People v. Polk CA3

Filed 8/31/20 P. v. Polk CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C080915

Plaintiff and Respondent, (Super. Ct. No. 15F01842)

v.

ERNEST JAMAL POLK,

Defendant and Appellant.

Two Sacramento County Sheriff’s Department Gang Unit detectives encountered
defendant, a validated member of the East Side Piru criminal street gang, and a woman
standing in front of a house in Rancho Cordova at night. Defendant had a loaded
handgun in his possession and was subsequently found to have three baggies, two
containing methamphetamine and one containing heroin. A jury found defendant guilty

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of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)),1 unlawful
possession of heroin for sale (Health & Saf. Code, § 11351), unlawful possession of
heroin and methamphetamine while armed with a loaded, operable firearm (Health & Saf.
Code, § 11370.1, subd. (a)), and possession of methamphetamine for sale (Health & Saf.
Code, § 11378). The jury further found gang enhancement allegations (§ 186.22, subd.
(b)(1)) to be true in connection with each count. Defendant was sentenced to an
aggregate term of seven years eight months.
On appeal, defendant asserts: (1) the evidence was legally insufficient to support
the gang enhancement allegation findings; (2) the trial court violated his Sixth
Amendment confrontation clause rights in admitting certain testimony by the
prosecution’s gang expert; (3) the admission of marginally relevant and highly
inflammatory gang evidence constituted “overkill” and violated his right to due process
and a fair trial; (4) the trial court erred in failing to instruct the jury, sua sponte, with
CALCRIM No. 1403 concerning the limited purpose of gang evidence, and, if the court
had no sua sponte duty, defense counsel was constitutionally ineffective for failing to
request that instruction; and (5) cumulative error deprived him of a fair trial. Defendant
also requests that we review in camera hearing minutes to determine whether the trial
court abused its discretion in concluding that a gang detective validly claimed the
privilege under Evidence Code sections 1040 and 1042.
We affirm.

1 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.

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 FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence
Defendant’s Arrest
On March 24, 2015, at approximately 8:15 p.m., Detectives Kenny Shelton and
Glen Barawed of the Sacramento County Sheriff’s Department Gang Unit were in a
known gang neighborhood in Rancho Cordova when they observed two people standing
in front of a house. The house’s porch light was off, and Barawed found it “unusual to
see two people standing in front of a dark house.” The detectives illuminated the area.
Defendant was one of the people standing in front of the house, and the other person was
a woman. Both Shelton and Barawed had numerous previous contacts with defendant.
Barawed had previously validated defendant as a member of the East Side Pirus gang. In
2013, defendant told Barawed that he was an East Side Pirus member.
Barawed got out of the patrol vehicle, called defendant by his street name, PJ, and
told defendant to come over to him. Defendant turned away and reached towards the
waistband of his pants. The detectives both feared defendant might be armed, and they
pointed their firearms at defendant and told him to get on the ground. Defendant did not
immediately comply and Shelton called for backup. Eventually, defendant lay down on
the ground. Barawed saw a black and silver handgun in defendant’s right hand.
Defendant “thrusted his right hand forward and kind of pushed the gun away from him”
and underneath a brick planter. Barawed handcuffed defendant and lifted him off the
ground, revealing a torn plastic baggie on the ground where defendant had been. Shelton
recognized it as “a little piece of cellophane wrapping underneath where his body was,
what we call a tear-off, which is indicative of narcotic sales.” Law enforcement also
recovered the handgun, a loaded Ruger nine-millimeter semiautomatic with a round in
the chamber.
Detective Ralph Garcia searched the area and found a cell phone on a walkway
next to where defendant had been detained. When he picked up the phone, he observed

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that the screen was prompting the user to confirm or cancel a full factory reset of the
phone. Garcia canceled the factory reset.
As the detectives moved defendant to a vehicle, Shelton observed that defendant
was wearing two memorial wristbands commonly worn by East Side Pirus gang
members. The wristbands commemorated fellow gang members who had been the
victims of a triple homicide in 2011.
Search of Defendant’s Home
Following defendant’s arrest, Shelton went to defendant’s house where he
participated in a search. As law enforcement approached the house, they saw two
validated East Side Pirus members outside along with the woman who had been with
defendant when he was arrested no more than 30 minutes earlier. Inside defendant’s
house, Shelton found a Sacramento River Cats baseball cap of a type commonly worn by
East Side Pirus because, to them, the “R” and “C” represent Rancho Cordova, and
because red, the color of the writing, is a color commonly claimed by the gang. “Bolo”
was written on the side of the hat, representing the Bolo block, “another East Side Piru
set over in the Coloma Road corridor.” “Rest in Peace, Lil’ Bubba” was printed on the
back of the hat, referring to one of the three 2011 homicide victims commemorated on
the wristbands.
Evidence of Possession of Controlled Substances for Sale
When Barawed brought defendant to the jail, Barawed told custodial officers to
have defendant strip-searched. Deputy Greg Ma was present during the search and
testified that “there was a couple baggies of narcotics that were located on [defendant’s]
person.” One small baggie containing 0.2 grams of methamphetamine was found in
defendant’s sock and another baggie containing 12 and a half grams of methamphetamine
was found in defendant’s underwear. Another baggie containing five and a half grams of
heroin was also found in defendant’s underwear.

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 Detective Darryl Meadows testified as an expert in the sale of methamphetamine
and heroin. Meadows testified that 11.5 grams of methamphetamine would constitute
approximately 115 doses and .2 grams would constitute approximately two and a half
doses. Meadows testified that 4.85 grams of heroin would constitute 48 and a half
doses.2
Meadows also discussed several text messages downloaded from the cell phone
recovered from the arrest site. One text message read: “Awesome. I’m going to need
that .2 .3 for me, then a 15 for a co-worker. So like . . . .4 .5 altogether. And I owe you
20 tomorrow. Cool.” Meadows testified that these amounts referred to amounts in
grams, and that the reference to “owe you 20 tomorrow” referred to a “front where you
give them the narcotic controlled substance, and then at some point later on, they
basically pay you for it.” Meadows testified that another of the text messages also
discussed obtaining some narcotic with the agreement that the supplier would be paid
later. Another text message read, “I got a knock from Placerville who is on his way to
work. Wants 80 dollars worth of white, and I don’t got it. Want to make 80 dollars,
answer your phone.”3 Another text message read: “I need some Crys, and I got some
stupid boy who has been up for five days, being unbelievably disrespectful, and I need
you, please.”4

2 The parties stipulated that a criminalist at the Sacramento County Crime Lab analyzed
three items in a controlled substance envelope. Item 001-GB-2 contained 11.5 grams of
methamphetamine. Item 001-GB-3 contained .25 grams of methamphetamine. Item 001-
GB-4 contained 4.85 grams of heroin.
3 Meadows testified that a “knock” is a street term for “somebody is basically going to
call or come by, and they want to purchase a narcotic.” He testified that “white” could
refer to cocaine or methamphetamine.
4 Meadows testified that “Crys” referred to crystal methamphetamine.

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 The prosecutor asked Meadows a hypothetical question about an individual
discovered in possession of a loaded firearm and a baggie with the corners torn off, who
was ultimately found to be in possession of baggies matching those found on defendant,
and who had text messages on his phone like those discovered on the phone found near
defendant. Meadows testified that, in his opinion, the individual would be possessing the
narcotics for the purpose of sales rather than personal use. Meadows’s opinion was
“[b]ased on the overall circumstance and the sheer amount of the narcotics.”
Jail Cell Search Evidence
Deputy Joshua Langensiepen worked at the Rio Cosumnes Correction Center
(RCCC). On October 7, 2015, he searched the cell shared by defendant and John
Sanford. Langensiepen found a number of gang related items in the search. In
defendant’s property box, Langensiepen found, among other things, shower shoes with
the number 21 on one shoe and 00 on the other. He also found a birthday card which
said: “happy B day, and then underneath the cake, finished with Piru, and then located
on the cake itself, it’s going to have candles 2100,” and on the other side said “big
hommie PJ” from AG.
Shelton, who testified as an expert in African-American gangs, specifically East
Side Pirus, testified that “2100” on the shower shoes and the birthday card was a
reference to West La Loma, a subset of the East Side Pirus. The “jail made birthday
card” indicated that its recipient was an East Side Piru from West La Loma.
Jail Phone Conversations
The prosecutor played a number of recorded jail phone call conversations for the
jury. In a conversation on April 21, 2015, defendant stated, “I’m top dog on the yard.
I’m head honcho around (unintelligible).” Shelton testified that someone making such a
statement was saying “that they are the one running the housing area that they are at, or
that they are an influential person in that particular housing area.”

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 In a phone conversation on April 22, 2015, defendant stated, “in here I be bullying
people ‘cause I have to.” Defendant stated, “they can’t fuck with me. They can’t fuck
with me in here.” Asked if he was only with people from “West Block,” defendant
stated, “No. Me and my brothers from West La Loma, and we don’t fuck with nobody
else in here. We just be talking shit.” He continued, “we got two Oak Park homies. And
we just fuck with them two. So it’s really like four of us, you know what I mean, in the
pack and that’s it. We be cussing everybody out, talking all this shit.” Defendant stated,
“it’s approximately 150 guys, so between the 4 of us and 150 guys, we go hella hard.”
He also stated, “I be sending crash dummies to the phone too when I get bored.” Shelton
testified that crash dummies is a street term for “a very low level individual,” a “peon or a
pawn,” “[s]omeone who is expendable, trying to make their way up. Somebody they can
manipulate.”
In a conversation on April 25, 2015, defendant and an identified male discussed a
particular individual, referring to him as deceitful and a liar. Defendant asked, “[h]e not
programming, right, bro?” Defendant stated that “he trying to double-dutch,” and further
stated, “I’mma beat that nigga up though when I come home,” and “I’m, I’m for sure
beating that nigga up.” According to Shelton, the individual they were discussing was a
validated East Side Piru. Shelton testified that if someone was referred to as not
programming right, that “means they are not representing the gang the way they are
supposed to be. They are -- basically, they are losing respect . . . .” Shelton further
testified that someone who is not “programming right” can be assaulted or “removed.” In
the same phone conversation, defendant told the person with whom he was speaking to
“put like uh, maybe some more money on the horn for us, (unintelligible).”
In a phone conversation on April 26, 2015, defendant told an unidentified female,
“I feel like my whole empire is crumbling.” The unidentified female responded, “No,
well, it is because you’ve built it on some faulty bitches. You didn’t keep them right, the
right one there. Otherwise they wouldn’t have fallen because you wouldn’t have been

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there with all that shit on you like, because you know I wouldn’t have let you leave the
house like that.” Defendant also stated, “I also got a mystery biggie. I know where that
came from. That came from Fat.[5] I talked to him. He had $4 on the phone; I talked to
him.” The person with whom defendant was speaking responded, “He told me he had put
money on the phone for you.” Defendant responded, “Yeah. I talked to him one time
and, and as soon as I talked to him, he said, uh, he’s ordering me another one
immediately. You feel me? Um, so if that doesn’t come, I’m waiting on you and Mom
next week.”
In a May 14, 2015, phone conversation, defendant again talked about the same
East Side Piru “not programming right whatsoever . . . .” Defendant stated, “I don’t need
that around me, dog. You feel me? That nigga killing my infrastructure, dog.” Asked
what he understood this statement to mean, Shelton opined, “one, that [defendant] is
somebody of status because it’s his infrastructure that he is messing with. [¶] And, two,
that [the gang member being discussed] is not acting the way he is supposed to, again, not
bringing the prestige that is supposed to be brought on the neighborhood -- on the gang.”
In a May 28, 2015, phone conversation, defendant referred to having “a full-on
West La Loma meetin’ on West Loma with all of my uh, my little partners . . . .” Shelton
testified that typically, a gang member would have to be “of some level of influence” to
organize a meeting. “It’s not usually going to be this younger person that come up,
organizing something like that. Usually it’s somebody in charge of that sort of thing.”
Shelton testified that, on this call, defendant was “talking about holding a West La Loma
meeting, so he’s not talking about attending one. He’s talking about holding one,
organizing one, which leads me to believe he is of higher stature. [¶] Secondly, he refers
to West La Loma, which leads me to believe he has high stature within the West La

5 Shelton testified that Fat or Fats is “Stefan Poe who is another older East Side Piru. He
is one of the original Chedda Boyz . . . ,” a precursor to the West La Loma subset.

