People v. Ochoa

• Decision Date: 13 January 2017
• Docket Number: A137763
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose Antonio OCHOA, Defendant and Appellant.

7 Cal.App.5th 575

212 Cal.Rptr.3d 703

The PEOPLE, Plaintiff and Respondent,

v.Jose Antonio OCHOA, Defendant and Appellant.

A137763

Court of Appeal, First District, Division 5, California.

Filed January 13, 2017

Certified for Partial Publication.^*

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon and Frances Marie Dogan, Deputy Attorneys General, for Plaintiff and Respondent.

SIMONS, J.

Defendant Jose Antonio Ochoa (defendant) appeals from the judgment following his conviction for various offenses, including threatening public officers. We affirmed the judgment in an opinion filed March 25, 2015, and the California Supreme Court granted review and deferred further action pending disposition of a related issue in People v. Sanchez , S216681. On June 30, 2016, the Court filed its decision in that case (see People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 (Sanchez )) and the Court transferred the present case back to this court for reconsideration in light of the Sanchez decision. (See Cal. Rules of Court, Rule 8.528(d).) Having analyzed the testimony of the gang expert introduced by the prosecution under both the confrontation clause of the United States Constitution and California's hearsay rule, we find no prejudicial error and again affirm.

PROCEDURAL BACKGROUND

On June 22, 2012, the Grand Jury of the County of Contra Costa returned an indictment accusing defendant of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a) ;¹ count one), during which nonparticipants in the robbery were present (§ 667.5, subd. (c)(21)); attempted first degree robbery (§§ 211, 212.5, subd. (a), 664; count two); threatening public officers and employees (§ 71; count three); and resisting an executive officer (§ 69; counts four and five). As to counts three to five, the indictment alleged the offenses were committed for the benefit of criminal street gangs, specifically the Sureños and the South Side Locos (SSL) (§ 186.22, subd. (b)(1)). The indictment also alleged defendant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)).

In December 2012, a jury found defendant guilty on counts one, two, three, and five. The jury found true the enhancements to counts one and three. The jury did not reach a verdict on count four or the enhancement to count five; that count and enhancement were dismissed on the prosecution's motion. The trial court found true the prior conviction allegations.

In January 2013, the trial court sentenced defendant to state prison for a total term of 11 years and four months. This appeal followed.

As noted previously, we affirmed the judgment and the California Supreme Court granted review and deferred further action in the case. On September 21, 2016, the Court transferred the present case back to this court for reconsideration in light of the Sanchez decision. (Sanchez , supra , 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320.) No party filed the supplemental brief permitted under Rule 8.200(b).

FACTUAL BACKGROUND

In May 2012, Raul Moreno Chavez (Moreno) and Antonio Sandoval Navarro (Sandoval) (jointly, victims) lived in an apartment on Detroit Avenue in Concord. The victims, through Spanish interpreters, testified that defendant and two other people loudly knocked on their apartment door in the early morning hours on May 19. Moreno opened the door; Sandoval called the police. Sandoval heard the men, speaking in English, say they had a knife or pistol. Moreno exited the apartment and two of the men, one of whom was defendant, entered the apartment and said the victims would be killed if they did not give the assailants what they wanted. Defendant took Sandoval's cell phone and wallet, and then threw both on the floor. Subsequently, the men went outside, where defendant was detained after Sandoval identified him to the police.²

At around 3 a.m. on May 19, 2012, Concord Police Officers Carl Cruz and David Greenfield responded to the area of the victims' apartment. Officer Cruz encountered defendant in the apartment complex's central "quad." The officer asked to speak to defendant, and defendant responded with verbal aggression. Officer Cruz noticed Sandoval coming down stairs nearby, and he went to speak with Sandoval while Officer Greenfield stayed with defendant.³ Sandoval identified defendant as the man who had entered his apartment.

Officer Greenfield tried to calm defendant down. The officer got defendant to sit down, but he remained belligerent. He told Officer Greenfield, "Fuck you. You know who you're fucking with? I'm a validated Sureño. I run this County." Defendant also told the officer, "I'll fuck you up." While this was happening, Officer Cruz was speaking to Sandoval within earshot, and defendant was also yelling over his shoulder to them in Spanish.

Subsequently, a struggle ensued when defendant attempted to stand up: Officer Greenfield pushed him back down, defendant shoved the officer, and the officer struggled to restrain defendant. Officer Cruz offered his assistance, and they managed to handcuff defendant after Officer Greenfield applied a "carotid control hold," which caused defendant to lose consciousness for about five seconds. Defendant was still aggressive when he regained consciousness, yelling and "kicking and flailing around." Because the hold was employed, the officers summoned medical assistance, per departmental policy. Defendant was taken to the hospital in an ambulance.

At the hospital, Officer Greenfield joined Officer Cruz, who was already with defendant. Defendant spoke to Officer Cruz in a threatening manner and referred to his ties to La Eme (also known as the Mexican Mafia), a prison gang. Officer Cruz knew defendant was a Sureño affiliated with the local SSL gang. Defendant told Officer Greenfield, "If you weren't such a pussy and had to jump me, I would have fucked you up. I can't wait to see you again when you're off-duty. I'll get you. You ain't shit without your badge and gun."

The prosecution presented testimony from another Concord police officer who had contact with defendant in 2010. Defendant was photographed, and he asked if he could "represent" during the photographs; when he was told he could, he "flashed common SSL gang ... signs." Another officer testified he had contact with defendant in 2011 and defendant identified himself as an "SSL Sureño." Yet another officer testified having contact with defendant in February 2012; he was in the company of at least one other SSL gang member and was wearing blue clothing (which is associated with the Sureños).

The prosecution's gang expert, Corporal Michael Kindorf, testified regarding the history and activities of La Eme, the Sureños, and the SSL. They are all affiliated gangs, with La Eme occupying "Tier I," the Sureños "Tier II," and the SSL "Tier III." At the time of the present offenses, the SSL claimed as its territory "the southern district of the three policing districts" in Concord, which is where the present offenses occurred. Kindorf testified that defendant has numerous tattoos that demonstrate his affiliation with the Sureños and the SSL. Kindorf also identified various specific people as members of the SSL. Finally, Kindorf was presented with hypotheticals that mirrored the circumstances of the incident shown at trial, and he explained how the hypothesized conduct would benefit a gang.

DISCUSSION

I. There Was No Prejudicial Error Under the Confrontation Clause or Under State Hearsay Law in The Admission of Gang Expert Testimony

Defendant contends the testimony of the prosecution's gang expert, Corporal Kindorf, violated his confrontation rights under the Sixth Amendment to the United States Constitution. In particular, he argues the expert relied on testimonial hearsay to support the prosecution's showing that SSL members engaged in a "pattern of criminal gang activity," as required to sustain the gang enhancement to count three. (§ 186.22, subds. (b), (e), & (f).)⁴ Additionally, in light of the decision in Sanchez , supra , 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320, we consider whether admission of aspects of the gang expert's testimony violated state hearsay law.

A. Background

"Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity." (People v. Duran (2002) 97 Cal.App.4th 1448, 1457, 119 Cal.Rptr.2d 272 (Duran ).) "A ‘pattern of criminal gang activity’ is defined as gang members' individual or collective ‘commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more’ enumerated ‘predicate offenses' during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.] The charged crime may serve as a predicate offense [citations], as can ‘evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member.’ " (Ibid. )⁵ The prosecution need not prove, however, that the predicate offenses used to establish a pattern of criminal activity were gang-related. (People v. Gardeley (1996) 14 Cal.4th 605, 621–622...