P. v. Cabrera CA4/3

Filed 5/31/13 P. v. Cabrera CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G042390

v. (Super. Ct. No. 07CF4087)

HENRY CABRERA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, David A.
Thompson, Judge. Affirmed in part and reversed in part.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Heather Crawford and
Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
 A jury convicted defendant Henry Cabrera of carjacking, attempted second
degree robbery, possession of a firearm by a felon, street terrorism, evading police while
driving recklessly, receiving a stolen vehicle, carrying a loaded firearm by a gang
member, and unlawful driving of a vehicle. The jury found true a gang enhancement for
all counts except street terrorism and unlawful driving of a vehicle, and that defendant
personally used a firearm while committing the first two crimes. In a bench trial the
court found defendant had suffered both a prior strike conviction and a prior serious
felony conviction, and served a prior prison term. It sentenced him to 30 years to life.
Defendant challenges the sufficiency of the evidence supporting the street
terrorism conviction and the gang enhancement. He also argues the court erred by
excluding a statement he claims was admissible under Evidence Code section 356, and by
failing to instruct the jury on a crime on which the prosecution relied to prove the primary
activity element of the gang charge and allegations. In a prior opinion, filed November
30, 2010, we affirmed the judgment. The California Supreme Court granted review and,
on March 13, 2013, transferred the matter to us with directions to vacate our earlier
decision and to reconsider the cause in light of People v. Rodriguez (2012) 55
Cal.4th 1125 (Rodriguez). Following the transfer, the parties did not submit further briefs
or request oral argument. We have now reconsidered the cause and issue our revised
opinion. In light of Rodriguez, we conclude insufficient evidence supports the street
terrorism conviction and reverse that count, but otherwise affirm the judgment.

FACTS

As Julio Torrez parked his car, two men, wearing dark blue or black
sweatshirts with hoods, ran toward him. One of them, holding a gun, demanded Torrez
give him money and the car keys. The second man entered the car on the passenger side
and the man with the gun got into the driver‟s side and drove away.

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 After receiving a report of a carjacking police found the car. Inside were
two Hispanic men wearing dark sweatshirts with hoods, as described in the report. When
the police first began following the car they saw the passenger throw a gun out the
window, after which followed a high-speed chase. When the car stopped, the passenger
jumped out and ran. Defendant, in the driver‟s seat, surrendered. Several items,
including the stereo and tools, were missing from the car.
Torrez could not positively identify the gun as the one used but said it
looked similar. At an in-field show up, Torrez was not absolutely sure defendant was the
one who had taken the car. He was afraid of retaliation by the two men. About six
weeks later Torrez picked defendant out of a six-pack photo lineup but at trial testified he
did not recall whether he had identified him. A search of defendant‟s residence revealed
a dark blue sweatshirt, other dark blue clothes, and a holster.
Officer Ronald Castillo testified as the gang expert. He had served 15 years
in the gang unit, including 12 years as its supervisor. He assisted other gang detectives,
determined whether gang charges should be filed, and interacted with gang members. He
had investigated more than 1,000 gang cases and interviewed more than 5,000 gang
members about their claimed territories, allies, rivals, loyalty, respect, guns, and graffiti.
Castillo was familiar with the Highland Street gang, having been assigned
to its claimed turf since he joined the police department in 1984, and had spoken to some
of its members, although not for a couple of years and not with the 15 members active
when the carjacking occurred. He described Highland Street as a traditional Hispanic
gang and identified its claimed territory, membership, symbol, predicate crimes, plus its
allied and rival gangs. Castillo testified the gang‟s primary activities were possession of
narcotics for sale and auto theft. He cited four narcotics arrests and five auto theft arrests
of members of Highland Street, all between 2003 and 2007. This testimony was based on
his review of police reports and arrest reports he had studied to determine whether to file
gang charges.