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Loma subset of the East Side Pirus. And then lastly, he refers to his little partners, so
he’s talking about the people who are under him, who are attending the meeting.”
In a May 31, 2015, phone conversation, defendant, again referring to the same
East Side Piru gang member, stated, “we about to cut that nigga off. We about to take
that nigga off the set. If he woulda have came in our pod, that nigga was off.” Shelton
testified that to take someone off the set means removing someone from a gang. After an
unidentified male on the phone stated, “Air it out, bro. Tell him,” defendant responded,
“Air It Out Republic.” Defendant later said, “put that on mir, bitch. Put that on little
republic,” and “I’m putting that on mir.” Shelton testified that “air it out” is a street term
usually meaning to do a shooting. Shelton testified that “put that on mir” and “air it out
republic” both meant the same thing, to do a shooting.6
In a June 9, 2015, phone conversation, defendant discussed younger people, and
stated, “I have to steer the ship from the back,” and “I have to guide them in, in, into what
they should be doin’ . . . .” He said that “[a] lot of these people is uh, man, they lost,”
and later stated, “I kinda look at ‘em and sometimes I laugh. I get a laugh out of ‘em.
And most of the time I just watch ‘em. If it don’t pertain to me, Maine, or Piglet uh it’s
under my bridge.”
In a June 20, 2015, phone conversation, an unidentified female said to defendant,
“there’s so many of you guys out here that’s locked up doing some time right now.” She
later said, “[t]here’s gotta be someone at the house with some weight, and power and pull
and shit. Delbert’s not there. You’re not there.” To Shelton, this indicated that
defendant was someone with a significant amount of weight. She then said, “[a]ll the big
key players are locked up,” and defendant responded, “I mean, we are not players like

6 “Mir” in these statements referred to Jamir Miller, an East Side Piru who had been
killed, and to put something “on Mir” was to do something in his honor.

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that.” Shelton testified that the woman’s reference to big key players meant influential
individuals from the West La Loma subset.
In a July 3, 2015, call, defendant stated, “Yeah. I’m like, see, when I was at home
- this what I told ‘em, straight up. When I was at home, y’all didn’t have to worry about
this. Wasn’t none of that going on.” He further stated, “So they was like, so Polk, you
patrol the streets? I say, you might as well say that I do. You might as well . . . .” He
continued, “ . . . say that I do. So you keep the peace, huh, Polk? Yes, I do.”
In a July 7, 2015, phone conversation, defendant stated, “[y]ou need to start
putting up fucking PJ fund, collecting fucking a PJ fund.” The unidentified female to
whom defendant was speaking stated that no one had any money, and no one “shows up.”
The following exchange ensued:
“[DEFENDANT]: Why is everybody broke? Where is everybody?
“[UNIDENTIFIED FEMALE]: Good question. (Unintelligible).
“[DEFENDANT]: What?
“[UNIDENTIFIED FEMALE]: You should ask the boys that question. There’s
nobody around PJ. Everybody’s gone.
“[DEFENDANT]: I can put you on. I could put you on from right here but I
don’t want you selling work.
“[UNIDENTIFIED FEMALE]: I already do.
“[UNIDENTIFIED FEMALE]: How do you think we’re hustling (Unintelligible)
Whispering.
“[DEFENDANT]: What weed?
“[UNIDENTIFIED FEMALE]: No.
“[DEFENDANT]: Probably just give it to George so he’ll do something for us.
“[UNIDENTIFIED FEMALE]: No. No, we’re talking I sell (Unintelligible).
“[DEFENDANT] Wait, my knocks?
Laughing.

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 “[UNIDENTIFIED FEMALE]: (Unintelligible) she has a purse around her neck
and . . .
“[DEFENDANT]: Shut up.
“[UNIDENTIFIED FEMALE]: You think I’m bull shitting you?
“[DEFENDANT]: Yes.
“[UNIDENTIFIED FEMALE]: (Unintelligible).
“[DEFENDANT]: My knocks though.
“[UNIDENTIFIED FEMALE]: Some of them. Yes. (unintelligible).”
Shelton testified that the reference to a “PJ fund” referred to the “gang as a whole
supporting incarcerated gang members.”
In a July 8, 2015, phone conversation, defendant stated, “they got me in like uh, a
lot of like associates paperwork like, like I’m the head of a cartel or something.” The
unidentified female defendant was speaking with said, “Maybe you were the head of the
cartel,” and then said, “You’re the head of the West Block.” Defendant responded, “Sh-,
girl, be quiet, girl. Dang, girl. Yeah. Man, that’s what they’re trying to say. That’s what
they’re trying to - you feel me?”
In a September 2, 2015, phone conversation, an unidentified female told
defendant, “[t]hey shot up the house,” and indicated that there were 23 shots. Defendant
stated, “Yeah. None of that be going on if I was home,” and “[n]one of that would be
happening if I was there.” According to Shelton, this shooting occurred within 24 hours
of a shooting in a Varrio Eastside Norteño neighborhood in which the target was a
Norteño trap house.7 Shelton testified, “That tells me that [defendant] has some level of
influence on what happens out on the streets. Whether it’s because of his ability to

7 Sheldon explained that a trap house is a “gang hangout location, where gang members
congregate. Oftentimes doing drug deals, things of that nature, but a general way of
explaining [it] would be a gang hangout.”

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retaliate and people fear him, or whether it’s because of his position within the gang and
ability to mediate between the sets. I don’t know which, but it does tell me that he has
the ability to deter while he’s out on the streets.”
Section 186.22 Gang Expert Testimony and Opinion
As part of his job, Shelton has spoken with “thousands” of gang members,
including approximately 50 East Side Pirus, as well as other officers and detectives
concerning their knowledge of gangs and how gangs operate. He also reviewed reports
made in his office, reports from other agencies, and other gang literature. He also
reviewed field contact records, which recorded contacts between law enforcement and
gang members as well as people in gang neighborhoods.
Shelton testified concerning his knowledge of the East Side Piru gang and the
gang’s primary subsets, including the West La Loma subset. Shelton testified that there
were approximately 360 documented East Side Pirus, approximately 100 of whom were
active. The primary colors associated with the gang were Blood colors, red and
sometimes burgundy.
Shelton explained that the East Side Pirus were involved in an active “beef” with
the Varrio Eastside Norteños, which involved “a large number of shootings.” He
discussed the origin of this conflict, which was ongoing between 2012 and 2015, and was
“heaviest” towards the end of 2014 and the beginning of 2015. Shelton testified that this
conflict would generally require members of both gangs to be armed.
Shelton continued: “Gang members, especially during a time of an active gang
war or a beef as we call it, there are several expectations placed on that gang member. [¶]
One, that gang member has to be able to protect themself. [sic] There is a completely
rival gang who is going to do harm to that gang member, and that gang member needs to
be prepared to protect himself, or more importantly protect his fellow gang members. [¶]
Two, that gang member is expected to be able to protect his neighborhood, his turf, his
street, whatever the case may be. So gang members will oftentimes patrol these streets

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with firearms to make sure that everything is quiet, to make sure that there aren’t any
rival gangs coming through their hood to do any violence on them. [¶] And then lastly,
to inflict violence on the gang, on their opposing gang. It establishes a particularly large
amount of respect on the individual and the gang as a whole when an individual gang
member carries a firearm and then takes it out and commits a violent crime against an
opposing gang.”
Shelton testified that the East Side Pirus’ “gang objectives” were to make money,
establish respect, and represent their gang and their neighborhood. He further testified,
“They have kind of a money making mentality. You see this when we are looking at the
actions that they do. Whether it’s narcotic sales, robberies, pimping and pandering,
things of that nature.”
According to Shelton, the primary activities of the East Side Piru gang included
possession and sale of narcotics, controlled substances, and marijuana, robbery, assault
with a deadly weapon and firearms and weapons-related offenses. The area where
defendant was arrested is controlled by the East Side Piru gang, and specifically by the
West La Loma subset.
Shelton testified defendant had previously been validated as an East Side Piru on
two or three occasions dating back to 2007. Detectives again validated defendant on the
night of his arrest, and he was subsequently validated while in custody. He had a number
of East Side Piru tattoos including a “P” standing for Piru and a “W” standing for West
La Loma. He also had a tattoo that said “Chedda Boyz.” Chedda Boyz was the precursor
to West La Loma. Defendant had a Facebook page, open to the public, which depicted
and discussed gang-related activities. Shelton testified it was common for gang members
to intentionally leave their social networking profiles open to the public and post gang-
related photographs to bring credit and respect to their gang from “the greatest number of
people possible.” Defendant’s phone and Facebook page had photos of fellow gang
members and he appeared in a number of photographs depicting East Side Piru activities.

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He had no fewer than 21 contacts with law enforcement between 2010 and 2015 in East
Side Piru neighborhoods in the company of other known or validated East Side Pirus.
In opining that defendant was an active member of the East Side Pirus, Shelton
also took into consideration defendant’s conduct since he had been incarcerated. One
report completed at RCCC stated that defendant and another validated East Side Piru
were stealing from other inmates and “ordering them or having them assaulted.”
Defendant was involved in a jail fight in which numerous individuals acting in concert
assaulted another individual. Four or five of the assailants were validated East Side
Pirus. Additionally, a number of the e-mails defendant received in jail contained East
Side Piru terms. Several of the e-mails were sent by validated East Side Piru members.
Shelton opined that defendant was “in the upper echelon of the East Side Pirus,
especially the West L[a] Loma subset.” Shelton based his opinion on his “observations
of the gang” and “on how individuals talk about other gang members, their arrest history,
how active they’ve been, how often they have been contacted. How other people see
them, how other people view them. How other people make reference to them, and how
they make reference to themselves.”
Shelton testified that, as a general rule, criminal activity conducted by one East
Side Piru gang member benefits the gang as a whole. Shelton testified that “gang
members are . . . ambassadors of their gang. Everything they do reflect[s] on their gang
as a whole.” Shelton continued: “So, if a particular gang member is out there, and he’s
doing what he’s supposed to do by gang standards, he’s representing his gang. He’s
making money. He’s committing crimes to further the gang or whatever the case may be,
that reflects positively on his gang as a whole as well as himself. [¶] It’s going to
enhance his own standing within the gang, and it’s going to enhance his gang standing
within the neighborhood. It’s going to make ally gang members want to continue being
their allies. It’s going to make enemy gangs less likely to violently refuse or fight his
gang. [¶] And oftentimes, it’s going to make the public, the community less likely to

14
rise against the gang, to resist the gang because they see what the gang is capable of.”
Shelton testified that “[e]verything that the individual does is going to represent what the
gang does and vice versa.” Particularly regarding an “upper echelon” gang member like
defendant, Shelton testified, “[i]f you have a gang member who is well known within the
gang, well known by members outside of a gang, well known within the community,
everything he does is going to have greater weight to how the gang is perceived
compared to say a youngster who hasn’t been around in the gang very long.”
The prosecutor asked about the ways money made on the street by gang members
is funneled back to the gang. Shelton explained: “There’s a number of ways. [¶] . . .
[¶] [O]ne example would be a Piru who makes money off narcotic sales would purchase
more narcotics and . . . give some to another gang member in order for him to make
money as well. [¶] Another example would be purchase of firearms on the streets to
commit crimes. And another way as is referenced in [an email8] is by supporting
incarcerated members. When you are incarcerated, your ability to make money is very
limited, so you kind of rely on outside sources, particularly members of the gang.”
Shelton testified that the gang’s ability to support incarcerated gang members had been
diminished because of recent law enforcement activities.
Shelton testified that, to sell narcotics where defendant was arrested, “[y]ou have
to be an East Side Piru or at least be blessed by East Side Piru. For example, a very close
ally or associate of the East Side Pirus.” Asked what he based his opinion on, Shelton
responded, “Gangs -- speaking with numerous gang members, revealing numerous
reports, including homicide reports, where East Side Pirus committed a murder or
attempted murder for individuals who are selling narcotics within their neighborhood.”

8 The email Shelton testified about is one written by an East Side Piru gang member to
Jermaine Edwards, another East Side Piru. The email was found in defendant’s jail cell.
We discuss this email in Part II.C.4., of the discussion, post.

