaded with live rounds. Partida
also found a bag of methamphetamine in Gomez’s pocket. Officers arrested Gomez.
Later, an officer searched Gomez at the Santa Ana Police Station and found a second bag
of methamphetamine.
              Orozco and Partida interviewed Gomez after advising him of his rights
pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Gomez described the claimed
territory of the F-Troop criminal street gang and said its color was brown. Gomez said he
grew up in F-Troop claimed territory, he “kicks it” or “kicks back” with F-Troop, his
moniker is “Rookie,” and he recently got “Trooper” tattooed on his left ring finger.
Gomez said he got the guns from a man in the riverbed the prior week.



                                             2
              An amended information charged Gomez with two counts of possession of
a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)1 (counts 1 and 2)), and possession
of a controlled substance, methamphetamine (Health and Saf. Code, § 11377, subd. (a))
(count 3). The information alleged Gomez committed counts 1 and 2 for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)), and that he was previously convicted of a
felony (§§ 667, subds. (a)(1), (d) & (e)(1), 1170.12, subds. (b), (c)(1)).
              Gomez and the prosecutor both filed pretrial motions. Gomez filed a
motion for discovery of Orozco’s and Partida’s personnel records pursuant to Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess). Gomez sought records of their lack of
credibility, falsification of police reports, prior acts of moral turpitude, prior law
enforcement employment, and any material pursuant to Brady v. Maryland (1963)
373 U.S. 83. In his declaration supporting the motion, defense counsel stated Orozco and
Partida arrested Gomez, they falsified their police report, and Orozco testified falsely at
the preliminary hearing. The Santa Ana City Attorney opposed the motion.
              At a hearing on Gomez’s motion, the trial court, Judge Francisco P.
Briseno, stated “Pitchess motions are usually done in measured steps[]” and indicated
Gomez’s motion was too broad and too general. The court said defense counsel could
either refile the motion or the court could deny it and counsel could file a writ with this
court. The court added it found one portion of the declaration potentially meritorious and
stated “I’m just trying to help you.” After the court discussed each of the categories of
evidence Gomez sought, the prosecutor argued Partida’s personnel file should not be
reviewed in camera because he did not prepare the police report. The court indicated that
if both parties were “comfortable” with modifying the motion to apply to just Orozco, the
court would proceed. After an off-the-record discussion with counsel, the court on the
record stated it had discussed the matter with counsel off the record and it would limit its
1
              All further statutory references are to the Penal Code, unless otherwise
indicated.

                                               3
review to Orozco. Defense counsel did not object. After reviewing Orozco’s personnel
records in camera, the court ordered the release of contact information of three
complaining civilian witnesses arising from one incident.
              The prosecutor filed a trial brief that included among other things a motion
to admit a transcript and recording of a 911 call from “Jose.” The prosecutor argued the
evidence was relevant to prove the only contested issue at trial, the gang enhancement.
The prosecutor contended the evidence was admissible for the truth of the matter asserted
as spontaneous statements (Evid. Code, § 1240) and for the non-hearsay purpose of
establishing why officers stopped him and as a basis for the gang expert’s testimony. The
prosecutor added admission of the evidence did not violate Gomez’s confrontation rights
pursuant to Crawford v. Washington (2003) 541 U.S. 36 (Crawford).
              A five-page transcript of the call was included with the prosecutor’s trial
brief. We include the complete call because it is relevant to issues on appeal.
              “[Dispatch]: 9-1-1. What is your emergency?
              “[Dispatch 2]: It’s Station 10 with a transfer. Go ahead Jose.
              “Jose: Hi, um, um, I, I was on Santa Clara street right now getting ready to
go to work and, um, I was just [inaudible] and waiting and some guy tried robbing me
right now. He pulled out two handguns from his, from his pocket . . .
              “[Dispatch]: Santa Clara and what cross street?
              “Jose: Bristol. He’s on Bristol now walking. He’s got . . .
              “[Dispatch]: Okay.
              “Jose: . . . a black [inaudible] . . .
              “[Dispatch]: Were you in a car or were you on foot?
              “Jose: I was on foot.
              “[Dispatch]: Okay.
              “Jose: I was walking out from my house going to work and, uh, some guy
just happened to be walking . . . I thought he was going to say “hi.” He pulls out two

                                                4
guns and I didn’t have nothing on me. Somebody came out. I don’t know if he got
spooked but he’s walking down the street now . . .
              “[Dispatch]: Did he . . .
              “Jose: . . . and I’m trying to follow him . . .
              “[Dispatch]: Did he hit you or anything? Did he take anything?
              “Jose: No. No. No. He just approached me, took out two guns, asked me
if I had anything and, uh, kinda [sic] spooked, got spooked when he saw that other person
come out and, uh, I was walking down the street just [sic] want to make sure he doesn’t
hurt anybody.
              “[Dispatch]: Okay, so, he asked you if you had any money or what?
              “Jose: Yeah. He asked me if I knew him, if, he just kind of hit me up. I
don’t know if he was trying to find out if I was from a gang or something. He . . .
              “[Dispatch]: Did he ask you where you’re from?
              “Jose: Yeah. Yeah he did.
              “[Dispatch]: Did he ask you for money or did he ask you . . . what did he
ask you?
              “Jose: Oh he’s like, he hit me up. He’s like “hey, where you from, you got
anything?” He said “you guys got me fucked up.” And I’m just “hey man I’m just here
trying to go to work, cool down man I don’t even know what the fuck’s going on.”
              “[Dispatch]: Okay. And where are you from. And which way is he
walking?
              “Jose: He’s walking down Bristol Street now about Memory Lane.
              “[Dispatch]: Which way?
              “Jose: Uh, um, I’m not, I’m not good on my direction but he’s going
towards Memory Lane right now.
              “[Dispatch]: Okay. And for, did he have two guns?
              “Jose: Yeah.

