People v. Valencia
| Decision Date | 01 July 2021 |
| Docket Number | S250218, S250670 |
| Citation | 489 P.3d 700,280 Cal.Rptr.3d 581,11 Cal.5th 818 |
| Court | California Supreme Court |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jose Luis VALENCIA , Defendant and Appellant. The People, Plaintiff and Respondent, v. Edgar Isidro Garcia, Defendant and Appellant. |
Elizabeth J. Smutz, under appointment by the Supreme Court, Sacramento, Michael B. McPartland, under appointment by the Court of Appeal, Indian Wells, for Defendant and Appellant Edgar Isidro Garcia.
Hilda Scheib, under appointment by the Supreme Court, for Defendant and Appellant Jose Luis Valencia.
Mary K. McComb, State Public Defender, Hassan Gorguinpour, Deputy State Public Defender, for Office of the State Public Defender as Amicus Curiae on behalf of Defendants and Appellants.
Kamala D. Harris and Xavier Becerra, Attorneys General, Matthew Rodriquez, Acting Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Kathleen A. McKenna, Rebecca Whitfield, Daniel B. Bernstein, Rachelle A. Newcomb and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent in No. S250670.
Xavier Becerra, Attorney General, Matthew Rodriquez, Acting Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Daniel B. Bernstein, Rachelle A. Newcomb, Amanda D. Cary, Lewis A. Martinez and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent in No. S250218.
This case involves allegations of active gang participation ( Pen. Code, § 186.22, subd. (a) ) and gang enhancements ( Pen. Code, § 186.22, subd. (b) ) attached to other offenses. The charges require proof that a gang's members have engaged in "a pattern of criminal gang activity" ( Pen. Code, § 186.22, subd. (f) ), defined, in part, as the commission of two or more enumerated offenses ( Pen. Code, § 186.22, subd. (e) ). We hold that the commission of such crimes, also known as predicate offenses, must be proven by independently admissible evidence. Under the authority of People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ), such proof may not be established solely by the testimony of an expert who has no personal knowledge of facts otherwise necessary to satisfy the prosecution's burden. The judgment of the Court of Appeal, reaching the same conclusion, is affirmed.
Early on the morning of August 24, 2014, Jose B. and Alejandro P. sat on the tailgate of a truck at a carwash in the City of Arvin. Multiple shots were fired. One round struck Jose in the leg and others hit the truck tires. Coincidentally, an officer on patrol near the carwash happened to see a pickup driving slowly with its lights off, then saw seven to 10 muzzle flashes coming from the front passenger window. Shining a light on the pickup, the officer saw defendant Jose Luis Valencia behind the wheel and defendant Edgar Isidro Garcia in the passenger seat. An hour-long vehicle chase ensued, during which Garcia threw something from the truck's window. The cylinder of a revolver was later recovered in that vicinity. Defendants were ultimately arrested, and gunshot residue was found on the front passenger door of the pickup.
Both defendants were charged with two counts of attempted murder, assault with a firearm, and active street gang participation.1 Garcia was also charged with shooting from a vehicle.2 Valencia was charged with evading an officer and knowingly allowing a passenger to shoot from the truck.3 Gang and firearm enhancements were attached to the various charges.4
Arvin Police Officer Ryan Calderon testified as a gang expert. A nine-year department veteran, he had specialized in gang enforcement for five and a half years and had personally investigated about 200 crimes involving the Arvina 13 gang. Calderon testified about the gang, describing its monikers, graffiti, tattoos, colors, and territory, which included the carwash. Arvina 13's primary felonious activities include shootings, assaults, burglaries, and drug sales.
In Officer Calderon's opinion, Valencia and Garcia were Arvina 13 gang members, based on their tattoos and police contacts.
In response to a hypothetical question, Calderon testified that defendants’ conduct benefitted Arvina 13 by creating community fear and gang notoriety. Calderon also related the facts of three predicate offenses committed by Arvina 13 gang members: a 2008 assault by Jose Arredondo, a 2010 assault by Adam Arellano, and a 2013 attempted robbery and assault by Orion Jimenez. Calderon's only knowledge of these offenses came from conversations with other officers and a review of police reports. Certified copies of court documents related to the convictions in each case were admitted into evidence, including the pleadings and court minute orders.