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Shelton testified that “for somebody else to come in and deal narcotics in the East Side
Pirus’ neighborhood without being a Piru, well, that’s affecting their livelihood, that’s
affecting their ability to sustain their gang activity. And it’s a major hit to their prestige
to have somebody coming in. So for somebody else to come in, they would be assaulted
likely, oftentimes violently assaulted.” Shelton recounted an incident when two East Side
Pirus shot a member of another gang who was selling narcotics in East Side Piru territory.
The prosecutor posed a hypothetical question to Shelton that closely tracked the
facts of this case and asked whether Shelton had an opinion as to whether the individual
described in the hypothetical committed the offenses described for the benefit of or in
association with the East Side Piru criminal street gang. Shelton testified that his opinion
would be that “it does.”
Shelton testified his opinion was based on “several things” and explained: “One,
you have a known documented East Side Piru member. In particular, a high ranking East
Side Piru member dealing narcotics within a known gang neighborhood. Like I alluded
to earlier, you cannot be from outside of a gang and sell in that neighborhood. You have
to be either a Piru or have the blessings of the East Side Pirus in order to do that or risk
getting killed. [¶] As I talked about earlier, the dealing of narcotics or illicit items by the
gang has numerous benefits for the gang. [¶] One, like we just discussed with the jail
calls, these all referenced to e-mails, it goes to support incarcerated gang members. They
kind of look out for their own. [¶] Second, it establishes an individual’s ability to make
money for the gang and for himself; and thereby, bringing credibility, bringing respect,
bringing prestige on the gang as a whole. [¶] … [H]aving a large amount of money is a
big motivator for younger individuals coming up into the gang. That’s one of the primary
ways that young gang members establish themselves within the gang is by making
money. [¶] So in the context of this, by dealing narcotics, being a known gang member,
being a high level gang member, I would say that it absolutely does benefit the gang as a
whole. [¶] Additionally, we talked about the younger gang members trying to make a

16
name for themselves. As an older gang member or a gang member with position of
power, it’s a very volatile situation. You have to be able to maintain that power. You
can’t -- okay, well, you know, I made it this far, and I’m good, and I don’t have to do
anything else because there’s always somebody else trying to come up, prove their worth
and try to replace you. [¶] So even somebody who is a high ranking individual is still
likely to be out there committing crimes and promoting his gang, not necessarily the
fighting crimes but certainly dealing with narcotics or crimes of that nature, the monetary
based crimes.”
Shelton continued: “The second aspect is the firearms aspect of it. And I alluded
to it earlier, gang members feel strength when they’re armed. It’s not only the fact that
they can protect themselves in the self-defense situation, but they are protecting their
gang as a whole by patrolling the streets, by patrolling their neighborhoods. Particularly,
during a time when there is an active gang war, to keep outside factors or outside gangs
from coming into their neighborhoods and shooting up their residences like we’ve heard
about during some of the earlier evidence. [¶] And then not only that, again, it shows
that the deterrents, but it also shows that, hey, this gang is able to procure firearms, make
money. It also serves as a deterrent to the civilian populous of the community at large
because as a community member, if I know that this gang -- whatever that gang may be,
in this case the East Side Pirus is active in my neighborhood, and they are actively
committing crimes with guns, are actively doing shootings, are actively carrying guns,
oftentimes, especially with the East Side Pirus, we respond to calls where individuals are
just out there waving guns for no other purpose than to make sure everybody knows that
they have them. [¶] And what that does is it serves to intimidate a community. So that
when there is a crime, whether it be a burglary, whether it be a shooting, whatever the
case may be, a victim based crime when law enforcement responds, the community is
less likely to cooperate with law enforcement because they are afraid of retaliation from
those gang members within their neighborhood. They are afraid of what might happen to

17
them. They know they live in that community, and they don’t want the same thing to
happen to them.”
The prosecutor also asked Shelton whether the hypothetical gang member
intended to assist, further, or promote the East Side Pirus, and Shelton responded that he
did. Shelton explained: “Based on the exact same thing. The fact that he’s a known or
in this hypothetical, a validated East Side Piru, who is of significant clout, who has a
significant amount of status. Again, being in an active East Side Piru neighborhood,
patrolling that East Side Piru neighborhood with a gun, with narcotics to sell, he’s
actively promoting his gang simply by being who that individual is, being a recognizable
individual simply by being where he is, being in a known gang neighborhood, and the
activities that he’s doing, selling narcotics, carrying a firearm.”
Verdict and Sentencing
The jury found defendant guilty on all four counts and found the gang
enhancement allegations true.
The trial court sentenced defendant to an aggregate term of seven years eight
months, calculated as follows: on count two, possession of heroin for sale (Health & Saf.
Code, § 11351), the midterm of three years and a consecutive midterm of three years on
the gang enhancement; on count one, felon in possession of a firearm (§ 29800, subd.
(a)(1), a consecutive term of eight months (one-third the midterm) and a consecutive term
of one year (one-third the midterm), on the gang enhancement; on count three, possession
of heroin or methamphetamine while armed with a loaded firearm (Health & Saf. Code,
§ 11370.1, subd. (a)), a concurrent midterm of three years and the midterm of three years
on the gang enhancement, both stayed pursuant to section 654; and on count four,
possession of methamphetamine for sale (Health & Saf. Code, § 11378), a concurrent
midterm of two years and a concurrent midterm of three years on the gang enhancement.

18
 DISCUSSION
I. Sufficiency of the Evidence as to the Gang Enhancements
A. Defendant’s Contentions
Defendant asserts that the evidence was insufficient to support the jury’s findings
on the gang enhancement allegations. According to defendant, there was no evidence
that his possession of the gun and narcotics was for benefit of or done in association with
a criminal street gang, or that he committed the acts with the requisite specific intent.9
While our high court has noted that is possible for, “[a] drug dealer [to] possess drugs in
saleable quantities, along with a firearm for protection, regardless of any gang affiliation,
and without an intent to aid anyone but himself” (People v. Sanchez (2016) 63 Cal.4th
665, 699 (Sanchez)), we conclude the evidence here was sufficient to establish defendant
committed the charged offenses for the benefit of his gang.
B. Section 186.22 Gang Enhancement and Standard of Review
“[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 . . .” in
accordance with the gang enhancement provisions of section 186.22, subdivision (b).
“ ‘Like a conviction unsupported by substantial evidence, a true finding on a gang
enhancement without sufficient support in the evidence violates a defendant’s federal and
state constitutional rights and must be reversed.’ ” (People v. Perez (2017) 18
Cal.App.5th 598, 606 (Perez).) “The evidence must establish both of the two prongs to

9 Because we conclude the evidence was sufficient to establish defendant committed the
charged offenses “for the benefit of” a criminal street gang, we need not address the
second gang-relation theory of “in association with” a criminal street gang.

19
the gang enhancement under section 186.22, subdivision (b)(1). ‘First, the prosecution is
required to prove that the underlying felonies were “committed for the benefit of, at the
direction of, or in association with any criminal street gang.” ’ ” (Perez, at pp. 606-607.)
This is sometimes referred to as the gang-related prong. (See People v. Rios (2013) 222
Cal.App.4th 542, 564 (Rios).) “ ‘Second, there must be evidence that the crimes were
committed “with the specific intent to promote, further, or assist in any criminal conduct
by gang members.” ’ ” (Perez, at pp. 606-607.) This is sometimes referred to as the
specific-intent prong. (See Rios, at p. 564.)
“Not every crime committed by gang members is related to a gang.” (People v.
Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) “Although a lone actor is subject to a gang
enhancement, merely belonging to a gang at the time of the commission of the charged
conduct does not constitute substantial evidence to support an inference the sole actor
specifically intended to promote, further, or assist any criminal conduct by gang
members. [Citation.] Otherwise . . . , ‘gang enhancement would be used merely to
punish gang membership.’ ” (Perez, supra, 18 Cal.App.5th at p. 607.)
“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.’ ” (Albillar, supra, 51 Cal.4th
at pp. 59-60.) “ ‘A reversal for insufficient evidence “is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ”

20
the jury’s verdict.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri), italics
added; see also People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio); People v.
Bolin (1998) 18 Cal.4th 297, 331 (Bolin); People v. Spencer (1969) 71 Cal.2d 933, 937
(Spencer).)
C. Analysis
1. The Gang-related Prong
Detectives Shelton and Barawed came upon defendant and a female in front of a
dark house at night in a known gang neighborhood controlled by the East Side Pirus.
Both detectives recognized defendant as a validated member of the East Side Pirus.
Defendant had a loaded Ruger nine-millimeter semiautomatic with a round in the
chamber and a torn plastic baggie indicative of narcotic sales. A subsequent search of
defendant revealed that he had three baggies, two containing methamphetamine and one
containing heroin in the amounts specified ante.
At the time of his encounter with the detectives, defendant was wearing two
wristbands commonly worn by East Side Pirus which commemorated the victims of a
2011 triple homicide. Defendant also had a number of East Side Piru tattoos including a
“P” standing for Piru and a “W” standing for West La Loma.
After defendant’s arrest, law enforcement went to defendant’s house to conduct a
search. As they approached the house, they saw two validated East Side Pirus members
outside the house along with the same female who had been with defendant no more than
30 minutes earlier. At defendant’s house, Shelton found a baseball cap of a type
commonly worn by East Side Pirus bearing the red letters R and C, which members of
East Side Piru wear as symbolizing Rancho Cordova. Items found in his possession
during a search of his cell indicated he was an East Side Piru Defendant’s own
statements during his phone conversations at the jail supported the prosecution’s
contention that defendant was not just a member of the gang, but a high-ranking member.
His Facebook page and photographs on his phone further documented his gang activities.

21
 The text messages from the phone found at the location where defendant was
arrested, which defendant apparently attempted to delete by performing a factory reset,
indicate that defendant was involved and cooperating with other individuals in the sale of
controlled substances. Defendant’s drug-selling activities were known to others, and,
where defendant was arrested, in the middle of East Side Piru territory, “[y]ou have to be
an East Side Piru or at least be blessed by East Side Piru,” to sell controlled substances.
Shelton testified that the East Side Pirus’ objectives included making money and
one of the ways they did so was by selling narcotics and some of these funds were used to
financially support incarcerated members. Financial support included bailing gang
members out of jail, putting money on incarcerated gang members’ books or phones, and
purchasing care packages for inmates.
The totality of the evidence, including both Shelton’s expert testimony and
additional evidence admitted at trial, established that defendant was a high ranking,
“upper echelon” validated member of the East Side Pirus apprehended in the middle of
East Side Piru territory engaged in one of the primary activities of the East Side Pirus—
possession of controlled substances for sale—which he could not do unless he was a
member or had the blessings of the East Side Pirus.
All of this evidence permits the inference that, on the night of his arrest, defendant
possessed methamphetamine and heroin for sale in association with and for the benefit of
the East Side Pirus.
Additionally, defendant, whose gang was embroiled in a “beef” with the Varrio
Eastside Norteños, was armed with a loaded firearm at the time of his arrest. Shelton
testified that “[g]ang members, especially during a time of an active gang war or a
beef . . . , there are several expectations placed on that gang member,” including
protecting himself or herself, the gang, and the gang’s neighborhood. Thus, this
evidence, in addition to the obvious inference of needing a gun to protect his narcotics,
support the gang enhancement allegation true findings as to the firearm offense.

22
 In the face of this evidence we cannot say there is “no hypothesis” supporting the
jury’s gang relation finding. (See Penunuri, supra, 5 Cal.5th at p. 142; Zamudio, supra,
43 Cal.4th at p. 357; Bolin, supra, 18 Cal.4th at p. 331; Spencer, supra, 71 Cal.2d at
p. 937.) To the contrary, the foregoing constitutes substantial evidence to satisfy the
gang-related prong, specifically that defendant committed his crimes for the benefit of the
East Side Pirus.
2. The Specific Intent Prong
Regarding specific intent, we note, “[r]arely is the perpetrator’s intent proven by
direct evidence; usually it must be inferred from the facts and circumstances surrounding
the case.” (Perez, supra, 18 Cal.App.5th at p. 607.)
The evidence here established that the sale of controlled substances would
promote, further, or assist the gang financially. And all of the above evidence showing
gang relation also supports an inference of defendant’s specific intent as to both the
controlled substances and firearm charges. Additionally, Shelton opined that the
hypothetical gang member the prosecutor asked him about intended to assist, further, or
promote the East Side Pirus. In doing so, Shelton did not merely offer his opinion on the
matter. He described facts, supported by evidence in the record, including defendant’s
own statements during the jail phone conversations, which would permit the jury to infer
defendant’s intent from the facts and circumstances in the case. (Perez, supra, 18
Cal.App.5th at p. 607.) Indeed, defendant’s Facebook account and his phone
conversations support the inference that his gang was his personal primary activity and a
way of life for him.
Again, “ ‘ “ ‘a reversal for insufficient evidence is unwarranted unless it appears
that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” ’ ”
the jury’s finding that, in committing the charged crimes, defendant specifically intended
to promote, further, or assist criminal conduct by gang members. (See Penunuri, supra, 5
Cal.5th at p. 142, italics added; see also Zamudio, supra, 43 Cal.4th at p. 357; Bolin,