                                              5
                  “[Dispatch]: Where did he have them, in his pockets?
                  “Jose: Yeah. It looked like he had one in both hands. One in one, one in
the other . . .
                  “[Dispatch]: Did he leave them in his hands?
                  “Jose: Yeah.
                  “[Dispatch]: Okay. And now he’s walking like, towards Orange?
                  “Jose: Yeah. Down, down Bristol still, heading towards Memory Lane.
He had a big logo on his shirt, on his black shirt. He had a red shirt on, it looks like he
took it off.
                  “[Dispatch]: What race is he . . . white, black, Hispanic?
                  “Jose: He’s Hispanic with about a high-top fade.
                  “[Dispatch]: A what? High top?
                  “Jose: A high fade.
                  “[Dispatch]: What do you mean?
                  “Jose: He’s got a fade. [H]e’s not bald. He’s got a fade like he’s got . . .
                  “[Dispatch]: Oh a hair, okay, short hair. Black hair?
                  “Jose: Uh, not short kinda [sic] long.
                  “[Dispatch]: Black hair. Okay.
                  “Jose: Not long, not long but it’s like . . . yeah.
                  “[Dispatch]: Okay. Okay. And, um, how tall is he?
                  “Jose: Uh. He looks to be about 5’7, 5’6.
                  “[Dispatch]: Okay. And, um, what, uh, what about how old was he?
                  “Jose: Uh, you know what he looked pretty young. To tell you the truth
I’m not sure about how young. Maybe . . .
                  “[Dispatch]: Eighteen, twenty?
                  “Jose: Nah. Seventeen, eighteen maybe.



                                                  6
              “[Dispatch]: Seventeen, eighteen years. Okay. And what was he wearing.
What color shirt?
              “Jose: Uh, he was wearing a black shirt with a big, with a big logo . . .
              “[Dispatch]: Black shirt?
              “Jose: . . . in the middle of it . . . Yeah a black shirt. He had a red shirt on
but it looks like he took it off. Now he’s walking with a black shirt, with a black shirt
with a big logo and blue jeans.
              “[Dispatch]: Where’s the logo at? Is it in the front or back?
              “Jose: Middle of his shirt. Front.
              “[Dispatch]: Did you know what the logo was?
              “Jose: No. No.
              “[Dispatch]: And he took off a red shirt you said or . . .
              “Jose: Yeah.
              “[Dispatch]: . . . sweater or?
              “Jose: Yeah. A shirt.
              “[Dispatch]: Is he holding it?
              “Jose: Nah. It looks like he tossed it.
              “[Dispatch]: Okay. And what color pants is he wearing?
              “Jose: Blue jeans.
              “[Dispatch]: No hat or anything right?
              “Jose: Nah.
              “[Dispatch]: Facial hair?
              “Jose: Nah.
              “[Dispatch]: Okay that tee, the black shirt, was it like a t-shirt type or
button up shirt or what was it?
              “Jose: It was a regular shirt. Ma’am do you guys really take this long,
what if he would have shot me?

                                               7
               “[Dispatch]: Yeah I’m already, as I’m talking to you the officers are
already on their way.
               “Jose: Oh okay, okay.
               “[Dispatch]: Okay so where are you going to be so the officers can meet
you?
               “Jose: Um, you know what? I, I’m going to work. I don’t want that guy to
see me. Cause [sic] it looks he’s seen me . . . it looks like he knew the area pretty well
so, I mean, I got kids and my families [sic] are on there and I don’t want any problems.
That’s why I called you guys.
               “[Dispatch]: Okay. So you don’t want any contact with officers? To . . .
               “Jose: No.
               “[Dispatch]: . . . make a report of it?
               “Jose: No I just want to make sure, I mean, I want to make sure you guys
pick him up cause [sic] . . .
               “[Dispatch]: Well if we pick him up we can’t charge him unless there’s a
victim.
               “Jose: Okay.
               “[Dispatch]: So we need you, I mean, we can probably stop him if we can
and if he is armed them [sic] maybe they can do something with that but if you’re a
victim . . .
               “Jose: Yeah. I mean that’s what I want. I know . . .
               “[Dispatch]: We’re gonna [sic] need you to be a victim though? We’re not
going to be able to charge him for attempt robbery if you’re not there to be a witness.
               “Jose: I mean if you can’t charge him for that then that’s fine. But if, I
mean I know you guys will at least charge him for the guns. If he has two guns on him
and he’s under age . . .
               “[Dispatch]: Okay. What is your name?

