People v. Guevara CA2/5

Filed 10/19/20 P. v. Guevara CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B300821

Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BA446766)

v.

HENRY GUEVARA,

Defendant and
Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Leslie A. Swain, Judge. Affirmed, with
instructions.
James Koester, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Joseph P. Lee and Jaime
L. Fuster, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________

The jury found defendant and appellant Henry
Guevara guilty of two counts of attempted premeditated and
deliberate murder. (Pen. Code, §§ 187/664 [counts 1 and
2].)1 The jury found true the allegation that the offenses
were committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C)), but the jurors were unable to
reach a verdict regarding the allegation that Guevara
personally used and discharged a firearm within the
meaning of section 12022.53, subdivision (c).2
Guevara was sentenced to life with the possibility of
parole in count 1, plus a consecutive sentence of 10 years for
the gang enhancement. In count 2, Guevara was sentenced
to a consecutive term of life with the possibility of parole.

1 All further statutory references are to the Penal Code
unless otherwise indicated.

2 Guevara was also tried for charges in connection with
a second incident, but the jury found him not guilty as to
those counts.

2
The trial court exercised its discretion to strike the gang
allegation in connection with count 2.3
On appeal, Guevara makes several arguments to
support his contention that there was insufficient evidence
to support the jury’s true finding on the gang enhancement.
Specifically, Guevara argues that there was not substantial
evidence that the 41st Street gang engaged in a “pattern of
criminal activity” because: (1) officer testimony that the
individuals who were convicted of the predicate crimes were
members of the same gang as Guevara was “generalized and
unsupported,” (2) the gang expert’s testimony included
testimonial hearsay under People v. Sanchez (2016) 63
Cal.4th 665 (Sanchez), and (3) the official court documents
offered to prove the predicate offenses were inadmissible for
the purpose of proving that the offenses were committed
within three years of each other. Guevara further argues
that the 10-year consecutive term imposed under section
186.22, subdivision (b)(1)(C) in count 1 was unauthorized
and must be corrected.
The people concede that the gang enhancement
sentence must be corrected, but otherwise contest the
substantive contentions.
We agree with the parties that the trial court erred in
imposing the 10-year gang enhancement under section
186.22, subdivision (b)(1)(C), rather than the 15-year

3 At the sentencing hearing, the court dismissed two
prior prison term allegations (§ 667.5, subd. (b)), with the
agreement of the prosecution.

3
minimum parole eligibility date under section 186.22,
subdivision (b)(5). (People v. Lopez (2005) 34 Cal.4th 1002,
1010–1011 (Lopez).) We order that the abstract of judgment
be modified accordingly, but otherwise affirm the trial
court’s judgment.

FACTS

Incidents and Investigation

On the morning of May 14, 2016, Ramon Vara and
Carlos Venegas were heading home in Venegas’s Escalade.
Vara was driving and Venegas was seated in the rear
passenger seat. While they were stopped at a traffic light,
Venegas noticed Guevara staring at them from a green
Honda. Guevara was the driver, the front passenger was a
female, and there was a toddler in the rear passenger seat.
Guevara began to follow Vara and Venegas, but at some
point, they lost sight of him. However, as Vara was about to
make a left turn into their driveway, they noticed Guevara
again. Within seconds, Guevara stretched his arm out of the
driver’s window and began shooting at the Escalade. Vara
immediately turned into the driveway and sped to the back
of the building, while Venegas ducked down. Guevara fired
between seven to eight shots, with five shots hitting the
Escalade. Neither Vara nor Venegas was injured. Although
Venegas did not want to call the police, Vara called 911 to
report the shooting.