23
supra, 18 Cal.4th at p. 331; Spencer, supra, 71 Cal.2d at p. 937.) We conclude that
substantial evidence supports the jury’s finding that defendant committed the charged
crimes with the requisite specific intent.
3. Cases upon which Defendant Relies
Relying on People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa), defendant
advances the premise that “[a] gang expert’s testimony alone is insufficient to find an
offense gang related.” (Id. at p. 657.) Defendant cites the Ochoa court’s statements that
“ ‘[T]he record must provide some evidentiary support, other than merely the defendant’s
record of prior offenses and past gang activities or personal affiliations, for a finding that
the crime was committed for the benefit of, at the direction of, or in association with a
criminal street gang’ ” and “something more than an expert witness’s unsubstantiated
opinion that a crime was committed for the benefit of, at the direction of, or in association
with any criminal street gang is required to justify a true finding on a gang enhancement.”
(Id. at pp. 657, 660.)
Defendant acknowledges that several years after Ochoa our high court stated:
“ ‘[e]xpert 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.” (People v. Vang (2011) 52 Cal.4th 1038, 1048 (Vang).) However,
defendant emphasizes that our high court in Vang further stated that the expert testimony
in that case, “if found credible, might, together with the rest of the evidence, cause the
jury to find the assault was gang related.” (Ibid., italics added.) Thus, defendant asserts
that our high court has not disapproved of Ochoa and similar cases, and has not held that
expert testimony alone is sufficient to support a true finding on a gang enhancement
allegation.
First, we reject defendant’s broad reading of Ochoa. While the court in Ochoa,
supra, 179 Cal.App.4th at pages 657, 659, citing People v. Ferraez (2003) 112
Cal.App.4th 925, 931 (Ferraez), spoke of expert testimony being insufficient without

24
evidentiary support, a close reading of Ochoa and Ferraez suggests that those courts were
referring to the expert’s bottom line opinion about the crime benefiting the gang not
being sufficient in and of itself. The expert’s other testimony can be part of the
evidentiary support underlying the expert’s bottom line opinion that the crime benefited
the gang. For example, the expert’s testimony about the gang’s culture and habits is part
of the evidentiary support underlying an inference that the conduct was committed for the
benefit of the gang. (See Vang, supra, 52 Cal.4th at p. 1044 [gang experts may testify
about the culture and habits of gangs]; Ferraez, at p. 930 [same].) So too is an expert’s
testimony that particular criminal conduct enhances the gang’s reputation (Albillar,
supra, 51 Cal.4th at p. 63), or that the commission of certain crimes elevates the status of
the gang member and the gang, and thus such conduct benefits the gang (People v.
Vazquez (2009) 178 Cal.App.4th 347, 354; People v. Romero (2006) 140 Cal.App.4th 15,
19).
Second, as for expert opinion evidence, we agree that the opinion of the expert that
a crime benefits a gang can be sufficient to support the section 186.22, subdivision (b)(1),
gang enhancements when that opinion is supported by evidence in the record. Indeed, a
gang expert’s opinion to this effect must be supported by and based on the evidence
presented at trial. Otherwise, it would not be relevant, probative, or assist the trier of fact
in its fact-finding responsibilities. We conclude that, unlike the cases on which defendant
relies, the jury’s determination here was supported by the gang expert’s opinion together
with abundant evidence presented at trial.
Ochoa is distinguishable. In concluding that substantial evidence did not support
the gang enhancement allegation true findings in Ochoa, a robbery/carjacking
prosecution where the defendant was the sole perpetrator, that court stated that “nothing
in the circumstances of the instant offenses sustain the expert witness’s inference that
they were gang related.” (Ochoa, supra, 179 Cal.App.4th at pp. 661-662.) The court
noted: “[d]efendant did not call out a gang name, display gang signs, wear gang clothing,

25
or engage in gang graffiti while committing the instant offenses. There was no evidence
of bragging or graffiti to take credit for the crimes. There was no testimony that the
victim saw any of defendant’s tattoos. There was no evidence the crimes were committed
in Moreno Valley 13 gang territory or the territory of any of its rivals. There was no
evidence that the victim of the crimes was a gang member or a Moreno Valley 13 rival.
Defendant did not tell anyone, as the defendant did in Ferraez, that he had special gang
permission to commit the carjacking. [Citation.] Defendant was not accompanied by a
fellow gang member.” (Ochoa, at p. 662, fn. omitted, italics added.) Also problematic in
Ochoa, “the prosecutor did not pose any hypothetical to the gang expert, but essentially
asked him the impermissible question of whether the particular crimes were committed to
benefit defendant’s gang. Thus, the prosecutor’s questions posed precisely the danger
warned of in” People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), disapproved on a
different ground in Sanchez, supra, 63 Cal.4th at p. 686, footnote 13, specifically “ ‘ “the
risk that the jury might improperly consider [expert opinion testimony] as independent
proof of the facts recited therein.” ’ ” (Ochoa, at p. 664, citing Gardeley, at pp. 618-619.)
Here, the prosecutor asked Shelton hypothetical questions based on facts similar to
the facts of this case, and avoided the problem discussed in Ochoa created by asking the
gang expert directly whether the defendant committed the crimes to benefit his or her
gang. Also, unlike in Ochoa, defendant’s crimes were committed in gang territory, a
circumstance the Ochoa court highlighted as missing in that case. (Ochoa, supra, 179
Cal.App.4th at p. 662.) Defendant was wearing wristbands commonly worn by East Side
Pirus which Shelton observed as he was moving defendant to a vehicle. The evidence,
including text messages from defendant’s cell phone and the amount of the controlled
substance on his person, clearly established he was in the narcotics trafficking business.
During one of his jail phone conversations, defendant complained his “whole empire is
crumbling.” To which the unidentified female with whom he was speaking noted that

26
defendant had relied on “some faulty bitches” who “wouldn’t have fallen because you
wouldn’t have been there with all that shit on you.”
Additionally, unlike the expert in Ochoa, Shelton did not testify that crimes such
as those committed here committed by a gang member “would always be for the benefit
of the gang . . . .” (Ochoa, supra, 179 Cal.App.4th at p. 662.) Presented by the defense
with a hypothetical scenario of an East Side Piru going to Orangevale and selling
narcotics, Shelton testified that whether the crime would benefit the gang or further the
gang would depend on the totality of the circumstances. He testified, “Could it further
the gang? Maybe. Maybe not. Compared to doing it within the gang territory?
Absolutely . . . .” Shelton noted that anybody could go into Orangevale where no
particular gang set runs the neighborhood, “[b]ut within [the] gang set neighborhood, the
only person allowed to do that is somebody from that gang. You cannot sell dope or sell
narcotics there, or commit other crimes there without being a . . . member of that gang, or
hav[ing] permission of that gang . . . if you do, you are going to end up hurt.” Asked on
cross-examination about a hypothetical circumstance of an East Side Piru going to
another neighborhood and committing robbery, Shelton testified that, based on those
facts, “that simple act doesn’t necessarily make it benefit the gang. [¶] So in that very
specific or broad description that you provided, I couldn’t say one way or the other.
Maybe it is, maybe it isn’t.” Subsequently asked on cross-examination if he could “see
that a gang member can certainly commit a crime that’s not for the benefit of the gang,”
Shelton responded, “Oh, absolutely, yes.” A gang member could rob someone without
the gang benefiting. Thus, Shelton did not opine that crimes committed by a gang
member would always be for the benefit of the gang, but only that these crimes
committed under these circumstances were for the benefit of the gang. Unlike in Ochoa,
we do not see Shelton’s testimony as improperly informing the jury how the expert
believed the case should be decided, without any underlying factual basis to support it.
(Ochoa, at p. 662.)

27
 Defendant also relies on In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.),
in which a police officer stopped a minor who was on a bicycle when he failed to stop at
a red light and discovered that the minor had on his person a concealed knife, a small
bindle of methamphetamine, and a red bandana. (Id. at p. 1195.) The minor was
charged, among other things, with carrying a concealed dirk or dagger (former § 12020,
subd. (a)(4)), with a gang enhancement allegation (§ 186.22, subd. (b)(1)). (Frank S., at
p. 1195.) In concluding that substantial evidence did not support the gang enhancement
allegation true finding, the Frank S. court stated: “the expert simply informed the judge
of her belief of the minor’s intent with possession of the knife, an issue reserved to the
trier of fact. She stated the knife benefits the Nortenos since ‘it helps provide them
protection should they be assaulted by rival gang members.’ However, unlike in other
cases, the prosecution presented no evidence other than the expert’s opinion regarding
gangs in general and the expert’s improper opinion on the ultimate issue to establish that
possession of the weapon was ‘committed for the benefit of, at the direction of, or in
association with any criminal street gang . . . .’ [Citation.] The prosecution did not
present any evidence that the minor was in gang territory, had gang members with him,
or had any reason to expect to use the knife in a gang-related offense. In fact, the only
other evidence was the minor’s statement to the arresting officer that he had been jumped
two days prior and needed the knife for protection. To allow the expert to state the
minor’s specific intent for the knife without any other substantial evidence opens the door
for prosecutors to enhance many felonies as gang-related and extends the purpose of the
statute beyond what the Legislature intended.” (Id. at p. 1199, italics added.)
Here, unlike the circumstances in Frank S., the evidence established that defendant
was in gang territory and was engaged in a primary activity of the gang of which he was a
high-ranking member. Moreover, the evidence established that defendant had a concrete
reason to be in possession of a loaded firearm in addition to protecting his product—the

28
ongoing beef with the Varrio Eastside Norteños. Indeed, this conflict had been active for
years, and, according to Shelton, was “heaviest” around the time of defendant’s arrest.
People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), another case on which
defendant relies, is of no help to defendant. There, the defendant was convicted of
receiving a stolen vehicle and firearm possession offenses, and the jury found true gang
enhancement allegations (§ 186.22, subd. (b)(1)). (Ramon, at p. 846.) The prosecution’s
gang expert relied on two facts in concluding that the defendant committed his crimes for
the benefit of a criminal street gang with the specific intent to promote that gang: “(1)
Both the defendant and the codefendant were members of the Colonia Bakers criminal
street gang, and (2) the two were stopped in territory claimed by the Colonia Bakers.
From these two facts, along with the crimes the two were accused of committing, [the
gang expert] opined that the crime was committed for the benefit of the Colonia Bakers
criminal street gang and was intended to promote the Colonia Bakers.” (Id. at p. 849.)
The gang expert’s opinion was based on his belief that, because a gun and a stolen
vehicle could be used to commit crimes, the two defendants must have been acting on
behalf of their gang. (Ibid.) In determining that the evidence was insufficient to support
the true findings, the Ramon court concluded that there were no facts in the record from
which the expert could discern whether the codefendants were acting on their own behalf
or on behalf of their gang, and, because the factors on which the expert based his opinion
were insufficient to permit him to arrive at a conclusion on the defendant’s specific
intent, that opinion could not constitute substantial evidence to support the true findings.
(Id. at pp. 851-852.) Among other things, the Ramon court noted: “The analysis might
be different if the expert’s opinion had included ‘possessing stolen vehicles’ as one of the
activities of the gang. That did not occur and we will not speculate.” (Id. at p. 853.)
Defendant also relies on Rios, supra, 222 Cal.App.4th 542, another case involving
vehicle theft and firearms possession charges. There, the defendant, who was the sole
occupant, was driving the stolen vehicle. A gun and gang-related clothing were found

29
inside. (Rios, at pp. 547-548.) Regarding the gang enhancement, the Rios court focused
only on the specific intent prong, specifically “whether there was substantial evidence
that defendant stole the car and carried the loaded firearm in the car [citation] ‘with the
specific intent to promote, further, or assist in any criminal conduct by gang members.’ ”
(Id. at p. 572.) The Rios court noted that in answering hypothetical questions relevant to
the firearms count, the gang expert was asked to consider only two facts: (1) the person
was a gang member and (2) he possessed a gun. (Id. at p. 573.) Similarly, as to the
vehicle theft crime, the hypothetical question asked the expert to consider only two facts:
(1) possession of a stolen vehicle (2) by a gang member. (Id. at p. 574.) The Rios court
concluded that such expert testimony was insufficient to support an inference that the
defendant committed each crime with the specific intent to promote, further, or assist in
any criminal conduct by gang members. (Id. at pp. 573-574.) That court further
reasoned: “[L]ike Frank S. and Ochoa, there was no evidence that defendant was in
Norteño territory or rival gang territory when he stole the car; that he called out a gang
name, displayed gang signs or otherwise stated his gang affiliation; or that the victims of
the car theft were rival gang members or saw his tattoos or gang clothing. Here, although
there was evidence that auto thefts and illegal gun possession were among the primary
activities of the Norteño gang in Salinas, that evidence alone was insufficient to support
the inference that defendant stole the Chrysler and possessed the gun with the specific
intent to promote, further, or assist in any criminal conduct by gang members.” (Rios, at
p. 574, italics added.)
Here, defendant, a high-ranking East Side Piru member, was apprehended in gang
territory wearing gang paraphernalia. Lurking in a dark area, he was engaged in
possession of controlled substances for sale—which, unlike in Ramon, was indeed
established as a primary activity of the East Side Pirus. Firearms offenses were also an
established primary activity. Additionally, unlike robbery, vehicle theft, and weapons
possession, the sale of narcotics here is a crime closely tied to gang territory; it is done by

30
East Side Piru gang members in their territory where nobody else is permitted to do so.
That activity was also connected with the gang’s efforts to support both the gang and
incarcerated gang members financially. Again, as for the firearm charge, it can be
inferred that the firearm facilitated the crime of selling or possessing for sale controlled
substances by providing a security mechanism to protect the product. Moreover,
defendant was armed with a loaded firearm at a time characterized as the “heaviest”
period of the gang conflict between the East Side Pirus and the Varrio Eastside Norteños.
And as we have noted, defendant’s Facebook account and his own statements made
during jail phone calls supports the inference that defendant’s gang was a way of life for
him.
Unlike in the cases upon which defendant relies, Shelton here did not “simply
inform[] the jury of how he felt the case should be resolved.” (Ramon, supra, 175
Cal.App.4th at p. 851.) Instead, he offered his opinion based on a hypothetical reflecting
the facts of this case, provided relevant background information concerning the East Side
Pirus, and his opinion was supported by other evidence in the record.
4. Conclusion
We conclude that substantial evidence supported both the gang-related prong and
the specific-intent prong of the section 186.22, subdivision (b), gang enhancement
allegations. Accordingly, we reject defendant’s contention that the jury’s true findings as
to the gang enhancement allegations were not supported by substantial evidence.10

10 In part II. of the Discussion, post, we determine that certain items of evidence were
improperly admitted under Sanchez, supra, 63 Cal.4th 665. We have not considered this
evidence in our legal sufficiency/substantial evidence analysis.

