People v. Archuleta

• Decision Date: 11 April 2014
• Docket Number: E049095.
• Citation: 225 Cal.App.4th 527
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FRED EDWARD ARCHULETA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

225 Cal.App.4th 527

THE PEOPLE, Plaintiff and Respondent,

v.FRED EDWARD ARCHULETA, Defendant and Appellant.

No. E049095.

Court of Appeals of California, Fourth District, Division Two.

April 11, 2014.

Lizabeth Weis , under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr. , and Kamala D. Harris , Attorneys General, Dane R. Gillette , Chief Assistant Attorney General, Gary W. Schons and Julie L. Garland , Assistant Attorneys General, Peter Quon, Jr. , Angela Borzachillo and Lynne G. McGinnis , Deputy Attorneys General, for Plaintiff and Respondent.

[CERTIFIED FOR PARTIAL PUBLICATION^*]

OPINION

KING, J. —

A jury found defendant Fred Edward Archuleta guilty as charged of possessing a controlled substance, methamphetamine, and active gang participation. (Health & Saf. Code, § 11377, subd. (a); Pen. Code, § 186.22, subd. (a).)¹ Defendant was arrested on December 5, 2008, after law enforcement officers found him in his garage in possession of methamphetamine and in the company of a gang member who admitted he was selling methamphetamine. At trial, the prosecution's gang expert testified defendant was a high-ranking member of and an active participant in the East Side Victoria (ESV) criminal street gang at the time of his arrest, and had been for a long time. The expert based his opinion in part on the testimonial hearsay statement of another ESV gang member, Fernando Perez. According to the expert, Perez "told investigators" that defendant directed the November 2008 robbery of a Victorville drug dealer by Perez and other ESV gang members. Perez apparently made the statement during a custodial police interrogation following his arrest for the November 2008 robbery and the provocative act murder of an ESV gang member who was shot and killed during the robbery. Defendant was not charged with the robbery or the murder.

In a 2011 decision in this case (Archuleta I), we rejected defendant's claim that the admission of Perez's testimonial hearsay statement as basis evidence to support the gang expert's opinion violated defendant's Sixth Amendment confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford). We followed a series of decisions by this and other appellate courts that the admission of out-of-court hearsay statements as basis evidence to support an expert's opinion against a criminal defendant at trial does not violate the confrontation clause because the statements are not offered for their truth; they are offered for the distinct and permissible purpose of supporting the expert's opinion. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210 [Fourth Dist Div. Two] (Thomas); People v. Cooper (2007) 148 Cal.App.4th 731, 746-747 (Cooper); People v. Ramirez (2007) 153 Cal.App.4th 1422, 1426-1427 (Ramirez); People v. Sisneros (2009) 174 Cal.App.4th 142, 153-154 (Sisneros).)

Defendant petitioned the state Supreme Court for review of Archuleta I, review was granted and deferred, and the matter was transferred to this court with directions to vacate our decision in Archuleta I and reconsider the cause in light of Williams v. Illinois (2012) 567 U.S. ___ [183 L.Ed.2d 89, 132 S.Ct. 2221] (Williams), People v. Lopez (2012) 55 Cal.4th 569 [147 Cal.Rptr.3d 559, 286 P.3d 469] (Lopez), People v. Dungo (2012) 55 Cal.4th 608 [147 Cal.Rptr.3d 527, 286 P.3d 442] (Dungo), and People v. Rutterschmidt (2012) 55 Cal.4th 650 [147 Cal.Rptr.3d 518, 286 P.3d 435] (Rutterschmidt). (Cal. Rules of Court, rules 8.512(d)(2), 8.528(d).) Nothing in any of these decisions affects our conclusion in Archuleta I that Perez's out-of-court statement that defendant directed the November 2008 robbery — made to investigators during a custodial interrogation — was testimonial "under any conceivable definition." (Crawford, supra, 541 U.S. at pp. 51-52, 53, fn. 4.)