4
 On May 16, 2016, two days after the shooting, Venegas
met with Los Angeles Police Department (LAPD) Detective
Dennis Walden, who showed him a six-pack photographic
line up. Venegas selected Guevara’s photograph and
indicated that he was the person who shot at him. Detective
Walden then showed Venegas a picture of a car, which
Venegas identified as the car Guevara was driving on the
day of the shooting. Guevara was arrested later that day.
Both Venegas and Vara had seen Guevara previously.
Approximately one year before the shooting, Venegas
encountered Guevara at Gilbert Lindsey Park. Venegas was
at the park with a friend who was a Hang Out Boys (HOB)
gang member. Guevara kicked Venegas out of the park
because he thought Venegas was also a HOB member.
A few months before the May 14, 2016 shooting,
Venegas and Vara were at a shop having the Escalade’s
brakes repaired. Guevara slowly approached in a white car
and asked Vara, “Where you from, Dude?” To which Vara
responded, “Nowhere. I don’t gang bang.” Guevara then
asked, “Are you from HOB?” Vara responded, “I don’t gang
bang. I work for the fire department.” Guevara then said
“Fuck HOB” and “Fuck Fleas” and left.
The LAPD had conducted three field investigations
(F.I.) of Guevara, in which he was identified as a 41st Street
gang member. On May 21, 2010, Officer Jesse Cardenas and
his partner conducted an F.I. of Guevara. Guevara provided
information regarding his tattoos, moniker, and gang
affiliation. On July 17, 2015, Officer Derrick Ybarra

5
completed an F.I. card documenting his contact with
Guevara. Guevara informed Officer Ybarra that his moniker
was “Rascal” and he was affiliated with the 41st Street gang.
He also described his tattoos. On December 8, 2015, Officer
Luis Lopez and his partner conducted a third F.I. in which
Guevara again provided his gang affiliation and moniker.

Gang Expert Testimony

LAPD Officer Richard Pacheco testified as the People’s
gang expert. He had been a peace officer for approximately
seven years and was currently assigned to the Newton
Division’s gang enforcement detail. Pacheco participated in
gang training at the academy, and with the California
Criminal Gang Task Force. Throughout his career, he
worked with current and former gang officers. During his
assignments as a probation officer and at the Downtown
Metropolitan Jail, Officer Pacheco regularly interacted with
hundreds of gang members. While working at the Southeast
and Newton Divisions, he was involved in hundreds of gang-
related investigations and arrests. Officer Pacheco had
testified as a gang expert on three occasions.
As part of the gang enforcement detail, Officer Pacheco
handled all gang-related crimes, which included robberies,
shootings, assaults with deadly weapons, murders, and other
crimes in which a gang member was a suspect or a victim.
Additionally, he deciphered gang graffiti, interrogated gang
members, and attempted to identify gang members through

6
F.I. Officer Pacheco described F.I.’s as consensual
interactions between police officers and detained persons.
He explained that in an F.I., an officer asks questions from
an F.I. card, and records the person’s answers. Information
that can be found in an F.I. card includes a person’s name,
physical description, birth date, driver’s license number,
tattoo description, monikers, and gang affiliations.
Officer Pacheco testified regarding certain aspects of
gang culture. He explained that a “moniker” is a gang
member’s nickname, the phrase “where you from” is used by
gang members to intimidate and to determine whether a
person is from another gang, and the term “hood” is gang
vernacular for a gang’s territory. He also stated that
although gang members are eager to disclose their gang
affiliation, they do not discuss the gang’s leadership.
There are approximately 30 to 40 gangs within the
geographical area covered by LAPD’s Newton Division.
Officer Pacheco was familiar with approximately 10 of these
gangs, including 41st Street and HOB. Officer Pacheco
stated that 41st Street is a local street gang that has been in
existence since the 1980’s. It has approximately 70 members
and they use the symbols “41”, “CU,” and “FF” as identifiers.
The gang’s primary activities consist of murder, attempted
murder, assault with a deadly weapon, vandalism, narcotics
sales, grand theft auto, and robbery.
The 41st Street and HOB gangs were initially allies,
but became rivals in the 1990’s. The gangs’ territories are
adjacent to one another. However, there is an area where