31
 II. Confrontation Clause Claims
A. Defendant’s Contentions
Defendant asserts that his Sixth Amendment confrontation clause rights were
violated when the trial court allowed Shelton to testify to facts where the bases for
Shelton’s knowledge constituted testimonial hearsay. Defendant points out that Shelton
testified, based on information he had been told or read about in police reports, about
other declarants’ statements such as who had been validated, predicate offenses, and
defendant’s conduct while in custody. Defendant asserts that, under Sanchez, supra, 63
Cal.4th 665, all of this testimony constituted case-specific testimonial hearsay, the
admission of which violated his confrontation clause rights. We conclude that two topics
of Shelton’s testimony were inadmissible, but conclude the admission of that evidence
was harmless.
B. Hearsay, Crawford, and Sanchez
“ Hearsay evidence’ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) “Except as provided by law, hearsay evidence
is inadmissible.” (Evid. Code, § 1200, subd. (b).)
“In [Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford)],
the United States Supreme court held that the admission of testimonial hearsay violates
the confrontation clause unless the declarant is unavailable for trial and the defendant had
a prior opportunity to cross-examine the declarant. [Citation.] However, the court
further stated that the confrontation clause does [not] prohibit the admission of
testimonial statements for purposes other than establishing the truth of the matter
asserted.” (Crawford, at pp. 53-54, 59, fn. 9.)
In Sanchez, our high court considered “the degree to which the Crawford rule
limits an expert witness from relating case-specific hearsay content in explaining the
basis for his opinion,” and held that “case-specific statements related by the prosecution

32
expert concerning [a] defendant’s gang membership constitute[] inadmissible hearsay
under California law.” (Sanchez, supra, 63 Cal.4th at p. 670.) “Case-specific facts are
those relating to the particular events and participants alleged to have been involved in
the case being tried.” (Id. at p. 676.)
The Sanchez court further held that some of the hearsay statements in that case
were also testimonial and should have been excluded under Crawford. (Sanchez, supra,
63 Cal.4th at pp. 670-671.) Our high court “adopt[ed] the following rule: When any
expert relates to the jury case-specific out-of-court statements, and treats the content of
those statements as true and accurate to support the expert’s opinion, the statements are
hearsay. It cannot logically be maintained that the statements are not being admitted for
their truth. If the case is one in which a prosecution expert seeks to relate testimonial
hearsay, there is a confrontation clause violation unless (1) there is a showing of
unavailability and (2) the defendant had a prior opportunity for cross-examination, or
forfeited that right by wrongdoing.” (Id. at p. 686.) In adopting these rules, the Sanchez
court disapproved of its pre-Crawford decisions which held that the matters upon which
an expert relied as the bases of the expert’s opinion were not offered for their truth, and
rejected the notion that a limiting instruction coupled with an Evidence Code section 352
balancing analysis was sufficient to allay hearsay and confrontation clause concerns. (Id.
at p. 686, fn. 13.)
However, Sanchez did “not affect the traditional latitude granted to experts to
describe background information and knowledge in the area of his [or her] expertise.”
(Sanchez, supra, 63 Cal.4th at p. 685.) As the Sanchez court observed, “an expert’s
background knowledge and experience is what distinguishes him [or her] from a lay
witness, and, as noted, testimony relating such background information has never been
subject to exclusion as hearsay, even though offered for its truth.” (Ibid.) A gang expert
may relate such background information regarding his or her knowledge and expertise, as
well as premises generally accepted within his or her field, even though such testimony is

33
offered for its truth. (Ibid.) Thus, a gang expert may testify concerning general
background information relating to gang culture and the “history and general operations”
of a specific gang. (Id. at p. 698, italics added.) Applying this rule to the facts in
Sanchez, our high court noted that the gang expert’s testimony about “general gang
behavior or descriptions of the . . . gang’s conduct and its territory” was “background
testimony.” (Ibid., italics added) Such testimony is based on well-recognized sources in
the expert’s area of expertise. (Ibid.)
If gang expert testimony contains case-specific hearsay, we must then consider
whether the testimony constituted testimonial hearsay. (Sanchez, supra, 63 Cal.4th at
p. 680.) The United States Supreme Court has not provided a clear definition of
“testimonial.” (People v. Leon (2015) 61 Cal.4th 569, 603 (Leon).) However, our high
court has “discerned two requirements. First, ‘the out-of-court statement must have been
made with some degree of formality or solemnity.’ [Citation.] Second, the primary
purpose of the statement must ‘pertain[] in some fashion to a criminal prosecution.’ ”
(Ibid.; accord, People v. Dungo (2012) 55 Cal.4th 608, 619 [referring to the formality and
primary purpose criteria as “critical components” instead of “requirements”].) “When the
People offer statements about a completed crime, made to an investigating officer by a
nontestifying witness, Crawford teaches those hearsay statements are generally
testimonial unless they are made in the context of an ongoing emergency . . . , or for
some primary purpose other than preserving facts for use at trial.” (Sanchez, at pp. 694-
695.) Formal police reports may be made with the requisite degree of formality or
solemnity.11 (Ibid.)

11 The prosecution was on notice concerning the potential confrontation clause issues
here. In denying defendant’s hearsay and confrontation clause objections, the trial court
expressly noted that the law concerning whether an expert can rely on hearsay and
testimonial hearsay was “in flux” and that Sanchez was then pending in the California
Supreme Court.

34
 C. Analysis
1. Predicate Offenses
The definition of criminal street gang requires that the organization engage in a
pattern of criminal gang activity. (§ 186.22, subdivision (f).) A gang engages in a
“ ‘pattern of criminal gang activity’ ” so as to satisfy that element of the statute “when its
members participate in ‘two or more’ statutorily enumerated criminal offenses (the so-
called ‘predicate offenses’) that are committed within a certain time frame and ‘on
separate occasions, or by two or more persons.’ ” (People v. Zermeno (1999) 21 Cal.4th
927, 930, quoting § 186.22, subd. (e).)
Shelton testified about two predicate offenses, one involving individuals not
involved in the current case and one involving defendant. He testified that, in preparing
for this testimony, he reviewed several police reports.
Shelton testified that in September 2013, Rancho Cordova police officers
conducted a vehicle stop in a gang neighborhood. The driver was a known East Side Piru
associate, Mario Sangado, and the passenger was a validated East Side Piru member,
Tremaine Robinson, who was on probation. The officers conducted a probation search of
Robinson and found approximately four grams of methamphetamine and four and a half
ounces of heroin. Officers arrested Robinson for possession of heroin and
methamphetamine for sale. Robinson pled no contest to possession for sale under Health
and Safety Code section 11351 and was sentenced to two years in jail.
Where a predicate offense involves neither the particular events nor participants
involved in the case being tried, the testimony concerning those offenses is admissible as
background information. (People v. Bermudez (2020) 45 Cal.App.5th 358, 376-377
(Bermudez).) “Predicate offenses are chapters in a gang’s biography and constitute
historical background information, not case-specific information.” (Id. at p. 363.) A
gang expert may testify to non-case-specific general background information about the
gang, including “its rivalry with [another gang], its primary activities, and its pattern of

35
criminal activity, even if it was based on hearsay sources.” (Id. at p. 377, some italics
added.) Consequently, we conclude Shelton’s testimony concerning the Robinson
predicate offense did not violate Sanchez.12
As noted, the other predicate offense involves defendant. Shelton testified that in
March 2011, Rancho Cordova police responded to a call reporting shots fired in an
apartment complex. The apartment complex, which was in a known East Side Piru
neighborhood, was known for gang activity. When officers arrived, they heard shots
being fired. They searched the area and encountered defendant. Defendant fled and the
officers chased and eventually apprehended him. Defendant resisted the officers and a
violent struggle ensued. During the struggle, defendant threw a handgun over a fence.
Officers subdued defendant, handcuffed him, and found the handgun. Defendant pled no
contest to illegal possession of a firearm in violation of former section 12021, and was
sentenced to 365 days in jail.
There is no indication in the record that Shelton was personally involved in that
case and, based on his acknowledgment that he read the police report about the incident,
as well as his description of it, it does not appear that he was. Because this testimony
consisted of out-of-court statements from a police report, offered for the truth of the
matter asserted, and involved a participant in the case being tried, it was case-specific
hearsay. (Evid. Code, § 1200; Sanchez, supra, 63 Cal.4th at p. 676.) There was no
showing that any exception to the hearsay rule applied. Further, there was no showing of
unavailability or that defendant had a prior opportunity for cross-examination or forfeited

12 We also note that a certified copy of the record of the Robinson conviction was
introduced into evidence, and would have been admissible over a hearsay objection had
there been one. (Evid. Code, § 452.5; People v. Ochoa (2017) 7 Cal.App.5th 575, 589,
fn. 10; People v. Duran (2002) 97 Cal.App.4th 1448, 1461.) This record of conviction
was evidence of the predicate offense independent of Shelton’s testimony concerning the
underlying facts.

36
that right by wrongdoing. (See Sanchez, at pp. 680, 686.) Therefore, we proceed to the
second step of the two-step inquiry described in Sanchez and consider whether the
content of Shelton’s testimony constituted testimonial hearsay. (Id. at p. 680.)
Shelton’s testimony concerning the predicate offense involving defendant was
based on a police report concerning the shots fired incident and investigation, and the
report pertained to defendant’s criminal prosecution. (Leon, supra, 61 Cal.4th at p. 603.)
As defendant correctly asserts, because he objected to Shelton’s proposed testimony on
confrontation clause grounds, the prosecution, “as the proponent of evidence
presumptively barred by the hearsay rule and the Confrontation Clause,” bore the burden
of establishing it was not testimonial hearsay. (Idaho v. Wright (1990) 497 U.S. 805, 816
[111 L.Ed.2d 638, 652-653] (Wright); see United States v. Jackson (5th Cir. 2011) 636
F.3d 687, 695 [the government bears the burden of defeating the defendant’s properly
raised confrontation clause objection by establishing that its evidence is nontestimonial];
People v. Livaditis (1992) 2 Cal.4th 759, 778; Ochoa, supra, 7 Cal.App.5th at pp. 584-
585.) The prosecution did not address this issue and as a consequence, did not meet its
burden.
On this record, the evidence pertaining to the underlying facts of the predicate
offense involving defendant constituted testimonial hearsay. Therefore, we conclude that
it was error for the trial court to admit this testimony and defendant’s confrontation
clause rights were violated as a result. Whether this error was harmless will be discussed
in part II.D. of the Discussion, post.
2. Gang Validation Documents Related to Other Gang Members
Defendant contends Shelton’s testimony concerning the “contents of police ‘gang
validation’ documents, the ‘official documentation of somebody’s gang involvement’ ”
violated his confrontation clause rights. Defendant focuses his argument on the
numerous individuals who Shelton identified as validated East Side Piru gang members

37
during his testimony.13 Defendant asserts that Shelton’s testimony concerning “ ‘gang
validation’ documents” related to others with whom he appeared in photographs,
individuals with or about whom he communicated while in jail pending trial, individuals
whom he interacted with on a Facebook account, and individuals who were at
defendant’s house on the day he was arrested, all constituted inadmissible hearsay
testimony.
We disagree because as we have noted, “a gang expert may ‘testify to non-case-
specific general background information about [the gang], its rivalry with [another gang],
its primary activities, and its pattern of criminal activity, even if it was based on hearsay
sources.’ ” (Bermudez, supra, 45 Cal.App.5th at p. 377, some italics added.) We see the
gang validation material relating to the gang membership of individuals not involved in
this case as background information admissible under Sanchez. Just as the predicate
offenses are chapters in the gang’s biography, its members are also part of that
biography.14

13 Defendant acknowledges that he knew Detectives Barawed and Shelton from prior
contacts and that he had personally told Barawed he was an East Side Piru member when
Barawed last validated defendant. Defendant further acknowledges that Shelton’s
testimony in this regard was admissible as a party admission. (See Evid. Code, § 1220.)
14 This testimony is different from the testimony found to be inadmissible in Sanchez
related to a “STEP Notice” and field identification cards documenting occasions when
the defendant was found to be in the presence of other gang members. The hearsay and
confrontation issue raised by that testimony related to the gang expert testifying about the
defendant’s past contacts with law enforcement, including contacts with other gang
members, when the officers who actually had contact with the defendant did not testify.
(See Sanchez, supra, 63 Cal.4th at pp. 673, 674, 696-698.) Since that information
pertained to defendant, it was case-specific. Nothing in Sanchez suggests identifying
other individuals – who are not involved in the current case -- as documented or validated
gang members violates the confrontation clause.