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 The two predicate crimes were attempted first degree burglary and street
terrorism in 2006 and carjacking, receiving stolen property, possessing a firearm near a
school, and street terrorism in 2007. As to the earlier crime, Castillo testified he knew
and had contacts with the defendant and had reviewed arrest reports and related
documents. As to the second set of crimes, he conducted a background check, including
review of police reports and gang notices.
Castillo opined that on the date of the charged crimes, Highland Street was
a criminal street gang. He explained the concept and importance of respect in the gang
subculture, testifying it is obtained by committing crimes. He noted a gang‟s goal is to
engender fear in the community to prevent opposition or cooperation with police or
prosecutors. Consequently, victims often are hesitant to testify for fear of retaliation.
Possessing a firearm increases a gang member‟s respect and is useful in committing
crimes, including carjackings and when selling drugs. A sign of respect is to inform
other gang members in a car if it contains a gun. The occupants will be aware it is
available for use or to dispose of if the car will be stopped by police.
Castillo did not know defendant personally but had checked his
background. He reviewed police reports and four STEP (Street Terrorism Enforcement
and Prevention) notices issued between 2003 and 2007. They included information
defendant had associated with two other gang members, grew up in the area claimed by
Highland Street, and had been “claiming” his membership in the gang since he was in the
sixth grade. Defendant had written “Highland” on a school door and a chair in his
bedroom. Castillo also reviewed a postarrest interview with defendant, where defendant
admitted being “documented” as a gang member for four years. On the basis of all those
facts, it was Castillo‟s opinion defendant was a gang member.
The prosecutor then presented a hypothetical question based on the facts of
the case. Before Castillo answered the court instructed the jury with CALJIC No. 2.82,
which stated that all facts assumed in the hypothetical were not necessarily true, although

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they could be and the jury was to decide when evaluating the expert‟s testimony. Castillo
then testified he was of the opinion the hypothetical facts showed the crimes were
committed for benefit of Highland Street.
Carjacking benefitted the gang because, as members had told Castillo,
carjacked or stolen cars are used to commit other crimes. Additionally, gang members
can more easily avoid police than if they used their own cars. Carjacking also enhances
the status of the gang and the member. If a gun is used it engenders fear and residents are
less likely to call the police. Gangs use fear to operate by controlling the community
located within their claimed turf.

DISCUSSION

1. Sufficiency of the Evidence
a. Introduction
Defendant challenges his conviction for the crime of street terrorism and
the true findings on gang enhancement. He contends there was insufficient evidence of
Highland Street‟s primary activities as defined under Penal Code section section 186.22,
subdivisions (e) and (f) (unless otherwise indicated all further statutory references are to
this code unless otherwise indicated), and therefore the prosecution failed to prove it was
a criminal street gang. He also argues he did not commit the acts with another gang
member. Further he claims there was no substantial evidence that (1) the other charged
crimes were committed in association with, at the direction of, or to benefit the gang, or
(2) he had the specific intent to promote the gang or himself within the gang.

b. Proof Highland Street is a Criminal Street Gang
A criminal street gang is “any ongoing organization, association, or group
of three or more persons, whether formal or informal, having as one of its primary

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activities the commission of [several enumerated felonies, including sale of narcotics and
theft of a vehicle] having a common name or common identifying sign or symbol, and
whose members individually or collectively engage in or have engaged in a pattern of
criminal gang activity.” (§ 186.22, subds. (f), (e)(4) & (10).)
Defendant maintains the prosecution did not prove Highland Street‟s
primary activity because the only evidence was Castillo‟s testimony, which he argues
was based solely on inadmissible hearsay. But it is settled the primary activities element
may be proven by expert testimony that the criminal street gang “was primarily engaged
in . . . statutorily enumerated felonies. [Citation.]” (People v. Sengpadychith (2001) 26
Cal.4th 316, 324.)
Defendant challenges Castillo‟s reliance on police reports and STEP
notices as insufficient bases to support his opinion as to Highland Street‟s primary
activities, and includes a claim Castillo never testified as to the basis for his opinion that
some of the auto thefts and all of the drug crimes were committed by members of
Highland Street. The record reveals otherwise.
Castillo had worked in some capacity as a gang officer for 15 years, and
was previously assigned to patrol the territory Highland Street claimed. He had spoken
to and was familiar with Highland Street members, including those who had committed
crimes. He described typical Hispanic gangs in general and Highland Street in particular,
explaining turf, clothing, symbols, respect, alliances, and rivals. He not only reviewed
police reports, but read all department in-custody reports to determine whether gang
charges should be filed. These reports are the type of documents on which experts may
reasonably rely (People v. Gardeley (1996) 14 Cal.4th 605, 618, 619-620; People v.
Gamez (1991) 235 Cal.App.3d 957, 967, disapproved on another ground in People v.
Gardeley, supra, 14 Cal.4th at p. 624, fn. 10) and gave Castillo an opportunity to look for
instances of Highland Street‟s gang activity.