7
their territories overlap that both gangs claim as their own.
41st Street members refer to HOB members as “dummies”
and “fleas,” and the feud between the gangs is generally
shown through competing graffiti. Officer Pacheco had
heard and seen 41st Street members tag property with the
phrase “Fuck Fleas.”
Officer Pacheco spoke to Guevara personally on the
night Guevara was arrested. Guevara admitted to Officer
Pacheco that he was a 41st Street gang member, and Officer
Pacheco observed “CU” and “FF” tattooed on Guevara’s body.
After the prosecutor presented Officer Pacheco with a
hypothetical that tracked the facts of the incident that
occurred on May 14, 2016, in this case, Officer Pacheco
opined that the shooting was committed for the benefit or, at
the direction of, or in association with a criminal street gang.
Officer Pacheco testified that he was familiar with
Aaron Herrera, who was convicted of murder and attempted
murder, and German Hernandez, who was convicted of
assault with a deadly weapon. Officer Pacheco opined that
both were 41st Street gang members. On cross examination,
Officer Pacheco testified that Herrera’s moniker was “Goofy”
and Hernandez’s moniker was “Solo.”

8
 DISCUSSION

Sufficiency of the Evidence

Guevara makes three arguments regarding the
sufficiency of the evidence offered to prove that the 41st
Street gang engaged in a pattern and practice of criminal
activity through evidence of predicate crimes committed by
41st Street gang members. He challenges the testimony of
gang expert Officer Pacheco on the ground that his
testimony was not sufficiently specific and on the ground
that it included testimonial hearsay in violation of Sanchez,
supra, 63 Cal.4th 665. Guevara also challenges the
admission of certified superior court records for the purpose
of establishing the dates on which the predicate offenses
noted by Officer Pacheco were committed. All three of
Guevara’s contentions lack merit.

Legal Principles

“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. (People v.
Wilson (2008) 44 Cal.4th 758, 806.) We presume every fact

9
in support of the judgment the trier of fact could have
reasonably deduced from the evidence. (Ibid.) 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. (People v. Lindberg (2008) 45 Cal.4th 1,
27.) ‘A reviewing court neither reweighs evidence nor
reevaluates a witness’s credibility.’ (Ibid.)” (People v.
Albillar (2010) 51 Cal.4th 47, 59–60.)
“[S]ection 186.20 et seq., also known as the California
Street Terrorism Enforcement and Prevention Act (the
STEP Act or Act), was enacted in 1988 to combat a dramatic
increase in gang-related crimes and violence. The Act
imposes various punishments on individuals who commit
gang-related crimes—including a sentencing enhancement
on those who commit felonies ‘for the benefit of, at the
direction of, or in association with any criminal street gang.’
(Pen Code, § 186.22, subd. (b) (section 186.22(b)), italics
added.)” (People v. Prunty (2015) 62 Cal.4th 59, 66–67,
fn. omitted (Prunty).) A group is a “‘criminal street gang’”
only if its “members individually or collectively engage in, or
have engaged in, a pattern of criminal gang activity.”
(§ 186.22, subd. (f).) A “‘pattern of criminal gang activity’
means the commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more” offenses
enumerated in the statute. (§ 186.22, subd. (e).) “These
offenses have generally been termed ‘predicate offenses’

10
(although the phrase does not appear in the statute), two or
more of which must be proved to have been committed by
gang members within a statutorily defined timeframe to
establish the gang as a ‘criminal street gang.’ [Citation.] . . .
Predicate offenses need not be gang-related ([People v.]
Gardeley [(1996) 14 Cal.4th 605], 610 [(Gardeley),
disapproved on other grounds in Sanchez, supra, 63 Cal.4th
at p. 686, fn. 13]), and proof of a conviction is unnecessary
(People v. Garcia (2014) 224 Cal.App.4th 519, 524).” (People
v. Thompkins (2020) 50 Cal.App.5th 365, 402–403
(Thompkins).) “[A]t least one of these offenses [must have]
occurred after the effective date of [section 186.22] and the
last of those offenses [must have] occurred within three
years after a prior offense.” (§ 186.22, subd. (e).) It is not
required that “the two or more persons committing the two
predicate crimes be gang members at the time the offenses
were committed.” (People v. Augborne (2002) 104
Cal.App.4th 362, 375 (Augborne).)

