People v. Duran

Factual and Procedural Background

A. Facts.

1. Robbery of Benjamin Beckum.

On December 1, 1999, Benjamin Beckum was standing outside a flower shop where he was employed. Duran and Fonseca drove past in a gold Nissan; Fonseca was driving. Beckum made eye contact with both appellants. Appellants gave Beckum a “weird look.” The Nissan turned and pulled behind the flower shop, and Beckum lost sight of it.

Approximately five minutes later, Beckum saw Fonseca at a pay telephone outside the flower shop. Fonseca indicated he was having difficulty with the telephone and asked whether Beckum had a calling card. Beckum said he did not, and approached to examine the telephone. Fonseca hung up and asked, “Do you see those chains right there,” referring to two gold chains Beckum was wearing. Beckum looked down at the chains. When he looked up again, Fonseca was displaying a black, pearl-handled revolver. Beckum observed the gold Nissan stopped in the middle of the street, approximately 300 feet away. After grabbing the chains from Beckum’s neck, Fonseca ran to and entered the gold Nissan. Duran, who was driving, “took off.” Beckum later identified both Duran and Fonseca from a photographic lineup and at trial.

2. Robbery of Julio R. and Duran’s evasion of police officers.

On December 3, 1999, appellants robbed 16-year-old Julio R. as he walked home from school. Appellants were passengers in a car that pulled up alongside Julio R. Fonseca approached Julio R. with a baseball bat and asked, “[Wjhere are you from?” Julio R. understood this as a request to identify his gang affiliation. Julio R. replied, “Nowhere,” meaning he was not a gang member. Fonseca motioned at Julio R. with the bat. Duran pointed a gun at Julio R. during the robbery, forcing him to surrender his watch. Julio R. testified that Fonseca had “F13” tattooed at the corner of his eye.

On December 6, 1999, Duran, driving the gold Nissan, led Los Angeles police officers on a brief high-speed chase that ended when Duran crashed into a van. Fonseca had exited the car and fled from officers at the outset of the chase. Officers found a handgun lying on the ground outside the car at the crash scene.

3. Evidence relating to the criminal street gang enhancement.

Officer Steve Burciaga, a KF/z-year veteran of the Los Angeles Police Department who was assigned to an antigang unit, testified as an expert on gangs in the Los Angeles area. Burciaga’s duties included gathering gang intelligence and documenting information on gang members. Burciaga had interviewed hundreds of gang members, including over 100 members of the Florencia 13 gang, in the Los Angeles area. He had also arrested gang members associated with narcotics activity, investigated gang-related homicides, and had worked as a gang detective investigating gang-related crimes. According to Burciaga, the Florencia 13 was a large, well-established Hispanic gang with over 200 members; it claimed as its territory the area around Harvard Park, among other areas. The Florencia 13 was identified with distinctive hand symbols and graffiti.

Burciaga opined that the Florencia 13 gang had “several” primary activities; the “main one” was “putting fear into the community” by committing robberies, assaults with deadly weapons, and narcotics sales. Community intimidation serves a gang’s interests by causing witnesses to refuse to testify against gang members. Robberies serve a gang’s interests because the robbery proceeds are often distributed among the gang’s members. The perpetrators of a robbery gain stature in the gang by showing their willingness to commit crimes for the gang. Narcotics sales benefit a gang by providing a source of income for gang members.

Burciaga had spoken with Duran and Fonseca on numerous occasions. Both had admitted to membership in the Florencia 13 gang. Burciaga explained that the Florencia 13 used “FI 3” as a symbol identifying the gang. Tattoos represented a commitment to one’s gang, and an “F13” on the face was an outward statement claiming Florencia 13 gang membership. Burciaga testified that appellants both had tattoos related to gang membership.

When given a hypothetical based upon the facts of the case, Burciaga opined that the robberies were committed for the benefit of the Florencia 13 gang. Such robberies would benefit the gang by providing financial support, controlling the gang’s territory, and generally intimidating local residents.