                                               8
               “Jose: Jose.
               “[Dispatch]: And your last name Jose?
               “Jose: I’d rather not give it.
               “[Dispatch]: Okay.
               “Jose: But like I said I’ve had problems before and, and . . .
               “[Dispatch]: Do you know him? Have you seen him before in the area?
               “Jose: Uh, you know what no, I seen, I’ve never seen him but he looks like
some of the younger kids that have been roaming around there causing trouble and you
know this morning just to have a good wake, wake-up morning for me. You know, to
wake up and see those two guns with a young punk I just don’t want no problems. I’m
sure that you guys will be able to charge him if they found them on him. He’s not the
legal age to have them.
               “[Dispatch]: Okay, um, are you still walking or are you behind him?
               “Jose: No. I’m driving. I’m driving. I, I, I drove, I drove to follow him as
far as I could, I got on the, I got on the free . . .
               “[Dispatch]: Oh you were . . .
               “Jose: . . . [Y]eah, I got on the freeway and I’m headed towards work.
               “[Dispatch]: Okay. Alright, um, I’ll have the officers call you if they have
any questions then okay?
               “Jose: Okay.
               “[Dispatch]: Alright. Bye-bye.”
               At a hearing on the prosecutor’s motion, the recording of the call was
played for the trial court. Gomez objected to admission of the transcript and recording of
Jose’s 911 call. Gomez argued the evidence was not relevant, was not a spontaneous
statement, and violated his right to confront and cross-examine Jose. Gomez asserted the
evidence was not relevant unless Jose testified Gomez was the man who confronted him.
He stated the evidence was not admissible pursuant to Evidence Code section 1240

                                                  9
because Jose was in his car driving to work and his statements were thoughtful and
reflective. He also claimed Jose apparently had another conversation with the first
dispatcher and he had time to reflect. Finally, he contended the statements were
testimonial because the dispatcher urged Jose to speak with police because they needed a
victim. The prosecutor argued the evidence was relevant because of the near perfect
description by Jose of what Gomez was wearing, the spontaneity of the statements must
be considered based on the totality of the circumstances, and the statements were not
testimonial.
               After stating it was required to perform a multilevel analysis, the trial court
ruled the 911 call was admissible because it was relevant, the statements were
spontaneous, and the statements were non-testimonial. The court opined Jose was
describing what he was observing and Jose was “still under the effects of the
observations.” The court stated the prosecution proved by a preponderance of the
evidence the “911 call is a spontaneous statement and admissible under Evidence Code
section 1240.” After providing a lengthy discussion of the relevant federal and California
authority, the court said Jose’s statements did not have a level of formality or solemnity
because Jose’s statements were to assist law enforcement apprehend the individual and
thus they were not testimonial. Finally, the court stated Jose’s description accurately
described Gomez’s physical features, clothing, and weapons. The court concluded the
911 call was admissible because any undue prejudice did not substantially outweigh the
evidence’s probative value. During trial, the trial court overruled Gomez’s objections to
admission of the 911 call when the recording was played for the jury and denied his
motion for mistrial.
               At trial, the prosecutor offered the testimony of criminal street gang expert,
Detective Armando Chacon. After detailing his background, training, and experience,
Chacon testified concerning the culture and habits of traditional, turf-oriented Hispanic
criminal street gangs. He explained the vital importance of respect within gangs. “The

                                              10
more crimes you commit, the more illegal activities you commit, the more respect you’re
given within that group.” He said earning respect is the only way a gang member rises
through the ranks and achieves status in the gang. He said guns are extremely important
because gang members use guns to commit crimes, intimidate the community, and
disrespect rival gangs. Gomez stated F-Troop gang members express membership in the
gang verbally and non-verbally. He said F-Troop gang members claim the gang
non-verbally by wearing Famous Stars and Straps garb and by having F-Troop tattoos.
He added gang members can drop out of gangs, but it is uncommon, and the former gang
member would be punished for wearing the gang’s symbols or colors or having a gang
tattoo. He explained a “hit up” is when a gang member confronts someone and asks
“‘where are you from?’” to determine whether the person is in a gang. He said a gang
member is “putting in work” when he commits crimes that benefit the gang. According
to Chacon, possessing guns are examples of “putting in work” for the gang.
              Chacon also testified concerning his significant experience investigating
F-Troop. He testified that at the time of the incident F-Troop had about 50 members, its
common signs or symbols were “F-T-R-O-O-P,” “F-X-T, R-O-O-P,” “Malditos,” and
“Trooper,” its color was brown, and its rivals were all the gangs in the city but two. He
said F-Troop gang members commonly wear the Famous Stars and Straps logo on hats,
T-shirts, or sweatshirts because of the enlarged “F.” He stated F-Troop’s primary
activities were robbery and various felony firearm offenses. He described F-Troop’s
claimed territory and stated F-Troop gang members have committed numerous crimes
outside F-Troop claimed territory. He also testified concerning the predicate offenses,
including Gomez’s 2011 conviction for assault with a deadly weapon committed for the
benefit of F-Troop. He said on another occasion, Gomez pleaded guilty to possessing a
concealed firearm for the benefit of F-Troop. He opined F-Troop was a criminal street
gang as statutorily defined. He also opined Gomez was a member of F-Troop at the time