Defendants’ first trial ended when the jury hung on almost all charges.5 A second jury convicted defendants of the remaining allegations. Both men were sentenced to extended prison terms.6 The Court of Appeal held that some of the expert's testimony about the predicate offenses constituted inadmissible hearsay. It reversed the active gang participation and enhancement allegations, as well as Valencia's firearm enhancements attached to those allegations, and otherwise affirmed the judgments. (People v. Valencia (July 10, 2018, F072943) [nonpub. opn.]; People v. Garcia (July 10, 2018, F073515) [nonpub. opn.].)7 We granted the Attorney General's petitions for review and consolidated these two cases for decision.8
The Attorney General argues the gang expert's recitation of hearsay describing the circumstances of the three predicate offenses constituted background information about which the expert could properly testify. To resolve this issue, we examine the statutory scheme covering gang allegations, our decisions in Sanchez and People v. Veamatahau (2020) 9 Cal.5th 16, 259 Cal.Rptr.3d 205, 459 P.3d 10 ( Veamatahau ), and Court of Appeal decisions that have previously addressed the question.
In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act () to eradicate "criminal activity by street gangs." ( People v. Loeun (1997) 17 Cal.4th 1, 4, 69 Cal.Rptr.2d 776, 947 P.2d 1313 ( Loeun ).)
Underlying the STEP Act was the Legislature's finding that "California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." ( Pen. Code, § 186.21, 2d par.) The Legislature sought to balance the "constitutionally protected rights of freedom of expression and association" (id. , 1st par.) with the need to protect all Californians from the burden of fear, intimidation and physical harm caused by gang violence, which it found presents "a clear and present danger to public order and safety" (id. , 1st par.). The Act was specifically structured to protect both free association and public safety. (See People v. Rodriguez (2012) 55 Cal.4th 1125, 1133–1135, 150 Cal.Rptr.3d 533, 290 P.3d 1143 (lead opn. of Corrigan, J.) ( Rodriguez ).)
As relevant here, the STEP Act created a substantive offense of active participation "in any criminal street gang" ( Pen. Code, § 186.22, subd. (a) ), and a sentencing enhancement for a felony committed "for the benefit of, at the direction of, or in association with any criminal street gang" ( Pen. Code, § 186.22, subd. (b)(1) ). (See Rodriguez, supra, 55 Cal.4th at p. 1130, 150 Cal.Rptr.3d 533, 290 P.3d 1143 (lead opn. of Corrigan, J.); see also id . at p. 1130, fn. 5, 150 Cal.Rptr.3d 533, 290 P.3d 1143 (lead opn. of Corrigan, J.).) The Act defines such a gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [enumerated offenses], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." ( Pen. Code, § 186.22, subd. (f).) A " ‘pattern of criminal gang activity’ " is separately defined as "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more [enumerated] offenses, provided at least one of these offenses occurred after the effective date of this [Act] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons ...." ( Pen. Code, § 186.22, subd. (e).)9 The offenses comprising a pattern of criminal gang activity are referred to as predicate offenses. (See Loeun, supra, 17 Cal.4th at p. 4, 69 Cal.Rptr.2d 776, 947 P.2d 1313.) We use the term "commission" in this opinion to include the broader statutory inclusion of the "attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction" of a predicate offense. ( Pen. Code, § 186.22, subd. (e).)
Penal Code section 186.22, subdivision (e) does not state that a predicate offense must be committed by a gang member. However, that requirement derives from the definition of a " ‘criminal street gang,’ " which includes proof that the gang's "members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." ( Pen. Code, § 186.22, subd. (f), italics added.) It follows, then, that the proof of a predicate offense must establish that a member of a defendant's alleged gang was involved in its commission.10 Taken together the statutory scheme requires proof that gang members committed at least two predicate offenses within the...
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