Proceedings at Trial

Outside the presence of the jury, defense counsel
objected to anticipated testimony by Officer Pacheco as
follows:
“In discussions with the People they had indicated that
in light of the Sanchez ruling, of course, with field
identification cards with Mr. Guevara, they’re not going to
attempt to admit those via the gang expert. However, they

11
are going to be admitting predicate priors to establish the
requirements of the Act in [section] 186[.]22. I’m aware of
the case law as it stands now and I’ll read this out for the
court reporter, People vs. [M]eraz, that’s [M]-E-R-A-Z, 6
Cal.App.5[th], 1162, has not gone so far as to say that a gang
expert can’t testify about, for instance, whether or not a
predicate prior was committed at the direction of, for the
benefit of or by members of a particular criminal street gang.
“That being said, there are a number of post[-]Sanchez
cases which say if you don’t object to what is a reasonable
foreseeable change in the law, your defendant isn’t entitled
to appellate relief. So I think the [M]eraz case is and the
Sanchez cases are going to be extended to preclude such
testimony.
“I know the law isn’t there at this time, but for that
purpose I’m objecting. I believe that admitting testimony
that is hearsay testimony nature [sic] used for the truth of
the matter asserted to establish the predicate priors in a
gang expert’s testimony, I think that is going to be --
eventually, we’re going to have clear case law that’s
inadmissible under both hearsay and Crawford [v.
Washington (2004) 541 U.S. 36 (Crawford)].
“And Crawford case law, I want the record to be clear
with the court’s permission, if we can note that objection as
[a] registered and standing objection unless the court simply
wishes I make it briefly at the time.”
The trial court accepted counsel’s standing objection.

12
 When trial re-commenced, the prosecutor questioned
Officer Pacheco regarding predicate offenses committed by
41st Street gang members:
“[Prosecutor:] Now, are you familiar with an
individual by the name of Aaron Herrera?
“[Officer Pacheco:] Yes.
“[Prosecutor:] And do you know Aaron Herrera to be a
documented 41st Street gang member?
“[Defense Counsel:] Objection, leading.
“The Court: Overruled.
“[Officer Pacheco:] Yes.
“[Prosecutor:] And has Aaron Herrera been convicted
of any gang related crimes that you’re aware of?
“[Officer Pacheco:] Yes.
“[Prosecutor:] Is there a particular conviction that
comes to mind or that you’re referencing?
“[Officer Pacheco:] Murder.
“[Prosecutor:] Your Honor, at this time I’d like to
introduce a certified docket relating to an Aaron Herrera, 26
pages in length relating to case number BA411218 with a
defendant of Aaron Herrera, showing a conviction on July
9th, 2015, for PC 187 subsection (a) murder, with a finding
of true the allegation that the crime was committed in
connection with a criminal street gang.
“And also, out of the same case, a conviction for
violating PC 664/187 subsection (a). That is attempted
murder using a firearm. And also, finding true as to that