But five of the nine United States Supreme Court justices in Williams and six of the seven state Supreme Court justices in Dungo agreed that out-of-court testimonial statements — even when offered solely as basis evidence to support an expert's opinion and not, purportedly, as substantive evidence of their truth — may nonetheless be offered for their truth and violate the confrontation clause. (Williams, supra, 567 U.S. at pp. ___ - ___ (conc. opn. of Thomas, J.); id. at pp. ___ - ___ (dis. opn. of Kagan, J., joined by Scalia, Ginsburg, and Sotomayor, JJ.); Dungo, supra, 55 Cal.4th at pp. 621-627 (conc. opn. of Werdegar, J., joined by Cantil-Sakauye, C. J., Baxter, and Chin, JJ.); Dungo, at pp. 633-649 (dis. opn. of Corrigan, J., joined by Liu, J.).) We believe that if either high court were to consider defendant's confrontation claim today, a majority of the justices of each court would agree that Perez's statement was effectively offered for its truth through the testimony of the gang expert and violated defendant's Sixth Amendment right to confront and cross-examine Perez. The prosecution did not show that Perez was unavailable or that defendant had a prior opportunity to cross-examine him. (Crawford, supra, 541 U.S. at p. 59.) We therefore conclude that the use or admission of the statement violated Crawford.

As we further explain, however, the federal constitutional error was harmless beyond a reasonable doubt. The use of Perez's testimonial hearsay statement for its truth, as basis evidence to support the gang expert's opinion, could not have affected the verdict on the methamphetamine possession or the active gang participation charge. In the nonpublished portion of this opinion, we explain why defendant's other claims of error are without merit. We therefore affirm the judgment in its entirety.

I. FACTUAL BACKGROUND

A. The Circumstances of the Charged Offenses

Around 1:00 a.m. on December 5, 2008, San Bernardino County Sheriff's Deputy Brian Roper and several other officers, including Detective Garth Goodell, a member of the department's high desert regional gang team, went to defendant's residence in Victorville looking for George Espinosa, a homicide suspect known as "Little Sleepy." Around one week earlier, Deputy Roper received information from Natividad Ramirez that Espinosa could be at defendant's residence.

After the deputies arrived at defendant's residence, Detective Goodell stood next to the garage while Deputy Roper and another detective went to the front door. The garage door opened, and defendant and Ramirez were in the garage. Defendant was using a cellular telephone, and Ramirez dropped a bag of suspected methamphetamine on the garage floor. Espinosa was not found at the residence.

Deputy Roper searched Ramirez and found a plastic scale and a bag of suspected methamphetamine in his pockets. Detective Goodell searched defendant and found $100 cash in his left pants pocket and a bag of suspected methamphetamine wrapped around his right belt loop and tucked into his coin pocket. A vehicle parked in front of the residence had recently been reported stolen.

Detective Goodell collected the $100 cash, cellular telephone, plastic scale, and the two bags of suspected methamphetamine found on defendant and Ramirez, together with the third bag Ramirez dropped. The detective also found a fourth "empty" bag on the garage floor that appeared to contain methamphetamine residue, but he did not believe it had any evidentiary value and threw it away. Defendant was placed under arrest, but Ramirez was allowed to leave.

The three bags of suspected methamphetamine were later tested and determined to contain 2.92, 0.40, and 0.27 grams, respectively, of methamphetamine. Apparently, the bag containing the smallest amount of methamphetamine was the bag found on defendant.

Ramirez and defendant were originally charged in the same two-count information with simple possession of methamphetamine and active gang participation. During jury selection at their joint trial, Ramirez pled guilty to both charges and admitted a prior strike conviction and four prison priors. He was later sentenced to five years four months in prison.

B. Expert Gang Testimony

San Bernardino County Sheriff's Deputy Josh Conley testified as a gang expert for the prosecution. At the time of trial in May 2009, Deputy Conley had been a deputy sheriff for over seven years, first in Los Angeles County and later in San Bernardino County. He was trained in gang investigations and identifications, and had attended two "jail operations courses," which included additional instruction in gang "investigation, trends, identification...." He later attended an "advanced gang awareness course" and received "more informal" training in gang investigation, identification, tattoos, trends, activity, and prosecution while working in the West Valley Detention Center (the WVDC) in Rancho Cucamonga.

Deputy Conley had experienced many personal contacts with gang members while working in jails in Los Angeles and San Bernardino Counties. Before July 2005, he worked in the WVDC's high security unit, which housed the "most violent and most reputed" gang members in San Bernardino County. He recalled that defendant was housed in the WVDC's high security unit sometime before July 2005 when the deputy was working in the WVDC.

In July 2005, Deputy Conley was assigned to the Victorville sheriff's station. After completing a field training program and working on patrol for two years, he was assigned to the station's gang enforcement detail. In that capacity, he performed parole compliance checks and contacted parole agents and gang members at parole offices. During the course of his seven-year career, he had spoken with over 1,000 gang members and had documented over 300 gang members.

Eight criteria were used to "document" or identify a person as a gang member on a gang identification card: (1) the gang member's "self-admission"; (2) "classification admit" (the gang member's admission of his gang membership during a booking interview); (3) gang tattoos; (4)...