38
 3. E-mails Sent to Defendant While in Custody
Defendant challenges the admission of testimony relating to the contents of
several e-mails from March 27 and 28, 2015, that were sent to him while he was in jail
awaiting trial. Shelton explained how jail inmates are able to receive e-mails from people
outside of the jail. He testified that he reviewed the e-mails in question and noted that
they contained numerous East Side Piru terms. Additionally, there were numerous e-
mails sent by known validated East Side Piru members from e-mail addresses that had
East Side Piru references in them.
This testimony did not constitute case-specific testimonial hearsay barred by
Sanchez. In Sanchez, our high court included a number of examples to illustrate the
difference between case-specific facts and background information. Among the
examples, our high court stated: “That an associate of the defendant had a diamond
tattooed on his arm would be a case-specific fact that could be established by a witness
who saw the tattoo, or by an authenticated photograph.[15] That the diamond is a symbol
adopted by a given street gang would be background information about which a gang
expert could testify. The expert could also be allowed to give an opinion that the
presence of a diamond tattoo shows the person belongs to the gang.” (Sanchez, supra, 63
Cal.4th at p. 677, italics added.) Here, Shelton did not testify about the truth of the
matters asserted in the e-mails. Indeed, because the e-mails were not offered for the truth

15 As we discussed in Bermudez, this hypothetical must be understood as relating to a
hypothetical associate who was a participant in the events involved in the case being
tried, not a fellow gang member uninvolved in the case, but who had committed a
predicate offense. (Bermudez, supra, 45 Cal.App.5th at p. 377.) We arrived at this
conclusion because: “(1) the issue before the Sanchez court did not relate to facts
underlying predicate offenses, but rather related to facts establishing the defendant’s gang
membership, which included gang expert testimony concerning the gang affiliations of
people defendant had been with on previous occasions, and (2) the Sanchez court’s
explanation of background facts includes facts related to the conduct, history and
operations of the gang.” (Ibid., fn. 13.)

39
of the matters asserted therein, the e-mails did not constitute hearsay. Shelton testified
that the content of the e-mails, which had been sent to defendant, included East Side Piru
references. We see this as being analogous to testifying as to the significance of the
diamond tattoo. This testimony was not barred as case-specific hearsay under Sanchez.
Nor could this information, none of which was written by law enforcement, be
considered testimonial. This testimony was properly received.
4. E-mail in Defendant’s Possession Addressed to Another Gang Member
Defendant asserts that testimony concerning a printed e-mail discovered in his
property box in his jail cell was testimonial hearsay. As Shelton testified, this e-mail was
sent to Jermaine Edwards, a validated East Side Piru gang member with whom defendant
was associated. The email address of the sender and the sender’s name indicated the
sender was an East Side Piru. Shelton testified concerning the contents of the e-mail,
including his interpretations, in pertinent part as follows: “Hell of shit has been going on,
feel me, so the sender is telling the recipient that there’s a lot of stuff going out on the
streets. There is a lot of activity within the gang bang going on in the streets. But our
first priority is bailing you out. [¶] What he is saying is our, it’s not the sender’s first
priority, it’s the gang as a whole, their gang’s first priority is getting Jermaine Edwards
out of jail by bailing him out. [¶] I’ve been on Bloods helmet. On blood, basically an
East Side Piru reference. Pirus are a subset of the Bloods. I’m going to put money on the
phone, so call when you get this, Ru. Again, the sender is supporting Jermaine Edwards
monetarily by putting money on his phone, so that he can make calls. And then finishing
it with, Ru. Referring to Edwards as Ru, a term of endearment for Pirus. Be smooth,
West, means stay out of trouble, and then West La Loma.”
The testimony pertaining to the contents of this e-mail does not contain case-
specific facts. The email pertained to another gang member, putting money on that gang
member’s phone account and the priority of the gang to bail him out. Nothing in this e-
mail or Shelton’s interpretation of it pertains to “the particular events and participants

40
alleged to have been involved in the case being tried.” Thus, Shelton’s testimony did not
contain prohibited case-specific hearsay under Sanchez. Nor could this testimony,
involving a document not written by law enforcement, be considered testimonial.
5. Facebook Comments
Defendant challenges the admission of several comments to photos found on his
own Facebook page left by other people. These included remarks left on Facebook posts
such as “Wild Wild West,” which according to Shelton, refers to West La Loma; “I see
you, west, 2100,” West and 2100 referring to West La Loma; “2100”; “PJ West La
Loma,” PJ being defendant’s street name; “that’s two 747 big bombers,” meaning “it’s
two influential individuals. A big deal is what it’s saying. It’s not t[w]o little guys
within the gang. They are 747 bombers. They are a big thing”; and “What up, Ru,” “Ru”
being a greeting short for Piru. Defendant does not offer specific arguments relevant to
this material, and we will not supply them. We do not view these comments as case-
specific hearsay and they certainly are not testimonial. These items were not
inadmissible under Sanchez.

6. Defendant’s Contacts with Law Enforcement in the Presence of East
Side Piru Gang Members
Defendant complains about Shelton’s testimony concerning the fact that he had
been contacted by law enforcement no fewer than 21 times in recent years in the presence
of other gang members. Because this testimony involved defendant, an individual
involved in the case being tried, it was case-specific. (Sanchez, supra, 63 Cal.4th at
p. 676.) Indeed, the Sanchez court expressly found similar evidence in that case to be
case-specific hearsay and testimonial. (Id. at pp. 673, 674, 696-698.) Shelton did not
testify that he personally contacted defendant in the company of other validated gang
members 21 or more times, and thus, the testimony was hearsay. Further, it cannot be
said on this record that this testimony did not constitute testimonial hearsay. The
prosecution did not satisfy its burden of proving that the hearsay was nontestimonial.

41
(see Wright, supra, 497 U.S. at p. 816.) We shall discuss prejudice in part II.D. of the
Discussion, post.
7. Information from Jail Incident Reports
Defendant contends Shelton’s testimony about the “contents of a June 2015 report,
and a July 2015 report made by officers at” RCCC was testimonial hearsay. Shelton
discussed an “informational report” completed by RCCC officers which stated that
defendant and another individual, both of whom were validated East Side Pirus, “were
stealing from other inmates and ordering them or having them assaulted.” In another
instance, defendant and several other inmates were involved in a jail fight in which
defendant and several other individuals, many of whom were validated East Side Pirus,
“assaulted another individual.”
This testimony involved case-specific facts, as defendant was involved in each
incident and the purpose of the testimony was to demonstrate his involvement and, by
extension, the fact that he was an active East Side Piru member. It appears that Shelton
had no personal knowledge of or involvement with these incidents, so his testimony was
hearsay. It further appears that Shelton’s testimony concerning these reports constituted
testimonial hearsay and the prosecution did not satisfy its burden of proving that the
evidence was nontestimonial. (See Wright, supra, 497 U.S. at p. 816.) The trial court
erred in admitting this testimony. Prejudice will be considered post.
D. Prejudice
1. Harmless Error Standard
Defendant asserts that he was prejudiced by the court’s errors in admitting the
testimony discussed ante, and that the People cannot establish that the error was harmless
beyond a reasonable doubt under the standard of Chapman v. California (1966) 386 U.S.
18, 24 [17 L.Ed.2d 705] (Chapman). “Confrontation clause violations are subject to
federal harmless-error analysis under” Chapman. (People v. Livingston (2012) 53
Cal.4th 1145, 1159 (Livingston); People v. Geier (2007) 41 Cal.4th 555, 608 (Geier); see

42
Sanchez, supra, 63 Cal.4th at pp. 670-671, 698 [assessing prejudice resulting from
admission of testimonial hearsay under Chapman].)
Since Chapman, our high court has “ ‘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.’ ” (Geier, supra, 41 Cal.4th at p. 608.) “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?’ ” (Ibid.; accord Livingston, supra, 53 Cal.4th at p. 1159.)
2. Predicate Offense Involving Defendant
We have concluded that Shelton’s testimony supporting the predicate offense
involving defendant was erroneously admitted. The record does not include a certified
record of this conviction. Consequently, there was no admissible evidence supporting
this predicate offense.
However, it is well-settled that the charged offense can serve as one of the two
statutorily required predicate offenses. (People v. Tran (2011) 51 Cal.4th 1040, 1046;
People v. Olguin (1994) 31 Cal.App.4th 1355, 1383; Gardeley, supra, 14 Cal.4th at
p. 625; People v. Bragg (2008) 161 Cal.App.4th 1385, 1400.) The charged offenses, to
which Shelton was a percipient witness and for which defendant was convicted, and the
predicate offense involving Robinson, are sufficient to serve as the required predicate
offenses and support the true findings on the gang enhancement allegations.
Thus, had the jury not been informed of the testimonial hearsay underlying the
predicate offense involving defendant, the jury still would have concluded that the
prosecution proved the “pattern of criminal gang activity” element of the gang
enhancement allegation based on the predicate offense involving Robinson and the

43
charged offenses.16 The error was thus harmless beyond a reasonable doubt. (Chapman,
supra, 386 U.S. at p. 24.)

3. Defendant’s Contacts with Law Enforcement in the Presence of East
Side Piru Gang Members and Information from Jail Incident Reports
We have little difficulty in determining that the erroneous admission of Shelton’s
testimony concerning law enforcement contacts with defendant in the presence of other
gang members and his testimony about the jail incident was harmless beyond a
reasonable doubt for purposes of establishing the gang enhancement. We need not
marshal the relevant admissible evidence again. Instead, we point to part I.C of our
Discussion, ante, in which we concluded the evidence discussed therein constituted
substantial evidence to support the gang enhancement allegation true findings. Given that
compelling evidence, we further conclude it “ ‘is clear beyond a reasonable doubt that a
rational jury would have reached the same verdict absent the error[s].’ ” (Livingston,
supra, 53 Cal.4th at p. 1159, quoting People v. Loy (2011) 52 Cal.4th 46, 69-70; accord
Geier, supra, 41 Cal.4th at p. 608.)

III. Admission of Assertedly Inflammatory,
Excessive, and Marginally Relevant Gang Evidence
A. Defendant’s Contentions
Defendant asserts that the admission of excessive, highly inflammatory,
prejudicial, and only marginally relevant gang evidence violated his right to due process
and a fair trial. Defendant acknowledges that the prosecution had to offer evidence to
prove the gang enhancement allegations, but he asserts that the evidence presented by the
prosecution was “overkill.” Defendant contends the relevance of much of the evidence
was substantially outweighed by its prejudicial effect, its cumulative nature, and its

16 Whether the introduction of the evidence concerning the predicate offense committed
by defendant prejudiced him on Evidence Code section 352 grounds will be discussed in
part III. of the Discussion, post.

44
inflammatory character. And he argues that the prejudicial nature of this evidence was
not cured by jury instructions.17
B. Forfeiture
The People assert that defendant forfeited this issue by failing to object to the
evidence during trial. The People argue that defendant’s standing objection was limited
to Shelton’s testimony “that what [defendant] ‘was doing this particular day was for the
benefit of this gang.’ ” In his reply brief, defendant asserts that his written motion was
sufficient to bring his Evidence Code section 352 contention to the trial court’s attention.
In his in limine motion to preclude aspects of Shelton’s testimony, defendant did
raise Evidence Code section 352 in the section objecting to the introduction of facts and
findings unless testified to by its source. Defendant asserted that there would be no
probative value to allowing Shelton to testify concerning the hearsay bases for his
opinion as to defendant’s gang status, “and the prejudice of trying a case in which the
jury hears an onslaught of statements cherry-picked and characterized by Detective
Shelton is manifest.”
We shall assume, without deciding, that defendant’s written motion was sufficient
to preserve his objection to Shelton’s testimony on Evidence Code section 352 grounds.
(See generally People v. Morris (1991) 53 Cal.3d 152, 187-190, disapproved on another
ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [a motion in limine can be
sufficient to preserve an issue where the requirements of Evidence Code section 353 are
satisfied].) However, defendant did not raise Evidence Code section 1101 or make any
arguments clearly implicating a character evidence objection or that section. Because
defendant objected only on the ground that the proposed evidence was not probative and

17 Because, in reference to much of the challenged evidence, we proceed directly to
prejudice, we need not address defendant’s contention that the instructions did not cure
the alleged errors.