13
crime that it was committed in connection with a criminal
street gang.”
The certified court records relating to Herrera’s arrests
were admitted into evidence.
The prosecutor then questioned Officer Pacheco
regarding German Hernandez:
“[Prosecutor:] And Officer Pacheco, are you familiar
with an individual by the name of German Hernandez?
“[Officer Pacheco:] Yes.
“[Prosecutor:] And do you know German Hernandez to
be a documented member of 41st Street?
“[Officer Pacheco:] Yes.
“[Prosecutor:] And has he been convicted of any crimes
that you are aware of?
“[Officer Pacheco:] Yes.
“[Prosecutor:] And what would that be?
“[Officer Pacheco:] I believe it was either ADW with a
firearm or it was an attempt murder.
“[Prosecutor:] Your Honor, at this time I would like to
introduce another certified docket as People’s 40. It is 21
pages in length. It relates to case number BA432809, relates
to a defendant by the name of German Hernandez and
shows a conviction for a violation of Penal Code section 245
subsection (a) subsection (2), assault with a deadly weapon.
That deadly weapon being a firearm and a finding with
respect to that crime that the crime was committed in
connection with a criminal street gang and has a conviction

14
date of April 19th, 2016. May it be so marked as People’s
40?
“The Court: Yes.”

“Generalized and Factually Unsupported” Gang
Expert Testimony

Guevara first contends that the evidence of the
predicate crimes was insufficient to support the gang
enhancement because the only evidence offered to establish
that Herrera and Hernandez were 41st Street gang members
was Officer Pacheco’s “generalized and factually
unsupported” testimony. Specifically, Guevara complains
that (1) Officer Pacheco did not testify regarding the basis
for his opinion that Herrera and Hernandez were 41st Street
gang members, (2) there was no evidence that Herrera and
Hernandez were 41st Street gang members at the time they
committed the predicate crimes or at that time that they
were convicted of those crimes, and (3) there was no evidence
that Herrera and Hernandez committed the predicate crimes
to benefit the 41st Street gang. The contentions lack merit.4

4 The People argue that Guevara forfeited these sub-
arguments by failing to raise them below. A defendant’s
failure to “‘make a timely and specific objection’ on the
ground asserted on appeal” forfeits his appellate arguments
based on the erroneous admission of the evidence. (See
People v. Demetrulias (2006) 39 Cal.4th 1, 20–21
(Demetrulias), citing People v. Partida (2005) 37 Cal.4th 428,
433–434 (Partida).) Here, defense counsel made a standing

15
 At trial, Officer Pacheco testified that he was familiar
with Herrera and Hernandez, and knew them to be
“documented” 41st Street gang members. The prosecutor did
not question Officer Pacheco regarding the source of this
knowledge, and defense counsel did not attempt to clarify
the issue on cross-examination. Guevara argues that the
prosecutor’s use of the word “documented” indicates that the
officer’s knowledge was not personal.
We disagree. The word “documented” simply indicates
that someone documented Herrera and Hernandez’s 41st
Street gang membership. That does not preclude the
possibility that Officer Pacheco himself documented the
men’s gang affiliation, and there is ample evidence contained
in the record to support that possibility. Officer Pacheco
testified that he had been a peace officer for seven years,

objection to “testimony that is hearsay testimony nature [sic]
used for the truth of the matter asserted to establish the
predicate priors in a gang expert’s testimony, I think that is
going to be -- eventually, we’re going to have clear case law
that’s inadmissible under both hearsay and Crawford.” We
find the objection to be sufficiently specific to preserve the
related issues of whether expert testimony based on other
than personal knowledge is inadmissible as hearsay when
offered to prove a predicate offense, or violates the
Confrontation Clause if the testimony is both hearsay and
testimonial in nature. We conclude that Guevara has
therefore preserved the first of the three sub-arguments that
we discuss in this section of the opinion, as well as the
argument that Officer Pacheco’s testimony violates Sanchez,
supra, 65 Cal.4th 665, and the Confrontation Clause, post.