Burciaga had personally spoken with Octavio Aldaco and had reviewed Aldaco’s “rap sheet” and other records. Aldaco was a Florencia 13 gang member and had been a member in 1997. Burciaga’s opinion was based upon his personal experiences and dealings with Aldaco, his discussions with other officers who had had contacts with Aldaco, and Aldaco’s personal admissions to Burciaga that he was a Florencia 13 member. A certified court

to the judgment to determine “ ‘whether it discloses substantial evidence— that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469 , 496 [ 117 Cal.Rptr.2d 45 , 40 P.3d 754 ]; People v. Holt (1997) 15 Cal.4th 619 , 667 [ 63 Cal.Rptr.2d 782 , 937 P.2d 213 ].) “We draw all reasonable inferences in support of the judgment. [Citation.]” (People v. Wader (1993) 5 Cal.4th 610 , 640 [ 20 Cal.Rptr.2d 788 , 854 P.2d 80 ]; People v. Olguin (1994) 31 Cal.App.4th 1355 , 1382 [ 37 Cal.Rptr.2d 596 ].) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297 , 331 [ 75 Cal.Rptr.2d 412 , 956 P.2d 374 ].)

2. The evidence was sufficient to prove the robbery of Beckum was committed on behalf of a criminal street gang.

Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity. (§ 186.22, subd. (f); People v. Sengpadychith (2001) 26 Cal.4th 316 , 319-320 [ 109 Cal.Rptr.2d 851 , 27 P.3d 739 ]; People v. Gardeley (1996) 14 Cal.4th 605 , 616-617 [ 59 Cal.Rptr.2d 356 , 927 P.2d 713 ]; People v. Loeun (1997) 17 Cal.4th 1 , 8 [ 69 Cal.Rptr.2d 776 , 947 P.2d 1313 ].)

A “pattern of criminal gang activity” is defined as gang members’ individual or collective “commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” enumerated “predicate offenses” during a statutorily defined time period. (§ 186.22, subd. (e); People v. Gardeley, supra, 14 Cal.4th at p. 617.) The predicate offenses must have been committed on separate occasions, or by two or more persons. (§ 186.22, subd. (e); People v. Loeun, supra, 17 Cal.4th at pp. 9-10.) The charged crime may serve as a predicate offense (People v. Gardeley, supra, at p. 625; People v. Olguin, supra, 31 Cal.App.4th at p. 1383), as can “evidence of the offense with which the defendant is charged and proof of another offense committed on the same occasion by a fellow gang member.” (People v. Loeun, supra, at p. 5.)

(i) Admission of the certified minute order was not barred by the hearsay rule.

We reject appellants’ contention that the certified minute order documenting the Aldaco conviction was hearsay and thus inadmissible to prove a predicate offense. Appellants point to People v. Wheeler (1992) 4 Cal.4th 284 [ 14 Cal.Rptr.2d 418 , 841 P.2d 938 ], for the proposition that a court record of conviction is hearsay when offered to prove that the person adjudged guilty actually committed the crime. Appellants’ argument, however, fails to take into account intervening changes in the law since Wheeler.