45
was unduly prejudicial under Evidence Code section 352, he has forfeited any claim he
makes here that the trial court admitted this evidence in violation of Evidence Code
section 1101, subdivision (a). (People v. Doolin (2009) 45 Cal.4th 390, 437 (Doolin).)

C. Pertinent Evidence Code Sections, the Standard of Review
and the Standard for Harmless Error
“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.)
“ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a
witness or hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.” (Evid. Code,
§ 210.) “The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352.) We review a trial court’s
evidentiary rulings under Evidence Code sections 352 for abuse of discretion. (Doolin,
supra, 45 Cal.4th at p. 437.)
Although defendant asserts that the applicable standard of review is the Chapman
“harmless beyond a reasonable doubt” standard, “the application of ordinary rules of
evidence like Evidence Code section 352 does not implicate the federal Constitution, and
thus we review such allegations of error under the ‘reasonable probability’ standard of”
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Marks (2003) 31
Cal.4th 197, 226-227; accord People v. Trujeque (2015) 61 Cal.4th 227, 280.) Under
Watson, “ ‘defendant must show it is reasonably probable a more favorable result would
have been obtained absent the error.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 955
(Beltran).) “Further, the Watson test for harmless error ‘focuses not on what a reasonable
jury could do, but what such a jury is likely to have done in the absence of the error under
consideration. In making that evaluation, an appellate court may consider, among other
things, whether the evidence supporting the existing judgment is so relatively strong, and

46
the evidence supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected the result.’ ”
(Id. at p. 956.)
D. Analysis
1. The Challenged Testimony
The specific evidence defendant raises in this argument is Shelton’s testimony
regarding: the 2011 predicate offense involving defendant; defendant was found in the
company of other validated gang members “[n]o less than 21 times between 2010 and his
contact when he was arrested for this case”; the contents of the RCCC reports, as testified
to by Shelton, stating that, while he was incarcerated awaiting trial, defendant had stolen
from other inmates and had ordered the assault of other inmates; and evidence that
defendant was involved with several other inmates, a number of whom were validated
East Side Piru gang members, in an assault of another inmate. Defendant also raises the
jail phone conversation in which he indicated that he was about to take a fellow gang
member “off the set,” and in reference to whom he remarked, “Air It Out Republic,” “put
that on mir, bitch. Put that on little republic,” and “I’m putting that on mir,” which
Shelton testified meant to do a shooting. According to defendant, all of this evidence
“should have been excluded because these instances of [defendant’s] alleged violent
conduct were irrelevant and inflammatory and were likely misused by the jury to convict
[defendant] on the gang enhancements.”
As we discussed in part II. of the Discussion, ante, most of this evidence was
improperly admitted due to its testimonial hearsay character. Because we have
concluded that the evidence should have been precluded on these grounds, we need not
make a separate determination as to whether that evidence was also improperly admitted
because the trial court assertedly abused its discretion under Evidence Code section 352.
We can instead turn directly to the question of prejudice.

47
 2. Reference to Defendant being in the Presence of Gang Members 21 Times
Given the admissible evidence establishing defendant’s standing in the gang and
his gang activities, including his own statements in the jail phone conversations and his
Facebook account, an inference could be drawn without Shelton’s reference to the 21
times law enforcement had found defendant in the presence of East Side Piru gang
members that defendant had indeed been in the presence of his fellow gang members on
multiple occasions. Thus, defendant has not established a reasonable probability that the
admission of this evidence affected the result.
3. Jail Phone Conversation Regarding a Gang Member not in Good Standing
Defendant’s jail phone conversation in which he discussed the standing of another
gang member and what defendant intended to do about him was a party admission (Evid.
Code, § 1220), admissible subject to defendant’s Evidence Code section 352 objection.
The prosecution’s theory of the case, and specifically in reference to the gang
enhancement allegations, was that defendant was an “upper echelon” member of the East
Side Pirus, and that, as Shelton put it, “[i]f you have a gang member who is well known
within the gang, well known by members outside of a gang, well known within the
community, everything he does is going to have greater weight to how the gang is
perceived . . . .” The prosecutor in her initial closing argument repeatedly emphasized
defendant’s high rank in the gang, that everything he did was for his gang, and that he
was enhancing his stature by selling drugs and making money for “his empire.” The
prosecutor’s reference to defendant’s “empire” repeated the word defendant used in one
of the jail phone conversations to describe his gang related drug operation.
We conclude the evidence concerning this jail phone conversation was relevant to
the prosecution’s theory of the case. It demonstrated that defendant was, in fact, a high-
ranking member of the gang, such that he had authority to decide who was in good
standing with the gang and what to do about someone who was not. Because this
evidence helped prove defendant’s status in the gang, which tended to prove the gang

48
enhancement allegations, this evidence was relevant (Evid. Code, § 210) and, except as
otherwise provided by statute, admissible (Evid. Code, § 351).
We disagree with defendant’s contention that the evidence of this phone call
should have been excluded under Evidence Code section 352. “Evidence is not
inadmissible under [Evidence Code] section 352 unless the probative value is
‘substantially’ outweighed by the probability of a ‘substantial danger’ of undue prejudice
or other statutory counterweights. Our high court has emphasized the word ‘substantial’
in [Evidence Code] section 352. [Citations.] [¶] Trial courts enjoy ‘ “broad discretion” ’
in deciding whether the probability of a substantial danger of prejudice substantially
outweighs probative value. [Citations.] A trial court’s exercise of discretion ‘will not be
disturbed except on a showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ”
(People v. Holford (2012) 203 Cal.App.4th 155, 167-168 (Holford).)
The potential prejudice presented by this evidence, according to defendant, was
that it described violent conduct, was inflammatory, and would tempt the jury to find the
gang enhancement allegations true on improper bases. However, there was no evidence
that anything was actually done to the wayward gang member. In our view, the evidence
was no more inflammatory than other admissible gang evidence in general. We conclude
that the probative value of this evidence was not substantially outweighed by the
probability that its admission would create a substantial danger of undue prejudice.
(Evid. Code, § 352; Holford, supra, 203 Cal.App.4th at pp. 167-168.)
Defendant principally relies on People v. Killebrew (2002) 103 Cal.App.4th 644
(Killebrew), disapproved on other grounds in Vang, supra, 52 Cal.4th at pages 1047-1049
and footnote 3. In Killebrew, the court first determined that certain gang expert opinion
testimony was improperly admitted because the expert “testified to the subjective
knowledge and intent” of certain alleged gang members by testifying that each of the
alleged gang members knew there was a gun in one of the cars and jointly possessed the

49
gun with every person in each of the three cars for their mutual protection. (Killebrew, at
p. 658.) The court in a separate discussion part went on to address the bases for the
expert’s opinion, noting that the expert, Darbee, opined that each of the 12 men arrested
was a gang member, “and stated that he based his opinion on review of criminal records,
Bakersfield Police Department records, photographs of the men, the color of the clothing
they wore that night, the people with whom they associated, his training and experience,
and conversations with gang and nongang members of the community. Darbee then
spent over 100 pages of transcript explaining in detail why he believed each man was a
gang member. This testimony varied from convictions, to arrests without convictions, to
pure speculation.” (Id. at p. 659.) The court highlighted what it found to be particularly
egregious testimony about a juvenile containing numerous allegations not supported by
evidence of any arrests, trials, convictions, or juvenile petition true findings. (Ibid.) The
court concluded: “The trial court abused its discretion by allowing Darbee to testify at
such great length about material that inflamed the jury’s passions and had little or no
probative value.” (Ibid.)
Relevant to the jail phone conversation at issue, virtually none of these concerns
are present. The statements were made by defendant himself, and did not constitute
unsubstantiated accusations or speculation. The evidence was relevant, and it was not
particularly inflammatory. We conclude that the trial court did not abuse its discretion in
admitting that evidence. (Doolin, supra, 45 Cal.4th at p. 437.) Moreover, even if it was
error under Evidence Code section 352 to allow this testimony, we conclude any such
error is harmless. The other evidence establishing the charged offenses and the gang
enhancement allegations was abundant and the violence implied in this conversation did
not tip the balance.
4. The Remaining Challenged Testimony Concerning Violence
Considering the relative strength of the admissible evidence supporting the jury’s
verdicts on the charged offenses and the true findings on the gang enhancements and the

50
lack of any evidence supporting a different outcome, we conclude that there is no
reasonable probability that if the jury had not heard Shelton’s testimony concerning the
predicate offense involving defendant and his activities while incarcerated pending trial,
defendant would have achieved a more favorable result. (Beltran, supra, 56 Cal.4th at
p. 956; Watson, supra, 46 Cal.2d at p. 836.) None of the testimony about which
defendant complains here was crucial to the jury’s determinations as to the charged
offenses or the gang enhancements. We conclude that any error in admitting this
evidence was harmless.

IV. Defendant Was Not Denied the Effective Assistance of Counsel
Based on the Failure to Request CALCRIM No. 1403
A. Additional Background
At one point during Shelton’s testimony about the East Side Pirus and gangs in
general, the trial court interjected as follows: “When you have an expert, experts are
allowed to testify to what commonly referred to as hearsay testimony. This is a good
example just then of the detective said he wasn’t there at the meeting [of gang members],
he has been told about this type of meeting. [¶] And, so, for an expert, hearsay is
permitted as testimony, so if it helps to form the basis of the opinion. It’s not being
offered for the truth of the matter, but to formulate an opinion, the basis for the opinion.
[¶] I know that’s -- again, we are saying this to sort of folks not trained in the law, but it
has an evidentiary significance, and you will see that as we move along.”
At the conference on jury instructions, defendant’s trial counsel did not request
that the court instruct the jury with CALCRIM No. 1403.18

18 CALCRIM No. 1403 instructs: “You may consider evidence of gang activity only for
the limited purpose of deciding whether: [¶] [The defendant acted with the intent,
purpose, and knowledge that are required to prove the gang-related (crime[s]/ [and]
enhancement[s]/ [and] special circumstance allegations) charged(;/.)] [¶ [OR] [¶] [The
defendant had a motive to commit the crime[s] charged(;/.)] [¶] [OR] [¶] [The

51
 The trial court did instruct the jury with CALCRIM No. 303 on the limited
purposes of evidence in general, as follows: “During the trial, certain evidence was
admitted for a limited purpose. You may consider that evidence only for that purpose
and for no other.” The court then provided the jury with an example, stating, “For
example, when I instructed all of you that there was hearsay that was being testified to by
the gang expert, that that was to ultimately be considered for going to the basis of his
opinion, not for the truth of the matter. That is limited purpose evidence.”
B. Defendant’s Contentions
Defendant asserts that the trial court erred in failing to instruct the jury sua sponte
with CALCRIM No. 1403. He contends that this is the type of “extraordinary case” that
required the court to instruct the jury with CALCRIM No. 1403 sua sponte even though
there is ordinarily no duty to give this instruction absent a request. He asserts that, in the
absence of the limiting instruction, the jury was more likely to find the gang enhancement
allegations true regardless of whether the evidence actually established that the crimes
were gang-related.
C. Limiting Instructions, Duty to Instruct Sua Sponte, and Forfeiture
“A trial court has a sua sponte duty to ‘instruct on general principles of law that
are closely and openly connected to the facts and that are necessary for the jury’s
understanding of the case . . . .’ ” (People v. Blacksher (2011) 52 Cal.4th 769, 845-846,
quoting People v. Carter (2003) 30 Cal.4th 1166, 1219.)

defendant actually believed in the need to defend (himself/herself)(;/.)] [¶] [OR] [¶]
[The defendant acted in the heat of passion(;/.)] [¶] [OR] [¶] [ .] [¶] [You may also consider this evidence when you
evaluate the credibility or believability of a witness and when you consider the facts and
information relied on by an expert witness in reaching his or her opinion.] [¶] You may
not consider this evidence for any other purpose. You may not conclude from this
evidence that the defendant is a person of bad character or that (he/she) has a disposition
to commit crime.”