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 As to the basis for his testimony the narcotic and auto theft crimes were
committed by members of Highland Street, Castillo listed the five drug arrests by
members of Highland Street. The prosecutor also asked for specific cases of auto thefts.
Although he did not explicitly inquire whether the crimes were committed by gang
members, the jury could reasonably infer from the context that was the basis of the
testimony. There is no requirement the prosecution introduce proof of convictions for
those activities. (In re Leland D. (1990) 223 Cal.App.3d 251, 258.)
Likewise we reject defendant‟s claim the prosecution needed to show the
particular narcotics the gang sold. The arrest reports, in conjunction with the other
information to which Castillo testified, were sufficient foundation for his opinion.
(People v. Gardeley, supra, 14 Cal.4th at pp. 619-620; People v. Martinez (2008) 158
Cal.App.4th 1324, 1330; People v. Ortiz (1997) 57 Cal.App.4th 480, 484-485, fn. 3.)
Looking at all the evidence most favorably to the prosecution a reasonable jury could find
Highland Street was a street gang. (People v. Martinez, supra, 158 Cal.App.4th at pp.
1329-1330.)
That Castillo never spoke to current Highland Street members does not
vitiate the foundation, and neither he nor the prosecution had a duty to obtain and present
criminal records of those members or testimony from other witnesses. United States v.
Mejia (2d Cir. 2008) 545 F.3d 179, on which defendant relies, does not change our result.
As a federal appellate court decision it is not binding. (See People v. Crittenden (1994) 9
Cal.4th 83, 120, fn. 3.)
Taking a different tack defendant asserts the prosecution‟s reliance on
hearsay violated the confrontation clause, citing Mejia. This issue was not properly
briefed, lacking its own separate heading as required by the California Rules of Court,
rule 8.204(a)(1)(B). Even on the merits, the argument fails. The evidence of the gang‟s
primary activities was based not on hearsay, but on Castillo‟s opinion developed through
his personal experience, training, and knowledge in addition to the documents, on which

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an expert may reasonably rely in forming an opinion. (People v. Cooper (2007) 148
Cal.App.4th 731, 747 [hearsay used solely as basis for expert‟s opinion not testimonial].)
In a related argument defendant asserts the hypothetical posed to Castillo
was improper because the facts presented to him “precisely mirrored” the actual facts of
the case. In People v. Vang (2011) 52 Cal.4th 1038, the Supreme Court held a gang
expert “properly could, and did, express an opinion, based on hypothetical questions that
tracked the evidence . . . .” (Id. at p. 1048.) And, as discussed above, there was sufficient
foundation for Castillo‟s opinion.

c. Street Terrorism
In People v. Rodriguez, supra, 55 Cal.4th 1125, Justice Corrigan authored
an opinion signed by Justices Werdegar and Liu. Justice Baxter issued a concurring
opinion. The only significant difference between the lead opinion and the concurrence is
that Justice Baxter based his conclusion solely on the plain meaning of section 186.22,
subdivision (a). (People v. Rodriguez, supra, 55 Cal.4th at p. 1140.) That subdivision
provides for the punishment of, “[a]ny person who actively participates in any criminal
street gang with knowledge that its members engage in or have engaged in a pattern of
criminal gang activity, and who willfully promotes, furthers, or assists in any felonious
criminal conduct by members of that gang. . . .” (§ 186.22, subd. (a).) The four justices
all agree that, in the words of the concurrence, “the gang offense requires felonious
criminal conduct committed by at least two „[gang] members,‟ including any defendant
who is a member of „that gang.‟” (People v. Rodriguez, supra, 55 Cal.4th at p. 1140.)
Thus, a majority of the justices agree the statute is not violated unless the crime is
committed by at least two gang members.
Defendant‟s contention he was not guilty of count 4, street terrorism, under
section 186.22, subdivision (a) is thus well taken. There is no evidence Pablo Jimenez,
his cohort, was a fellow gang member. Thus there is insufficient evidence defendant

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committed this crime and the guilty verdict as to count 4 must be set aside. Because the
court sentenced defendant to a concurrent sentence under count 4, resentencing is not
required. It is sufficient that the abstract of judgment be corrected to reflect this change.

d. The Gang Enhancement
The gang enhancement attaches if felonious conduct is “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 . . . .” (§ 186.22, subd. (b)(1).) “[T]o prove the elements of the criminal street
gang enhancement, the prosecution may, as in this case, present expert testimony on
criminal street gangs. [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-
1048.)
Defendant claims Castillo‟s opinion was the only evidence supporting the
enhancement and it was not competent because its sole support was defendant‟s gang
membership and past criminal activity. Not so.
In addition to those two pieces of information, as detailed above, Castillo
testified to his years of experience as a gang investigator and supervisor, his familiarity
with Hispanic gangs in general and Highland Street in particular, including crimes its
members had committed. Also, when presented with a hypothetical question analogous
to defendant‟s crimes, Castillo testified they would have been committed for the benefit
or at the direction of or in association with Highland Street and explained why.
Defendant notes he did not act with another gang member, had no visible
tattoos, the victim was not a gang member, he did not he yell a gang slogan, display a
gang sign, or inscribe graffiti. But the fact there is conflicting evidence, the resolution of
which is the jury‟s responsibility, does not supersede the evidence supporting the jury‟s
findings. (People v. Guerra (2006) 37 Cal.4th 1067, 1129, disapproved on another
ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) Further, defendant points out