Wheeler did not address section 186.22; it concerned whether witnesses in a criminal proceeding might be impeached with misdemeanor convictions. The court held that after passage of Proposition 8’s Truth-in-Evidence amendment to the California Constitution (Cal. Const., art. I, § 28, subd. (d)), evidence of past misdemeanor conduct bearing on a witness’s veracity was admissible in a criminal proceeding subject to the trial court’s discretion. (P eople v. Wheeler, supra, 4 Cal.4th at p. 295.) However, Wheeler held that the conviction itself was inadmissible hearsay when offered to prove that the witness committed the misconduct. (Id. at p. 297.) The court relied upon a statement of the California Law Revision Commission that, “ ‘Analytically, a judgment that is offered to prove the matters determined by the judgment is hearsay evidence. [Citations.] It is in substance a statement of the court that determined the previous action [i.e., other than by a testifying witness] . . . that is offered “to prove the truth of the matter stated.” [Citation.] Therefore, unless an exception to the hearsay rule is provided, a judgment would be inadmissible if offered in a subsequent action to prove the matters determined.’ [Citation.]” (Id. at p. 298, quoting Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1966 ed.) foll. § 1300, pp. 342-343, italics added.) Wheeler rejected the argument that the fact of conviction alone was relevant to a witness’s credibility; instead, “a witness’s prior convictions are relevant for impeachment, if at all, only insofar as they prove criminal conduct from which the factfinder could infer a character inconsistent with honesty and veracity. [Citations.]” {People v. Wheeler, supra, at p. 299.) Accordingly, the court held, “evidence of a misdemeanor conviction, whether documentary or testimonial, is inadmissible hearsay when offered to impeach a witness’s credibility.” (Id. at p. 300.) The court also rejected arguments that misdemeanor convictions were admissible under the business or official records exceptions to the hearsay rule (Evid. Code, §§ 1271, 1280), because such a record is “competent only to prove the act it records. Thus, while the documentary evidence of a conviction may be admissible to prove that the conviction occurred, the business or official records exceptions do not make the abstract of judgment admissible to show

that the witness committed the underlying criminal conduct.” (People v. Wheeler, supra, at p. 300, fn. 13.) Wheeler noted, however, that the Legislature was not precluded from creating a hearsay exception that would allow the use of misdemeanor convictions for impeachment in criminal trials. (Id. at p. 300, fn. 14.)

In People v. Gardeley, supra, 14 Cal.4th at page 624, footnote 11, the court referenced Wheeler and expressly declined to address whether a section 186,22 predicate offense could be proved through “informations and other official court records” (Gardeley, at p. 624) documenting a conviction, or whether such records would constitute inadmissible hearsay when offered to prove “matters determined by that judgment (namely, that [a gang member] committed the crime of which he was convicted) . . . .” The court found it unnecessary to address the issue because the defendants in Gardeley had not raised a hearsay objection at trial. (Ibid.)

In 1996, the Legislature enacted Evidence Code section 452.5, which provides the type of hearsay exception contemplated in Wheeler. Evidence Code section 452.5, subdivision (a) provides that the official records of which a court may take judicial notice (Evid. Code, § 452, subd. (d)) include certain computer-generated official court records. Evidence Code section 452.5, subdivision (b), the provision more directly pertinent to the question before us, states, “An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.” (Italics added.) Evidence Code section 452.5 was enacted as part of the Criminal Convictions Record Act (CCRA). (Stats. 1996, ch. 642, § 3; People v. Martinez (2000) 22 Cal.4th 106 , 118 [ 91 Cal.Rptr.2d 687 , 990 P.2d 563 ].) The Legislature’s stated purpose in enacting the CCRA was to “simplify recordkeeping and admission in evidence of records of criminal convictions by establishing a central computer data base of that data, and by authorizing admission in evidence of this computer data.” (Stats. 1996, ch. 642, § 2; see also People v. Martinez, supra, 22 Cal.4th at p. 119.)

We conclude that Evidence Code section 452.5, subdivision (b) creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred. In construing a statute, we attempt to ascertain and effectuate the Legislature’s intent. (People v. Gardeley, supra, 14 Cal.4th at p. 621.) “We turn first to the words of the statute themselves, recognizing