16
spoke with hundreds of gang members, was involved in
hundreds of gang-related investigations and arrests, and
was particularly familiar with the 41st Street gang through
his work. We cannot discern from the record whether Officer
Pacheco personally documented Herrera and Hernandez’s
gang membership, or whether he learned that they were
documented 41st Street gang members through another
source. Where, as here, the record is not developed
regarding the source of an expert’s opinion, a defendant may
not meet his burden to demonstrate affirmative error, and
we will not presume error.5 (People v. Anthony (2019) 32
Cal.App.5th 1102, 1139–1140; accord, People v. Garcia
(2020) 46 Cal.App.5th 123, 167 (Garcia).)
Guevara’s argument that the evidence was insufficient
because the prosecution failed to present evidence that the
predicate crimes were committed for the benefit of the 41st
Street gang is not supported by law. Our Supreme Court
has held that predicate crimes need not be gang-related; i.e.,
predicate crimes need not be committed for the benefit of a
criminal street gang. (Gardeley, supra, 14 Cal.4th at
pp. 610, 621–622.) It was therefore unnecessary for the
prosecution to proffer evidence that the crimes were
committed to benefit 41st Street.

5 Because we decide that the record is not sufficiently
developed to determine whether Officer Pacheco’s testimony
was based on his personal knowledge, we need not reach the
question of whether his testimony would be admissible if it
was not based on personal knowledge.

17
 Guevara’s argument that no evidence was offered to
show Herrera and Hernandez were 41st Street gang
members at the time that they committed the predicate
crimes, or when they were convicted of those crimes, fares no
better. As Guevara concedes, this court’s opinion in
Augborne, supra, 104 Cal.App.4th at page 375, concludes
that there is no such requirement. Guevara suggests that
language in the Supreme Court’s opinion in Prunty, supra,
62 Cal.4th 59, indicates that Augborne is no longer good law.
Specifically, he highlights that Prunty held section 186.22
“requires that the gang the defendant sought to benefit, the
individuals that the prosecution claims constitute an
‘organization, association, or group,’ and the group whose
actions the prosecution alleges satisfy the ‘primary activities’
and predicate offense requirements . . . must be one and the
same.” (Prunty, supra, at pp. 75–76.) Augborne is not
inconsistent with Prunty. Augborne held that it is not
necessary to establish that the perpetrator of the predicate
offense was a member of the same gang as the defendant at
the time of the predicate offense (Augborne, supra, at pp. 371,
375); it did not purport to dispense with the requirement
that there must be a showing that the individual who
committed the predicate crime was a member of the same
gang as the defendant at some point in time. We therefore
conclude that the prosecution was not required to offer
evidence that Herrera and Hernandez were 41st Street gang
members at the time of the predicate offenses.

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Testimonial Hearsay

Guevara next contends that Officer Pacheco’s
testimony regarding Herrera and Hernandez’s 41st Street
gang membership must have been based on general, rather
than personal knowledge, and was therefore barred by
California hearsay laws and the Confrontation Clause, as
articulated in Sanchez, supra, 63 Cal.4th 665.
The Confrontation Clause of the Sixth Amendment
provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him.” (U.S. Const., 6th Amend.) The Confrontation
Clause thus bars “admission of testimonial statements of a
witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” (Crawford, supra, 541
U.S. at pp. 53–54, 59.) This bar applies only to testimonial
statements; admission of nontestimonial statements, while
subject to state law hearsay rules, does not violate the
Confrontation Clause. (Id. at p. 51.)
“Hearsay . . [is] define[d] . . . as ‘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[,]’ . . . [and] is generally
inadmissible unless it falls under an exception. (Evid. Code,
§ 1200, subd[s]. [(a),] (b).)” (Sanchez, supra, 63 Cal.4th at
p. 674.) “‘[T]he hearsay rule has traditionally not barred an
expert’s testimony regarding his general knowledge in his