                                            11
of the offense based on the facts of the case, including Gomez’s T-shirt and tattoo, and
Gomez’s criminal history.
              In response to hypothetical questions based on the circumstances of the
case, Chacon opined the offenses were committed for the benefit of and with the specific
intent to promote the gang. Chacon explained a gang member earns respect by carrying a
handgun and committing crimes. He added that when a gang member commits a crime
alone, he does so “in the name of the group.” He added the fact the gang member
committed the crime adjacent to the gang’s claimed territory indicates the gang member
was trying to expand the gang’s territory, which would also instill fear in rival gangs and
in the community. He added the evidence showed the gang member “hit up” the victim
and attempted to rob him. He said the gang member instilled fear in the victim, which
prevented the victim from wanting to report the incident, and the gang member’s and the
gang’s status was elevated.
              On cross-examination, Chacon admitted Gomez’s prior statements
indicated he had not been “jumped in” F-Troop but that he grew up in the area. During
Chacon’s testimony, the trial court again overruled Gomez’s objections to admission of
the 911 call because the evidence was relevant to prove the gang enhancement.
              At the close of the prosecutor’s case-in-chief, Gomez moved to dismiss the
gang enhancements as to counts 1 and 2 pursuant to section 1118. The trial court denied
the motion concluding there was sufficient evidence to submit the matter to the jury.
              Carmen Garcia, Gomez’s aunt, testified for the defense. She stated Gomez
lived with her in Anaheim at the time of the offense.
              During closing argument, the prosecutor argued there was no real dispute
Gomez committed counts 1, 2, and 3. He argued the only real dispute was the gang
enhancements. The prosecutor argued the jury could find true the gang enhancements
based solely on his possession of the guns while wearing gang clothing without relying
on Gomez’s confrontation of Jose.

                                            12
                Defense counsel invited the jury to hold Gomez accountable for his conduct
but asserted the gang enhancements were based on assumptions. Gomez’s defense was
he did not possess the guns for the benefit of F-Troop but instead for self-defense and he
was trying to leave F-Troop. The trial court properly instructed the jury on the gang
enhancements, with CALCIM No. 1401, “Felony . . . Committed for Benefit of Criminal
Street Gang.”
                The jury convicted Gomez of all counts and found true the enhancement
allegations. After denying Gomez’s motion to strike his prior conviction pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the trial court sentenced
Gomez to prison for 12 years as follows: count 1-four years plus a consecutive term of
three years for the gang enhancement; and five years for the prior felony conviction. The
court imposed and stayed sentence on count 2 pursuant to section 654, and imposed a
concurrent sentence on count 3.
                                        DISCUSSION
I. Sufficiency of the Evidence
                Gomez contends insufficient evidence supports the jury’s finding he
committed counts 1 and 2 for the benefit of a criminal street gang. We disagree.
                “‘In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] “A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.” [Citation.]’ (People v.

                                              13
Albillar (2010) 51 Cal.4th 47, 59-60 . . . (Albillar).) The same test applies to the review
of special circumstantial findings. [Citation.]” (People v. Livingston (2012) 53 Cal.4th
1145, 1170.)
               “[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 of years. (§ 186.22, subd. (b)(1).)
               In Albillar, supra, 51 Cal.4th at page 60, the California Supreme Court
explained that although not every crime committed by gang members is related to a gang
for purposes of the first prong, a crime can satisfy the first prong when it is committed for
the benefit of a criminal street gang, at the direction of a criminal street gang, or in
association with a criminal street gang. The Albillar court also explained the second
prong, which requires the defendant commit the gang-related felony “with the specific
intent to promote, further, or assist in any criminal conduct by gang members” (§ 186.22,
subd. (b)(1)), need not encompass proof the defendant committed the crime with the
specific intent to promote, further, or assist other criminal conduct by gang members.
Instead, that subdivision “encompasses the specific intent to promote, further, or assist in
any criminal conduct by gang members—including the current offenses—and not merely
other criminal conduct by gang members.” (Albillar, supra, 51 Cal.4th at p. 65.)
               The Albillar court stated a gang expert’s opinion is admissible as part of
the evidentiary showing on how the crimes can benefit the gang. (Albillar, supra,
51 Cal.4th at p. 63.) “‘Expert opinion that particular criminal conduct benefited a gang’
is not only permissible but can be sufficient to support the . . . section 186.22,
subdivision (b)(1), gang enhancement. (Albillar, supra, 51 Cal.4th at p. 63.)” (People v.
Vang (2011) 52 Cal.4th 1038, 1048.)

                                              14
              We conclude there was sufficient evidence, other than Chacon’s testimony,
from which the jury could reasonably conclude Gomez committed counts 1 and 2 for the
benefit of F-Troop. Gomez “acknowledges” there was evidence at trial demonstrating he
was a member or associate of F-Troop, and he does not dispute F-Troop was a criminal
street gang as statutorily defined. The jury heard evidence Gomez had previously
pleaded guilty to committing offenses for the benefit of F-Troop on at least two
occasions. Additionally, F-Troop’s primary activities included firearm offenses, and
Gomez was prosecuted for two counts of possession of a firearm by a felon.
              The evidence established that when officers stopped Gomez, he had two
guns, he was wearing a T-shirt emblazoned with F-Troop’s logo, and he had recently
gotten an F-Troop tattoo. Chacon opined gang members who commit crimes alone do so
“in the name of the gang.” Chacon explained a gang member is “putting in work” when
he commits crimes that benefit the gang, possessing guns are examples of “putting in
work” for the gang, and guns are the primary tool for gangs to commit crimes, intimidate
the community, and disrespect rival gangs. Chacon testified someone who was not a
member of F-Troop would be punished for wearing clothing with the gang’s logo or
having a gang tattoo. Finally, when presented with a hypothetical question, Chacon
opined the offenses were committed for the benefit of a gang because the gang member
wore gang attire and possessed loaded guns to instill fear in the community and expand
the gang’s claimed territory. Based on the entire record, a rational trier of fact could have
concluded beyond a reasonable doubt Gomez possessed the guns for the benefit of
F-Troop.
              There was also sufficient evidence from which the jury could reasonably
conclude Gomez committed counts 1 and 2 with the required scienter—the specific intent
to promote a criminal street gang. During his interview with officers, Gomez admitted he
“kicks back” with F-Troop and he recently got “Trooper” tattooed on his finger. This
evidence refutes Gomez’s defense he was trying to leave the gang, and instead