Evidence Code section 452.5 does not define the term “official record of conviction,” but a certified minute order clearly falls within this definition. In an analogous context, courts have considered “what comprises the record of conviction to which the trier of fact may look to determine whether a prior conviction qualifies as a serious felony. [Citation.]” (People v. Woodell (1998) 17 Cal.4th 448 , 454 [ 71 Cal.Rptr.2d 241 , 950 P.2d 85 ].) Those authorities have generally held that the record of conviction includes the trial court record. (Id. at pp. 455-456; e.g., People v. Myers (1993) 5 Cal.4th 1193 , 1195 [ 22 Cal.Rptr.2d 911 , 858 P.2d 301 ] [“the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction” to determine whether foreign conviction is serious felony for purposes of enhancement statute]; see also People v. Houck (1998) 66 Cal.App.4th 350 , 355 [ 77 Cal.Rptr.2d 837 ].) The trial court record includes, inter alia, all minutes of the court relating to the action. (Cal. Rules of Court, rule 33(a)(1); People v. Abarca (1991) 233 Cal.App.3d 1347 , 1350 [ 285 Cal.Rptr. 213 ] [record of prior conviction includes “all items that could have been used on appeal of that prior conviction, specifically, any items considered a normal part of the record under California Rules of Court, rule 33 or by which it could be augmented pursuant to California Rules of Court, rule 12.”].) While courts have noted that “[t]he exact parameters of ‘record of conviction’ are yet to be defined” (People v. Houck, supra, 66 Cal.App.4th at p. 355), there seems little doubt that a minute order reflecting a guilty plea must fall within any definition of the record of conviction. Here, the prosecutor represented, and the parties did not challenge, that the minute order was properly certified. (Evid. Code, § 1530.) There is no question that the minute order reliably reflects the judgment imposed by the trial court. Therefore, pursuant to Evidence Code section 452.5, subdivision (b), the certified minute order was admissible as an official record to prove the Aldaco conviction.

(ii) The evidence was sufficient to prove Aldaco was a Florencia 13 gang member.

Finally, we conclude the evidence was sufficient to establish that the Octavio Aldaco referenced in the certified minute order and the Octavio Aldaco known to Officer Burciaga as a Florencia 13 member were one and the same person. Duran argues the evidence was insufficient because Burciaga did not testify to his personal knowledge or observation of proceedings against Aldaco in case No. BA164005 (see ante, at p. 1456), nor did the minute order contain a photograph from which Burciaga could have confirmed Aldaco’s identity. Therefore, he urges, Burciaga’s testimony was “pure speculation.”

We conclude the evidence was sufficient. The minute order established the date and nature of Aldaco’s conviction. This evidence was unlike the conclusionary, nonspecific hearsay and arrest information deemed insufficient to establish a predicate conviction in other cases. (E.g., In re Leland D. (1990) 223 Cal.App.3d 251 , 259 [ 272 Cal.Rptr. 709 ].) Appellants did not challenge Burciaga’s qualifications to testify as an expert. Burciaga was properly allowed to testify as an expert regarding the gang enhancement, and the question of the requisite predicate offenses. (People v. Gardeley, supra, 14 Cal.4th at pp. 619-620, 624-626 [gang expert’s testimony, which provided much evidence necessary to establish that gang met definition of criminal street gang under § 186.22, subd. (f), was properly admitted]; People v. Villegas (2001) 92 Cal.App.4th 1217 , 1228 [ 113 Cal.Rptr.2d 1 ] [predicate offense was sufficiently established by testimony of gang expert and documentary evidence]; People v. Valdez (1997) 58 Cal.App.4th 494 , 506 [ 68 Cal.Rptr.2d 135 ] [where a gang enhancement is alleged, “expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citations.]”]; People v. Gamez (1991) 235 Cal.App.3d 957 , 965-966 [ 286 Cal.Rptr. 894 ] [expert testimony regarding gang’s activities may often be required to establish gang’s past criminal conduct and ongoing criminal nature], overruled on other grounds in People v. Gardeley, supra, at p. 624, fn. 10.)

Expert testimony may be founded on material that is not admitted into evidence and on evidence that is ordinarily inadmissible, such as hearsay, as long as the material is reliable and of a type reasonably relied upon by experts in the particular field in forming opinions. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) Thus, a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies. (Id. at p. 620; People v. Olguin, supra, 31 Cal.App.4th at pp.