19
field of expertise.’ ([Sanchez, supra, 63 Cal.4th] at p. 676.)
The reason for this is pragmatic: because ‘“experts
frequently acquired their knowledge from hearsay, . . . ‘to
reject a professional physician or mathematician because the
fact or some facts to which he testifies are known to him only
upon the authority of others would be to ignore the accepted
methods of professional work and to insist on . . . impossible
standards.’”’ (Ibid.; accord, e.g., Imwinkelried, The Bases of
Expert Testimony: The Syllogistic Structure of Scientific
Testimony (1988) 67 N.C. L.Rev. 1, 9 [‘As one court stated, it
would be “virtually impossible” for a scientist to avoid
relying on hearsay sources of information. That observation
is an understatement’ (fn. omitted)].) Because experts rely
on hearsay knowledge and because a jury ‘must
independently evaluate the probative value of an expert’s
testimony,’ including by assessing the basis of the expert’s
opinion, the expert is entitled to tell the jury the basis or
‘“matter” upon which his opinion rests.’ (Sanchez, supra, 63
Cal.4th at pp. 685–686.) Hence, ‘[i]n addition to matters
within their own personal knowledge, experts may relate
information acquired through their training and experience,
even though that information may have been derived from
conversations with others, lectures, study of learned
treatises, etc.’ (Id. at p. 675.)” (People v. Veamatahau (2020)
9 Cal.5th 16, 25 (Veamatahau).)
“On June 30, 2016, . . . the California Supreme Court
issued its opinion in Sanchez, supra, 63 Cal.4th 665, a
pathmarking decision that announced significant changes in

20
the law relating to hearsay testimony by expert witnesses,
which in turn made such testimony vulnerable to challenge
under Crawford v. Washington (2004) 541 U.S. 36 . . . for the
first time.” (Thompkins, supra, 50 Cal.App.5th at pp. 404–
405.) Sanchez held that an expert’s testimony may be
excluded on hearsay grounds if it relates “‘case-specific facts
about which the expert has no independent knowledge.’
(Sanchez, supra, 63 Cal.4th at p. 676.)” (Veamatahau,
supra, 9 Cal.5th at p. 26.) “Case-specific facts are those
relating to the particular events and participants alleged to
have been involved in the case being tried.” (Sanchez, supra,
63 Cal.4th at p. 676.) The Sanchez “decision [did] not call
into question the propriety of an expert’s testimony
concerning background information regarding his knowledge
and expertise and premises generally accepted in his field.
. . . [The] decision does not affect the traditional latitude
granted to experts to describe background information and
knowledge in the area of his expertise.” (Id. at p. 685.)
Sanchez further held that “if the hearsay relayed by
the expert was testimonial, and if Crawford’s exceptions did
not apply, it also violated the confrontation clause under
Crawford. (Sanchez, supra, 63 Cal.4th at pp. 680, 685, 687–
700.) ‘Testimonial statements are those made primarily to
memorialize facts relating to past criminal activity, which
could be used like trial testimony.’ . . . (Id. at p. 689.)”
(Thompkins, supra, 50 Cal.App.5th at p. 406.)
The courts of appeal have expressed disagreement
regarding whether an expert’s testimony, that non-

21
defendants who committed predicate offenses were gang
members is permissible if it is not based on the expert’s
personal knowledge. (See Thompkins, supra, 50 Cal.App.5th
at p. 411 [“gang predicate activity is an element of a charged
enhancement, [and] . . . does . . . place at issue in the case
being tried ‘particular events,’” proof of which requires
evidence of case-specific facts]; People v. Bermudez (2020) 45
Cal.App.5th 358, 375–377 [expert familiar with predicate
offenses and non-defendant offenders’ gang affiliations
through prior reports and conversations with detectives may
relate such general background information to jury]; People
v. Blessett (2018) 22 Cal.App.5th 903, 943–945, review
granted Aug. 8, 2018, S249250 [expert testimony that
predicate offenders were gang members not case-specific
hearsay], disapproved of on another ground by People v.
Perez (2020) 9 Cal.5th 1, 14.); People v. Ochoa (2017) 7
Cal.App.5th 575, 583–586 (Ochoa) [expert’s statement that
gang members who committed predicate offenses admitted
their gang membership may have been impermissible
hearsay, but record was insufficiently developed to make
determination].)
In this case, however, we need not reach the issue. As
we discussed in the prior section of our opinion, defense
counsel did not object that Officer Pacheco failed to provide a
basis for his opinion that Hernandez and Herrera were gang
members, or question Officer Pacheco regarding the basis of
his opinion on cross-examination. We therefore have no way
to ascertain, and appellant has no way to show, that Officer