                                             15
demonstrates he was associated with and devoted to F-Troop. Again, the evidence
demonstrated Gomez walked through an area adjacent to F-Troop claimed territory
armed with two loaded guns, one of F-Troop’s primary activities, and wearing clothing
displaying F-Troop’s logo. In response to a hypothetical question, Chacon opined that
the possession of the firearms “assists in felony criminal conduct by members of
F-Troop[]” because possession of guns facilitates criminal conduct and instills fear in the
community and rival gangs. Based on the circumstances of the case, and Chacon’s expert
testimony, a rational trier of fact could reasonably conclude Gomez had the specific
intent to promote any criminal conduct by gang members. (Albillar, supra, 51 Cal.4th at
p. 65.)
              People v. Garcia (2007) 153 Cal.App.4th 1499, is instructive. In that case,
another panel of this court held sufficient evidence supported the jury’s finding defendant
carried a loaded unregistered weapon in public for the benefit of a criminal street gang,
based on evidence that is not as strong as the evidence in this case. In that case, officers
stopped defendant, an active gang member who had committed gang crimes, for a traffic
violation and found the gun. (Id. at pp. 1502-1504.) Defendant contended he had been
shot and he possessed the gun solely for self-defense. (Id. at p. 1512.) Based on the gang
expert’s testimony on the importance of guns in gangs and the respect gang members and
gangs garner from possessing guns, the court held sufficient evidence supported the
jury’s finding on the street terrorism enhancement. (Ibid.) As we explain above, the
record includes evidence from which the jury could reasonably conclude Gomez, an
F-Troop associate who had a gang tattoo and wore gang clothing, possessed the guns for
the benefit of and with the specific intent to promote F-Troop.
              Gomez raises two contentions. First, he seems to argue insufficient
evidence supports the conclusion he was the person who “‘hit up’” Jose. Second, Gomez
claims he was not in F-Troop territory, he was not wearing F-Troop’s color (brown), he
was wearing a red sweatshirt over his Famous Stars and Straps T-shirt, his tattoo was

                                             16
small and not mentioned by Jose, he did not claim F-Troop, and he did not brandish the
guns as he walked through the neighborhood. As we explain above, there was sufficient
evidence for the jury to reasonably conclude that when officers stopped Gomez he
possessed the guns for the benefit of and with the specific intent to promote F-Troop
without considering Jose’s 911 call. Additionally, Gomez’s reliance on evidence
favorable to him and dismissal of damaging evidence is simply an invitation to reweigh
the evidence and substitute our judgment for the jury’s. That we cannot do. (Albillar,
supra, 51 Cal.4th at pp. 59-60.)
              Based on the entire record, the jury could reasonably conclude Gomez was
a felon who possessed the firearms for the benefit of and with the specific intent to
promote criminal conduct by gang members. Thus, there was sufficient evidence
supporting the jury’s verdicts Gomez committed counts 1 and 2 for the benefit of a
criminal street gang.
II. Admissibility of Evidence
              Gomez argues the trial court erred in admitting evidence of Jose’s 911 call
because the statements were irrelevant, were inadmissible hearsay, and violated his
Sixth Amendment confrontation rights. His claims are meritless.
A. Evidence Code section 1240
              Gomez argues Jose was not under stress or excitement during the 911 call.
Relying on the fact the 911 call was with a second dispatcher after having spoke with a
first dispatcher, he also contends Jose’s statements were not made before he had time to
contrive and misrepresent. Neither claim has merit.
              Because Jose’s statements were made out of court and admitted for their
truth, they constituted hearsay. (Evid. Code, § 1200, subd. (a).) “Except as provided by
law, hearsay evidence is inadmissible.” (Evid. Code, § 1200, subd. (b).) Evidence Code
section 1240 however provides: “Evidence of a statement is not made inadmissible by
the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act,

                                              17
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.” The theory
underlying this exception is the declarant’s lack of opportunity for reflection and
deliberate fabrication supply an adequate assurance of the statement’s trustworthiness.
(People v. Clark (2011) 52 Cal.4th 856, 925 (Clark).)
              For admission of a spontaneous statement, “‘(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 the reflective powers to be yet in abeyance; and (3) the utterance
must relate to the circumstance of the occurrence preceding it.’ [Citations.]” (People v.
Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) For purposes of this exception to the hearsay
rule, spontaneous means the statement is made without reflection. “‘“Neither lapse of
time between the event and the declarations nor the fact that the declarations were elicited
by questioning deprives the statements of spontaneity if it nevertheless appears that they
were made under the stress of excitement and while the reflective powers were still in
abeyance.” [Citation.]’ [Citation.]” (People v. Thomas (2011) 51 Cal.4th 449, 495-496.)
              “Whether the requirements of the spontaneous statement exception are
satisfied in any given case is, in general, largely a question of fact. [Citation.] The
determination of the question is vested in the court, not the jury. [Citation.] In
performing this task, the court ‘necessarily [exercises] some element of discretion . . . .’
[Citation.]” (Poggi, supra, 45 Cal.3d at p. 318.) The preliminary facts that bring
statements within the exception require only proof by a preponderance of the evidence.
(People v. Tewksbury (1976) 15 Cal.3d 953, 966.) “[W]e will uphold the trial court’s
determination if it is supported by substantial evidence. [Citation.] We review for abuse
of discretion the ultimate decision whether to admit the evidence. [Citations.]” (People
v. Phillips (2000) 22 Cal.4th 226, 236.) “Because the second requirement [viz., that the