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carjacking is not a primary activity of Highland Street. As for this assertion, there is no
requirement the crime to which the enhancement applies must be the gang‟s primary
activity; section 186.22, subdivision (b)(1) applies to the conviction of any felony.
Cases defendant cites, such as People v. Ramon (2009) 175 Cal.App.4th
843 and People v. Ochoa (2009) 179 Cal.App.4th 650, while at first glance seem to
support his argument, falter on a closer reading. Ramon ruled an expert‟s opinion the
defendant‟s receipt of a stolen car was committed for the benefit of his gang, expressed in
response to a hypothetical question, was not based on any facts. That the defendant‟s
cohort was also a gang member and they were in gang territory, by themselves, were
insufficient. (People v. Ramon, supra, 175 Cal.App.4th at p. 851.) In Ochoa there was
no evidence of the gang expert‟s experience with and knowledge of the gang nor was a
hypothetical posed. We have more evidence than in either of those cases, as discussed,
and it is sufficient.
Finally, People v. Rodriguez, supra, 55 Cal.4th at p. 1130, makes it clear
the fact defendant‟s partner in crime was not a member of the gang is irrelevant. Both the
lead opinion and the concurrence agree that “[u]nlike the substantive offense, the
enhancement does not require proof of participation in a gang[]” (id. at p. 1130, fn. 5.),
and “[s]ection 186.22[, subdivision] (b)(1)‟s reference to promoting, furthering, or
assisting gang members . . . merely describes a culpable mental state[]” (id. at p. 1141).

2. Exclusion of Evidence
Part of the basis for Castillo‟s opinion defendant belonged to Highland
Street and committed the crimes for the gang‟s benefit was that defendant told the police
during a postarrest interview “he was documented as a Highland Street member in 2003.
He said he was never jumped in because he grew up in the neighborhood. He said this is
why he associates with Highland Street.” Later, citing to Evidence Code section 356,
defense counsel sought to introduce another statement defendant made during that

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interview, “I didn‟t take the car. I found it with the keys in it and drove it away.” The
prosecutor objected on the ground the statement was hearsay. The court sustained the
objection, ruling Evidence Code section 356 did not apply because the statement was
unrelated to defendant‟s gang membership comments.
Evidence Code section 356 provides that if one party introduces part
of a statement or writing, “the whole on the same subject may be inquired into by an
adverse party; . . . and when a detached . . . conversation . . . is given in evidence, any
other . . . conversation . . . which is necessary to make it understood may also be given in
evidence.” Defendant claims his statements relating to gang membership were a
“„detached‟” portion of his interview, entitling him to introduce the statement as to how
he gained possession of the car. But defendant has failed to take into account the
remaining portion of the statute that allows introduction of additional parts of the
conversation only if they are needed to explain the statement in evidence. Here, the
portion of the postarrest interview defendant sought to introduce had nothing to do with
his admission of gang membership. Thus the court did not abuse its discretion (People v.
Brady (2010) 50 Cal.4th 547, 558) in excluding the statements.

3. Jury Instructions
The two primary activities attributed to Highland Street were possession of
narcotics for sale and car theft. The court instructed the jury as to car theft but gave no
instruction as to the narcotics crime. Defendant argues the court erred by failing to
instruct sua sponte on the latter crime because, to determine Highland Street was a
criminal street gang, the jury had to find that possession of narcotics for sale was one of
the gang‟s primary activities.
Section 186.22, subdivision (f) states the prosecution need only prove one
crime as a primary activity. Because the jury was instructed on car theft, even assuming

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the court should have also instructed as to drug crimes, failure to do so was harmless
beyond a reasonable doubt. (People v. Sengpadychith, supra, 26 Cal.4th at p. 326.)

DISPOSITION

Appellant‟s conviction on count 4 is reversed and the clerk of the superior
court is directed to prepare and forward to the Department of Corrections and
Rehabilitation an amended abstract of judgment reflecting this change. As so modified,
the judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

FYBEL, J.

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