52
 “ ‘When evidence is admissible as to one party or for one purpose and is
inadmissible as to another party or for another purpose, the court upon request shall
restrict the evidence to its proper scope and instruct the jury accordingly.’ ” (People v.
Hernandez (2004) 33 Cal.4th 1040, 1051 (Hernandez), quoting Evid. Code, § 355.)
“Thus, although a court should give a limiting instruction on request, it has no sua sponte
duty to give one.” (Hernandez, at p. 1051.)
Defendant did not request that the trial court instruct the jury with CALCRIM No.
1403. Thus, as a general matter, defendant forfeited his contention. (People v. Hajek and
Vo (2014) 58 Cal.4th 1144, 1246, disapproved on another ground in People v. Rangel
(2016) 62 Cal.4th 1192, 1216 [trial court was under no sua sponte duty to give an
instruction as to limited purpose of evidence; the defendant’s failure to request such an
instruction forfeits the claim of error on appeal]; People v. Clark (2011) 52 Cal.4th 856,
942 (Clark) [failure to request instruction concerning limited purpose of expert testimony
resulted in forfeiture].)
As defendant states, our high court in People v. Collie (1981) 30 Cal.3d 43
(Collie) recognized “a possible exception” to the general rule that a court has no sua
sponte duty to instruct on the limited use of evidence. (Hernandez, supra, 33 Cal.4th at
pp. 1051-1052.) That possible exception may arise “in ‘an occasional extraordinary case
in which unprotested evidence . . . is a dominant part of the evidence against the accused,
and is both highly prejudicial and minimally relevant to any legitimate purpose.’ ” (Ibid.,
quoting Collie, at p. 64, italics added.) Collie was not a gang case. It involved a
domestic violence murder where the defendant complained the trial court should have
instructed the jury sua sponte on the limited admissibility of evidence of previous assaults
committed by defendant against the victim, his wife. (Collie, at p. 63.)19

19 Collie predated the STEP Act by a decade and predated Evidence Code section 1109
concerning the admissibility of prior domestic violence evidence by some 16 years.

53
 The gang evidence presented by the prosecution here was, indeed, a “dominant
part of the evidence against the accused . . . .” (Collie, supra, 30 Cal.3d at p. 64), but this
was permissible given the elements of the gang enhancement. In our view, like
Hernandez, this is not the “extraordinary case” contemplated in Collie. (See Hernandez,
supra, 33 Cal.4th at pp. 1051-1052.) While the gang evidence was, indeed, a focal point
of the prosecution’s case, the subject evidence was not “minimally relevant to any
legitimate purpose.” (Ibid.) “All of the gang evidence was relevant to the gang
enhancement, which was a legitimate purpose for the jury to consider it. Accordingly,
the trial court must give a limiting instruction on evidence admitted to support the gang
enhancement only on request.” (Id. at p. 1052, fn. omitted.)
Additionally, the gang evidence was relevant to defendant’s motive for possessing
the firearm and the two controlled substances for sale. Evidence of gang membership,
defendant’s position in the gang, whether defendant committed his crimes for the benefit
of or in association with a gang, and with the specific intent to promote, further, or assist
in any criminal conduct by gang members, were matters central to the prosecution’s case.
(See People v. Woods (1991) 226 Cal.App.3d 1037, 1054 [evidence of gang membership
critical to prove motive of retaliating for death of fellow gang member and intent to kill,
and therefore was central to the case; the court had no sua sponte duty to give instruction
limiting the jury to only consider evidence of appellant’s past gang membership for
purposes of proving intent to kill or motive].)
Moreover, we do not consider the subject evidence to be “highly prejudicial.” In
discussing prejudice within the meaning of Evidence Code section 352, our high court
has repeatedly stated, “ ‘[t]he prejudice which . . . Evidence Code section 352 is designed
to avoid is not the prejudice or damage to a defense that naturally flows from relevant,

While we address the merits of defendant’s argument based on Collie, we do not endorse
the continued viability of Collie after the enactment of these statutes.

54
highly probative evidence.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 958.) Rather,
undue prejudice arises with evidence that “ ‘ “uniquely tends to evoke an emotional bias
against a party as an individual, while having only slight probative value with regard to
the issues.” ’ ” (People v. Jones (2012) 54 Cal.4th, 1, 61.) Again, the inadmissible
evidence was not any more inflammatory than the admissible gang evidence; it did not
uniquely evoke an emotional bias.
This not being the “extraordinary case” contemplated by Collie, the trial court had
no sua sponte duty to instruct the jury with CALCRIM No. 1403 in the absence of a
request. Thus, defendant forfeited the issue. (Clark, supra, 52 Cal.4th at p. 942.)
D. Ineffective Assistance of Counsel
Defendant contends that, if his contention has been forfeited, he was denied the
constitutionally effective assistance of counsel by his attorney’s failure to preserve the
issue. To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 696]
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma); People v.
Rogers (2016) 245 Cal.App.4th 1353, 1367 (Rogers).) “ ‘Surmounting Strickland’s high
bar is never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d
624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d
284, 297].) The reason why Strickland’s bar is high is because “[a]n ineffective-
assistance claim can function as a way to escape rules of waiver and forfeiture and raise
issues not presented at trial, and so the Strickland standard must be applied with
scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very
adversary process the right to counsel is meant to serve. [Citation.] . . . It is ‘all too
tempting’ to ‘second-guess counsel’s assistance after conviction or adverse sentence.’ ”
(Richter, at p. 105.)

55
 Where we can dispose of an ineffective assistance of counsel claim on the grounds
of prejudice, we need not address whether counsel’s performance was deficient. (In re
Fields (1990) 51 Cal.3d 1063, 1079; People v. Smith (2011) 198 Cal.App.4th 415, 428
[no need for the reviewing court to determine whether the failure to request a pinpoint
instruction was deficient because, even if it was, the failure to request the instruction did
not prejudice defendant].) To establish prejudice, “[i]t is not enough ‘to show that the
errors had some conceivable effect on the outcome of the proceeding.’ ” (Richter, supra,
562 U.S. at p. 104.) To show prejudice, defendant must show a reasonable probability
that he would have received a more favorable result had counsel’s performance not been
deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at
pp. 217-218.) “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.) “The
likelihood of a different result must be substantial, not just conceivable.” (Richter, at
p. 112, italics added; Rogers, supra, 245 Cal.App.4th at p. 1367; People v. Jacobs (2013)
220 Cal.App.4th 67, 75; In re M.P. (2013) 217 Cal.App.4th 441, 457, fn. 10.)
We conclude that there is not a reasonable probability that, if defense counsel had
requested CALCRIM No. 1403, defendant would have achieved a more favorable result.
V. Cumulative Prejudicial Error
Defendant asserts that the judgment should be reversed due to cumulative error.
According to defendant, the cumulative effect of multiple errors deprived him of his due
process right to a fair trial. We reject this contention.
The premise behind the cumulative error doctrine is that, while a number of errors
may be harmless taken individually, their cumulative effect requires reversal. (People v.
Bunyard (1988) 45 Cal.3d 1189, 1236-1237.) Any of the potential errors identified above
“were harmless, whether considered individually or collectively. Defendant was entitled
to a fair trial but not a perfect one.” (People v. Cunningham (2001) 25 Cal.4th 926,
1009.) We have concluded that certain of defendant’s claims of error are without merit.

56
In parts II. and III. of the Discussion, ante, we have found any error nonprejudicial. We
have reviewed all of defendant’s claims and find no cumulative prejudicial error
warranting reversal. Defendant was not deprived of a fair trial.
VI. In Camera Hearing and Evidence Code Sections 1040 and 1042
In its in limine motions, the prosecution sought to preclude the defense from
pursuing a certain line of questioning, stating that, if such questioning occurred, the
testifying detective would invoke the privilege under Evidence Code sections 1040 and
1042.20 During an evidentiary hearing held in limine, defense counsel was permitted to

20 Evidence Code section 1040 provides in pertinent part: “(a) As used in this section,
‘official information’ means information acquired in confidence by a public employee in
the course of his or her duty and not open, or officially disclosed, to the public prior to
the time the claim of privilege is made. [¶] (b) A public entity has a privilege to refuse to
disclose official information, and to prevent another from disclosing official information,
if the privilege is claimed by a person authorized by the public entity to do so and either
of the following apply: [¶] … [¶] (2) Disclosure of the information is against the public
interest because there is a necessity for preserving the confidentiality of the information
that outweighs the necessity for disclosure in the interest of justice . . . .”

Evidence Code section 1042, subdivision (d) provides in pertinent part: “(d) When, in
any . . . criminal proceeding, a party demands disclosure of the identity of the informant
on the ground the informant is a material witness on the issue of guilt, the court shall
conduct a hearing at which all parties may present evidence on the issue of disclosure.
Such hearing shall be conducted outside the presence of the jury, if any. During the
hearing, if the privilege provided for in Section 1041 is claimed by a person authorized to
do so or if a person who is authorized to claim such privilege refuses to answer any
question on the ground that the answer would tend to disclose the identity of the
informant, the prosecuting attorney may request that the court hold an in camera hearing.
If such a request is made, the court shall hold such a hearing outside the presence of the
defendant and his counsel. At the in camera hearing, the prosecution may offer evidence
which would tend to disclose or which discloses the identity of the informant to aid the
court in its determination whether there is a reasonable possibility that nondisclosure
might deprive the defendant of a fair trial. A reporter shall be present at the in camera
hearing. Any transcription of the proceedings at the in camera hearing, as well as any
physical evidence presented at the hearing, shall be ordered sealed by the court, and only
a court may have access to its contents. The court shall not order disclosure, nor strike
the testimony of the witness who invokes the privilege, nor dismiss the criminal

57
pose several questions to Shelton concerning what information, if any, he had that led
him to encounter defendant on the night of his arrest. Shelton invoked the Evidence
Code section 1040 and 1042 privilege as to each of these questions.
Thereafter, the trial court conducted an in camera hearing with only Shelton.21
The trial court found that Shelton properly invoked the Evidence Code sections 1040 and
1042 privilege and ruled that the nondisclosure of information revealed during the in
camera hearing would not deprive defendant of a fair trial. The court denied defendant’s
oral motion for disclosure of information based on Evidence Code sections 1040 and
1042.
Defendant now requests that we review the transcript of the in camera hearing to
determine whether Shelton was entitled to withhold evidence pursuant to Evidence Code
sections 1040 and 1042, whether the evidence was discoverable, whether the court
properly concluded that the material was privileged, whether the evidence should have
been disclosed to the defense, and whether it contained Brady22 material. The People do
not oppose defendant’s request.
“ ‘A public entity has a privilege to refuse to disclose official information’
[citation] if ‘[d]isclosure of the information is against the public interest because there is
a necessity for preserving the confidentiality of the information that outweighs the
necessity for disclosure in the interest of justice . . . .’ ” (People v. Suff (2014) 58 Cal.4th
1013, 1059, quoting Evid. Code, § 1040, subd. (b).) A trial court has discretion to deny

proceeding, if the party offering the witness refuses to disclose the identity of the
informant, unless, based upon the evidence presented at the hearing held in the presence
of the defendant and his counsel and the evidence presented at the in camera hearing, the
court concludes that there is a reasonable possibility that nondisclosure might deprive the
defendant of a fair trial.”
21 The prosecutor was not present during the in camera hearing.
22 Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady).

58
disclosure “when the necessity for confidentiality outweighs the necessity for
disclosure . . . .” (Suff, at p. 1059.) “The trial court’s ruling is reviewed under the abuse
of discretion standard.” (Ibid.)
Regarding the materiality of the assertedly privileged information, courts have
held that “ ‘[T]he test of materiality is not simple relevance; it is whether the
nondisclosure might deprive defendant of his or her due process right to a fair trial.’ ”
(People v. Lewis (2009) 172 Cal.App.4th 1426, 1441; People v. Garza (1995) 32
Cal.App.4th 148, 153.) As defendant appears to concede, if a court concludes that
information should have been disclosed, the failure to do so is not prejudicial unless there
was a reasonable probability of a different outcome had the evidence been disclosed.
(See Brady, supra, 373 U.S. at p. 87; see Kyles v. Whitley (1995) 514 U.S. 419, 433-434
[131 L.Ed.2d 490]; People v. Gaines (2009) 46 Cal.4th 172, 183-184 [applying the Brady
standard to determine prejudice for failure to provide Pitchess discovery].)
We have reviewed the reporter’s transcript of the in camera hearing and conclude
that the trial court did not abuse its discretion in rejecting disclosure of the information
defendant sought. We further conclude that there was not a reasonable probability of a
different outcome had the information been disclosed.
VII. Fines and Fees
In reviewing this case, we have noticed an error on the abstract of judgment. In
sentencing defendant, the trial court orally imposed $2,100 for both the restitution fine
(§ 1202.4, subd. (b)) and the parole revocation restitution fine (§ 1202.45). However, the
abstract of judgment incorrectly sets forth the amounts imposed for each of these fines as
$1,200. “[T]he abstract of judgment is not itself the judgment of conviction, and cannot
prevail over the court’s oral pronouncement of judgment to the extent the two conflict.”
(People v. Delgado (2008) 43 Cal.4th 1059, 1070.) Thus, these amounts must be
corrected on the abstract of judgment.

59
 DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting
the $2,100 orally imposed for the restitution fine (§ 1202.4, subd. (b)) and the parole
revocation restitution fine (§ 1202.45). The trial court is directed to forward a certified
copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.

/s/
MURRAY, J.

We concur:

/s/
RAYE, P. J.

/s/
RENNER, J.

60