People v. Archuleta

• Decision Date: 29 December 2011
• Docket Number: No. E049095.,E049095.
• Citation: 202 Cal.App.4th 493,2011 Daily Journal D.A.R. 18637,134 Cal.Rptr.3d 727,12 Cal. Daily Op. Serv. 177
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent,v.Fred Edward ARCHULETA, Defendant and Appellant.

202 Cal.App.4th 493

134 Cal.Rptr.3d 727

12 Cal. Daily Op. Serv. 177

2011 Daily Journal D.A.R. 18,637

The PEOPLE, Plaintiff and Respondent,

v.Fred Edward ARCHULETA, Defendant and Appellant.

No. E049095.

Court of Appeal, Fourth District, Division 2, California.

Dec. 29, 2011.Certified for Partial Publication.*

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, Assistant Attorney General, and Peter Quon, Jr. and Angela Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

KING, J.

I. INTRODUCTION

A jury found defendant Fred Edward Archuleta guilty as charged of possessing a controlled substance, methamphetamine (Health & Saf.Code, § 11377, subd. (a); count 1) and active gang participation (Pen.Code, § 186.22, subd. (a); ¹ count 2). Defendant was sentenced to 40 years to life ² and appeals, raising several claims of error concerning his active gang participation conviction.

In the published portion of this opinion, we address defendant's claim that the admission of an out-of-court testimonial statement that defendant directed a gang-related robbery violated his Sixth Amendment confrontation rights under Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( Crawford ). The statement was admitted solely as basis evidence to support the opinion of the prosecution's gang expert that defendant was an active, high-ranking gang member when he committed the charged crimes, and not, purportedly, as substantive evidence or independent proof that defendant was an active, high-ranking gang member. Based on current case law, we conclude that the admission of the statement did not violate defendant's confrontation rights. ( Id. at p. 59, fn. 9, 124 S.Ct. 1354; People v. Hill (2011) 191 Cal.App.4th 1104, 1129–1131, 120 Cal.Rptr.3d 251 ( Hill ); People v. Thomas (2005) 130 Cal.App.4th 1202, 1209–1210, 30 Cal.Rptr.3d 582 [Fourth Dist., Div. Two] ( Thomas ).)

Nevertheless, we address whether the testimonial hearsay statement that defendant directed a gang-related robbery should have been limited or excluded as basis evidence under state evidentiary law, namely, Evidence Code section 352. We conclude, and at oral argument the People agreed, that testimonial hearsay statements, when offered as expert opinion basis evidence, should be analyzed under Evidence Code section 352 and limited or excluded to the extent necessary to prevent undue prejudice to the criminal defendant or other adverse party, whether in criminal or civil trials. (See, e.g., People v. Coleman (1985) 38 Cal.3d 69, 91–93, 211 Cal.Rptr. 102, 695 P.2d 189 ( Coleman ); Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 788–789, 174 Cal.Rptr. 348 [Fourth Dist., Div. Two].)

As we explain, the admission of testimonial hearsay statements as basis evidence presents a particular risk of undue prejudice to the adverse party under Evidence Code section 352. By definition, testimonial statements are given and taken “ primarily for the purpose ” of establishing “some past fact for possible use in a criminal trial” and “under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony.” ( People v. Cage (2007) 40 Cal.4th 965, 984, 56 Cal.Rptr.3d 789, 155 P.3d 205, fn. omitted.) Testimonial statements are thus factually assertive statements which are difficult if not impossible to disregard for their truth. (See Hill, supra, 191 Cal.App.4th at pp. 1129–1131, 120 Cal.Rptr.3d 251.) Testimonial statements are also of suspect reliability, particularly when the adverse party has not had an opportunity to cross-examine the declarant concerning the statement. (See Crawford, supra, 541 U.S. at pp. 61–62, 124 S.Ct. 1354.)

We ultimately conclude, however, that the admission of Perez's statement as basis evidence was harmless under state law even if the jury considered it for its truth, because it is not reasonably probable it affected the verdicts in light of the record as a whole, including other evidence that defendant was an active, high-ranking gang member when he committed the charged crimes. ( People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) In the nonpublished portions of this opinion, we find defendant's other claims of error without merit. Accordingly, we affirm the judgment in all respects.

II. FACTS AND PROCEDURAL HISTORY

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 suspected bags of methamphetamine found on defendant and Ramirez, together with the third suspected 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 suspected bags of 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 some time 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” or the gang member's admission of his gang membership during a booking interview; (3) gang tattoos; (4) gang signs; (5) gang apparel; (6) “reliable source,” for example, a confidential informant identifying the person as a gang member; (7) prison documentation; and (8) intercepting mail in a custodial facility with gang-related writing. At least two criteria were required to document a person as a gang member, with the exception of “classification admit” which was alone sufficient.

Not all gang members wear “gang specific” tattoos identifying their gang. The deputy had encountered persons who had been gang members for decades but who did not have tattoos identifying their “higher status” in the gang. It had recently become common for gang members not to get gang-related tattoos in order to prevent law enforcement officers from easily identifying them as gang members. The deputy kept currently informed on gangs and their activities through speaking with other investigators, professional associations, and “validation packets” prepared by the California Department of Corrections and Rehabilitation (CDCR) which documented persons as gang members.

Through his work at the Victorville station, Deputy Conley was familiar with a criminal street gang known as “East Side Victoria.” The gang had approximately 150...