                                             18
utterance must have been made before there has been time to contrive and misrepresent]
relates to the peculiar facts of the individual case more than the first or third does
[citations], the discretion of the trial court is at its broadest when it determines whether
this requirement is met [citation].” (Poggi, supra, 45 Cal.3d at pp. 318-319.)
              Evidence Code section 352 authorizes a trial court to exclude relevant
evidence if its probative value is substantially outweighed by undue prejudice. We
review a trial court’s evidentiary rulings for an abuse of discretion. (People v. Davis
(2009) 46 Cal.4th 539, 602.)
              Here, when Jose walked out of his home to go to work that morning, a man
armed with two guns “hit him up” and tried to rob him. A complete reading of the
transcript shows Jose was emotional and distressed when he spoke with the 911
dispatcher. Jose stuttered throughout the call and was at times inaudible. Jose twice told
the dispatcher he was concerned because the man was armed and he wanted police to
arrest him. Jose also said he was afraid because the man appeared to know the area well
and had seen Jose. Jose was afraid for his family’s safety and had problems in the
neighborhood before. At one point, Jose asked the dispatcher, “[D]o you guys really take
this long . . . ?” Under these circumstances, we cannot say the trial court erred in
determining Jose made his statements concerning the confrontation and its aftermath
while still under the influence of nervous excitement caused by the event so that his
utterances were spontaneous and unreflecting.
              Neither the fact Jose’s declarations were elicited by questions (Poggi,
supra, 45 Cal.3d at p. 319 [fact statements in response to questions does not deprive
statements of spontaneity if made under nervous excitement and without reflection]), nor
the fact he was driving alter our conclusion (People v. Saracoglu (2007) 152 Cal.App.4th
1584, 1589 [that declarant may have “had the wherewithal to drive herself and her child
to the police station in order to make her escape” from defendant’s domestic assault did
not mean statements at police station lacked spontaneity as being made after opportunity

                                              19
to deliberate and reflect]). Additionally, that Jose spoke with a first dispatcher before
being transferred to a second dispatcher does not compel a different result. “‘The amount
of time that passes between a startling event and subsequent declaration is not dispositive,
but will be scrutinized, along with other factors, to determine if the speaker’s mental state
remains excited.’ [Citations.]” (Clark, supra, 52 Cal.4th at p. 926.) Gomez does not
claim, and the record does not support, the conclusion a significant amount of time
passed between the incident and the 911 call. Jose’s description of the events in the
present tense support the inference he called 911 immediately and there was no time to
contrive and misrepresent.
              Finally, the trial court’s ruling the 911 call was admissible under
Evidence Code section 352 was not an abuse of discretion. The trial court opined Jose’s
statements were relevant to the gang enhancement because it was a traditional gang
“hit[-]up.” Although Gomez strongly disputes the weight of that evidence as it relates to
the gang enhancement, he does not dispute its admissibility as to that issue. Recognizing
we give great deference to a trial court’s evidentiary rulings, evidence of Jose’s 911 call
could be classified as character evidence prohibited by Evidence Code section 1101,
subdivision (a).
              Gomez was not prosecuted for the incident with Jose. He was prosecuted
for possessing guns and methamphetamine police later found on him. And it was alleged
Gomez possessed the guns for the benefit of and with the specific intent to benefit
F-Troop. The admission of the 911 call allowed the jury to infer Gomez previously
engaged in a gang “hit up” and attempted to rob Jose to prove he later possessed guns for
the benefit of and with the specific intent to promote F-Troop. Although officers
detained Gomez about 10 minutes after the incident, admission of the 911 call permitted
the jury to infer Gomez engaged in prior bad conduct to prove the gang enhancement.
Additionally, the relevance of that evidence was diminished by the fact Jose did not
testify and identify Gomez as the assailant. But because of the strong similarities