22
Pacheco was not relying on his personal knowledge.
“[W]here ‘the record is not clear enough for [the appellate]
court to conclude which portions of the expert’s testimony
[may have] involved testimonial hearsay,’ then the court will
conclude the ‘defendant has not demonstrated a violation of
the confrontation clause.’ (People v. Ochoa, supra, 7
Cal.App.5th at p. 586.)” (People v. Bell (2020) 47
Cal.App.5th 153, 194; accord, Garcia, supra, 46 Cal.App.5th
at p. 167 [“Where an appellant has failed to make a timely
objection to the expert’s testimony, resulting in a lack of
clarity over whether the witness testified from personal
observations, an appellant may be unable to carry his or her
burden on appeal of affirmatively showing error”].)

Use of Minute Orders to Establish Date of Predicate
Offenses

Guevara next contends the certified court records6
relating to Herrera and Hernandez’s convictions were
inadmissible to prove that the predicate offenses were
committed within three years of one another for purposes of

6 Guevara refers to the certified court records as
“minute orders.” The exhibits are not included in the record
on appeal, but at trial the prosecutor referred to them as “a
certified docket relating to an Aaron Herrera, 26 pages in
length” and “another certified docket . . . 21 pages in length
. . . relat[ing] to . . . German Hernandez.” It is not contested
that the exhibits were certified court records or that they
contained the dates of the predicate offenses in question.

23
section 186.22, subdivision (e). He argues that, because the
court records could not be used for this purpose and no other
evidence of the dates of the predicate offenses was admitted
at trial, the evidence was insufficient to support the jury’s
true finding on the gang enhancement.
The People respond that Guevara forfeited the
argument by failing to object to admission of the certified
court records at trial, but that, even if preserved, the
argument fails on the merits.
We agree that Guevara’s standing objection to
Pacheco’s expert witness testimony was not sufficiently
specific to preserve the issue, such that he has forfeited the
contention.7 (See Demetrulias, supra, 39 Cal.4th at pp. 20–
21, citing Partida, supra, 37 Cal.4th at pp. 433–434
[defendant’s failure to “‘make a timely and specific objection’
on the ground asserted on appeal” forfeits appellate
arguments based on erroneous admission of evidence].)
Because Guevara has failed to demonstrate that the
prosecution’s evidence that the 41st Street gang engaged in
a pattern or practice of criminal activity was inadmissible on
any of these grounds, he has necessarily failed to
demonstrate that the evidence was insufficient to support
his convictions.

7 See Footnote 4, ante.

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Ten-Year Gang Enhancement Under Section 186.22,
Subdivision (b)(1)(C)

Guevara contends, and the Attorney General concedes,
that the trial court improperly imposed the 10-year street
gang enhancement under section 186.22, subdivision
(b)(1)(C). We agree and accept the concession. Because
Guevara violated section 186.22 by committing a felony
punishable by life imprisonment for which he received a
sentence of life with the possibility of parole, section 186.22,
subdivision (b)(5), which provides for a 15-year minimum
parole eligibility date, applies. (Lopez, supra, 34 Cal.4th at
pp. 1010–1011.) We order that the abstract of judgment be
modified accordingly.

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 DISPOSITION

The clerk is directed to amend the abstract of judgment
by striking the 10-year section 186.22, subdivision (b)(1)(C)
enhancement on count 1 and replacing it with a 15-year
minimum parole eligibility date (§ 186.22, subd. (b)(5)). A
copy of the amended abstract shall be sent to the
Department of Corrections and Rehabilitation. The
judgment is otherwise affirmed in full.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

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