                                             20
between Jose’s description of the perpetrator and Gomez’s physical features and clothing,
there was sufficient evidence to submit the issue to the jury. (People v. Blacksher (2011)
52 Cal.4th 769, 811 (Blacksher) [issue of declarant’s observations went to weight of her
statements not their admissibility].) Thus, we cannot say the trial court erred in
concluding the 911 call’s prejudicial effect did not substantially outweigh its probative
value. Therefore, the court did not err in admitting evidence of Jose’s 911 call pursuant
to Evidence Code section 1240.
B. Confrontation Clause
               In Crawford, supra, 541 U.S. 36, the United States Supreme Court
reexamined the application of the Sixth Amendment to the admission of hearsay
statements. Crawford established, except in circumstances not relevant here, if a hearsay
statement is testimonial in nature it cannot be introduced against a criminal defendant
unless the declarant is unavailable, and the defendant had a previous opportunity to cross-
examine the declarant. (Crawford, supra, 541 U.S. at pp. 53-54.) The Crawford court
did not give a comprehensive definition of the term “testimonial” and subsequent cases
have addressed how the rule should be applied.
               In Davis v. Washington (2006) 547 U.S. 813, 821-824 (Davis), the Supreme
Court consolidated two domestic violence cases—Davis v. Washington and Hammon v.
Indiana (Hammon)—and defined the contours of the confrontation clause in emergency
situations. In Davis, the victim called 911 as she was being attacked by her assailant, and
in response to questions by the 911 operator, said the assailant was “jumpin’ on” her and
he was using his fists and had no weapons. (Davis, supra, 547 U.S. at p. 817.) The
Supreme Court concluded the circumstances of the 911 operator’s questioning
“objectively indicate its primary purpose was to enable police assistance to meet an
ongoing emergency.” (Id. at p. 828.) The Court stated the victim was not “acting as a
witness” or “testifying,” and that “[w]hat she said was not ‘a weaker substitute for live
testimony’ at trial . . . .” (Ibid., italics omitted.)

                                                 21
              In Hammon, police responded to a domestic disturbance call at a home, and
the victim was alone on the front porch when the two officers arrived. She appeared
somewhat frightened but said “‘“nothing was the matter.”’” (Davis, supra, 547 U.S. at
p. 819.) Inside the house, defendant told the officers that he and the victim had been
arguing but that it never became physical. (Ibid.) While one officer remained with
defendant, the other spoke to the victim in another room. (Ibid.) There, the victim told
the officer defendant broke the phone, lamp, and heater, and he threw her down into the
glass of the heater and punched her in the chest. (Id. at p. 820.) The Supreme Court
concluded, “There was no emergency in progress; the interrogating officer testified that
he had heard no arguments or crashing . . . .” (Id. at p. 829.) The Court concluded,
“Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was
to investigate a possible crime—which is, of course, precisely what the officer should
have done.” (Id. at p. 830, italics omitted.) The Court held the statements were therefore
inadmissible under Crawford. (Davis, supra, 547 U.S. at p. 829.)
              The issue again was revisited by the Supreme Court in Michigan v. Bryant
(2011) 562 U.S. ___ [131 S.Ct. 1143] (Bryant). A jury convicted defendant of shooting
the victim. Police responded to the location of the victim and discovered he had been
shot in the abdomen. The victim told officers he had been at defendant’s home and had
been shot through the back door. After being shot, he got in his car and drove to a gas
station where officers found him. (Id. at p. ___ [131 S.Ct. at p. 1150].) Applying the test
in Davis, the Supreme Court concluded the statements were not testimonial because an
objective view of the totality of the circumstances established the primary purpose of the
interrogation was to respond to an ongoing emergency. (Bryant, supra, 562 U.S. ___
[131 S.Ct. at pp. 1162-1167].)
              The California Supreme Court summarized Crawford, Davis, and Bryant in
Blacksher, supra, 52 Cal.4th 769. The Blacksher court opined Crawford “added a second



                                            22
layer of inquiry when hearsay is offered against a criminal defendant.” (Blacksher,
supra, 52 Cal.4th at p. 811.) It explained: “It is the ‘primary purpose of creating an
out-of-court substitute for trial testimony’ that implicates the confrontation clause.
[Citation.] Consequently, if a statement is not offered for its truth, or is nontestimonial in
character, the confrontation clause is not a bar to admission. Thus, the touchstone
questions are whether a statement is hearsay offered against a criminal defendant,
whether the statement is otherwise admissible under a hearsay exception, and, if so,
whether the statement is testimonial.” (Id. at p. 813.) The California Supreme Court also
identified six factors to be considered when determining whether the primary purpose of
both the declarant and the investigating officer was to create an out-of-court substitute for
trial testimony: (1) the circumstances of the encounter, (2) whether an ongoing
emergency existed, although the lack of an emergency does not necessarily make a
statement testimonial, (3) the circumstances of the emergency, if one existed, (4) the
medical condition of the declarant, (5) the status of the emergency when the statement
was obtained, and (6) the informality of the statement and the circumstances of its
acquisition. (Id. at pp. 814-815.)
              The Blacksher court applied these factors to evaluate statements made to
police officers. The declarant spoke to officers at her house, where her daughter and
grandson had been shot. She told officers defendant, her son, had shot the victims. The
responding officer spoke with the declarant for approximately 15 minutes. The officer
asked questions about the shooting, including questions related to defendant’s current
location. The officer learned defendant was not at the house so the officers suspected the
shooter had fled. It also was reasonable to presume defendant was armed with the
firearm used in the murders. The court observed the declarant was visibly upset, and the
interview occurred in the front yard of declarant’s home, with a neighbor present, under
chaotic conditions. (Blacksher, supra, 52 Cal.4th at pp. 816-817.) The Supreme Court



                                             23
concluded it was objectively reasonable for the officers to believe an armed perpetrator
remained at large and presented an emergency situation. (Id. at p. 816.)
              Applying the Blacksher factors to Jose’s 911 call, we conclude an objective
view of the totality of the circumstances established the primary purpose of Jose’s
statements was to respond to an ongoing emergency. As Jose left his home that morning
to go to work, a man “hit [him] up” and attempted to rob him armed with two guns.
After the man fled, Jose called 911 and spoke with a dispatcher. As Jose drove to work,
he detailed what had happened, gave a physical description of the man and what he was
wearing, and in which direction he was walking. Jose said “I . . . just want to make sure
he doesn’t hurt anybody.” Jose provided the dispatcher with the circumstances of the
confrontation and that the man was walking down the street during morning rush hour in
a well traveled area armed with two guns. There was no formality to the statements as
they occurred during a rapid and fluid call where Jose was describing what happened as
he observed it. Like Blacksher, we conclude Jose’s statements were not testimonial
because he described an ongoing emergency.
              Gomez argues there was no ongoing emergency because Jose was not
injured and he was no longer in danger. He also asserts Jose’s statements were
testimonial because the dispatcher intended to obtain evidence from Jose and encouraged
him to provide his name and meet with police to prosecute the man for the attempted
robbery. As we explain above, there was an ongoing emergency that endangered the
public at large. A man armed with two guns walked down a busy street where he could
encounter people going to work and children going to school.
              Additionally, Gomez’s focus on the end of the call misses the mark. It is
true non-testimonial statements addressing an emergency may convert subsequent
statements into testimonial statements. (Blacksher, supra, 52 Cal.4th at p. 814.)
However, “The inquiry is on the primary purpose of both the officer and declarant.”
(Ibid.) Based on a complete reading of the transcript, we conclude the primary purpose

                                            24
was to neutralize an ongoing emergency. Far from having a testimonial purpose, Jose
was determined not to get involved. Thus, we conclude the trial court properly ruled
admission of the 911 call evidence did not violate Gomez’s confrontation clause rights.
C. Prejudice
               Assuming for the sake of argument there was error, either because Jose’s
statements were not spontaneous or they were testimonial, we conclude Gomez was not
prejudiced even under the more onerous federal harmless error standard of review.
               “Confrontation clause violations are subject to federal harmless-error
analysis under Chapman v. California (1967) 386 U.S. 18, 24 . . . . [Citation.] ‘Since
Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction
should not be set aside if the reviewing court may confidently say, on the whole record,
that the constitutional error was harmless beyond a reasonable doubt.’ The harmless
error inquiry asks: ‘Is it clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error?’ [Citation.]” (People v. Geier (2007) 41
Cal.4th 555, 608, overruled on another ground in Melendez-Diaz v. Massachusetts (2009)
557 U.S. 305.) It is undisputed Gomez was a convicted felon who possessed two loaded
guns and methamphetamine. And as we explain above more fully, there was sufficient
evidence without considering the circumstances of the Jose encounter to conclude Gomez
possessed the guns for the benefit of and with the specific intent to promote F-Troop.
III. Pitchess Motion
               Relying on the fact Orozco and Partida arrested him and Partida was
present from the time of arrest through his interview at the police station, Gomez argues
the trial court erred in denying his Pitchess motion as to Partida. Not so.
               “To determine whether the defendant has established good cause for
in-chambers review of an officer’s personnel records, the trial court looks to whether the
defendant has established the materiality of the requested information to the pending
litigation . . . .” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026 (Warrick ).)

                                             25
Accordingly, the court is to ask whether defense counsel’s affidavit “adequately
responds” to the following questions: “Has the defense shown a logical connection
between the charges and the proposed defense? Is the defense request for Pitchess
discovery factually specific and tailored to support its claim of officer misconduct? Will
the requested Pitchess discovery support the proposed defense, or is it likely to lead to
information that would support the proposed defense? Under what theory would the
requested information be admissible at trial? . . .” (Warrick, supra, 35 Cal.4th at pp.
1026-1027, italics added.) We review the trial court’s ruling on a Pitchess motion for an
abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992.)
              Here, Gomez has not demonstrated the trial court abused its discretion in
denying his Pitchess motion as to Partida. After reviewing Gomez’s moving papers, the
trial court indicated the motion was too general and too broad and it was inclined to deny
the motion. The court went so far as to provide Gomez with the opportunity to refile the
motion and provided defense counsel with guidance on how to tailor the motion. Despite
the court’s preference for strictly following the Pitchess guidelines, the court indicated it
could handle the matter informally and modify the motion to apply only to Orozco.
Gomez did not object. The court stated it would not review Partida’s personnel file
in camera because Partida did not prepare the police report. We cannot conclude the
court abused its discretion in denying Gomez’s Pitchess motion as to Partida after it went
to great pains to assist Gomez. Moreover, Gomez’s silence at the hearing was an implicit
agreement to informally modify his motion.
              Gomez also invites this court to independently review the records Judge
Briseno reviewed. Gomez filed a motion to augment the appellate record to include
copies of the materials reviewed by Judge Briseno during the course of its in camera
review. The law does not require this.
              The trial court can make a record for appellate review by either describing
the documents it reviews or ordering them photocopied. (People v. Mooc (2001)

                                             26
26 Cal.4th 1216, 1229-1230.) Here, the trial court described the documents it reviewed
and made an adequate record. Based upon our review of the record, we conclude the trial
court’s orders concerning the disclosure of Pitchess materials were correct. Gomez’s
motion to augment is denied.
                                    DISPOSITION
             Gomez’s motion to augment is denied. The judgment is affirmed.




                                                O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



THOMPSON, J.




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