People v. Meraz

yes." They talked about serving life in prison and Meraz said he had "lost everything ... [a]ll because of one thing." Bibiano said, "We'll never get out, dude. Never." Bibiano said something about leaving the house and "I wasn't even gonna go out, foo'. I should've stayed, I should've stayed." Meraz agreed. When Bibiano said the police showed him a picture of Meraz, Meraz responded, "We should've worn masks. Stupid ass, Bash."

During an interview about the murders, Bibiano began to cry. He denied knowing Chambasis.

At an interview with the police after appellants were arrested, Luis E. Orozco said Bibiano "jumped" him into the gang and Terra Bella had "problems" with Project Boys after Villa's murder. Orozco was with appellants at a park three to five miles away from the San Fernando Gardens at around 5:00 p.m. the day of the shooting. He let Bibiano borrow his cell phone and Bibiano left the park around 5:20 p.m. After Bibiano left the park, he called Orozco later at home and told him, "Don't go outside there's too much cops." At some point, Bibiano returned to say goodbye to his girlfriend and gave Orozco his phone back. Bibiano began to watch the news, which Orozco found suspicious. In response to a story showing "ladies crying" in "the Projects right here," Bibiano seemed nervous and said, "Man, fuck. I got to get the fuck out of here." He said he had "fucked up" and he was "going to hell." A recording of the news broadcast from that day showed photographs of Zamora and Curiel with signs reading "Rest in peace, Javier, Pimps" and "Rest in peace, Justin."

A search of the phone Orozco said he lent Bibiano and the phone recovered from Meraz revealed a text message was sent from Meraz's phone to Orozco's phone at 1:17 p.m. the day after the shooting reading, "I'm going to Sinaloa tonight. I already got my ticket." At 1:27 p.m., Orozco's phone

Terra Bella gang members. Since his arrest, Chambasis had added tattoos to his face and neck.

Officer Adams testified to the importance of respect in a gang and "putting in work" by typically committing crimes to move up in the gang. He believed the shooting in this case was bold within Terra Bella, given it occurred during the day in rival gang territory. When given a hypothetical question tracking the facts of the shooting, Officer Adams opined the shooting was retaliatory for Villa's murder. He also opined the murders were associated with, committed for, and likely committed at the direction of Terra Bella.

Appellants did not testify. In his defense, Chambasis offered evidence that no fingerprint analysis was done on the casings recovered at the scene of the shooting. He elicited testimony that when police interviewed S.B. at the police station after the shooting, she said the gunman she remembered was shorter than the officer interviewing her, who was about five feet 10 inches tall, and had hair. She said the other men did not have guns. When she was shown two books of photographs, she pointed to someone who was not Chambasis and said, "Kind of No. 11 ... but only had hair."

As is typical in gang-related prosecutions, the gang expert in Sanchez testified to his background and experience "investigating gang-related crime;

"those relating to the particular events and participants alleged to have been involved in the case being tried." ( Ibid. ) An expert may "testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge." ( Ibid . ) The court gave several examples of this distinction, one of which pertained directly to gang experts: "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. 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." ( Id. at p. 677, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .)

The court explained that courts frequently avoided any confrontation issues with this kind of expert basis evidence by "concluding that statements related by experts are not hearsay because they 'go only to the basis of [the expert's] opinion and should not be considered for their truth.' " ( Sanchez, supra , 63 Cal.4th at pp. 680-681, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) The court disapproved this reasoning when the expert bases an opinion on case-specific facts about which he or she has no personal knowledge: "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." ( Id. at p. 684, 204 Cal.Rptr.3d 102 , 374 P.3d 320 , fn.omitted.) Because this testimony is hearsay, it implicates Crawford and the confrontation clause if the statements are also testimonial and none of Crawford 's exceptions apply. ( Sanchez , at p. 685, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .)

The court thus crafted 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." ( Sanchez, supra , 63 Cal.4th at p. 686, 204 Cal.Rptr.3d 102 , 374 P.3d 320 , fn. omitted.) Canvassing

officers during the investigations of those crimes were "statements about a completed crime, made to an investigating officer by a nontestifying witness," which "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, supra , 63 Cal.4th at p. 694, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) It did not matter that the officers summarized the statements or that the defendant himself was not accused of the crimes. ( Id. at pp. 694-695, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) Second, the sworn STEP notice retained by police recording the defendant's biographical and other information was testimonial because it was a formal sworn statement from a police officer that the information was accurate, and its primary purpose was to collect information for later use at trial. ( Sanchez , at p. 696, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) Finally, the FI card memorializing the contact with the defendant could be testimonial, but the court did not decide the issue because the expert's testimony was unclear and confusing on this point. It noted "[i]f the card was produced in the course of an ongoing criminal investigation, it would be more akin to a police report, rendering it testimonial." ( Id. at p. 697, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .)

The court found the confrontation clause violation prejudicial as to the gang enhancements because the main evidence of the defendant's intent to benefit the gang was the expert's recitation of testimonial hearsay. ( Sanchez, supra, 63 Cal.4th at p. 699, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) In doing so, it took care to note the defendant was not challenging the expert's "background testimony about general gang behavior or descriptions of the ... gang's conduct and its territory," which was "based on well-recognized sources in [the expert's] area of expertise. It was relevant and admissible evidence as to the ... gang's history and general operations." ( Id. at p. 698, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .)

B. Officer Adams's Testimony

Like the expert in Sanchez , Officer Adams testified to his extensive training on gangs generally and how he gathered background information about Terra Bella. For training, he had attended gang courses and conferences; he had trained in the field with an officer who pointed out active gang members; he

crimes to move up in the gang, and he believed the shooting in this case was bold because it occurred during the day in rival gang territory. When given a hypothetical question tracking the facts of the shooting, Officer Adams opined the shooting was retaliatory for Villa's murder and was committed in association with, for, and at the direction of Terra Bella.

As to appellants specifically, he opined all three appellants were Terra Bella gang members. Critically and in contrast to Sanchez , he based his opinion on his personal interactions with each of them, which were recorded on FI cards intended to "document the basics of the stop for any future investigative use." For example, Officer Adams stopped Meraz two months before the shooting in this case, and Meraz told him he was trying to become a full-fledged member of Terra Bella, and to do so, he needed to "smoke" someone. Officer Adams interpreted this to mean he needed to shoot someone. Meraz also wore Terra Bella gang attire during this encounter and had a Terra Bella gang tattoo inside his bottom lip. Officer Adams contacted Bibiano several times while in the company of other Terra Bella gang members. He identified Bibiano in photographs in which he was displaying gang hand signals and gang tattoos. And Officer Adams contacted Chambasis twice in the presence of other gang members. He took photographs of Chambasis's gang tattoos and belt buckle.

Officer Adams did, however, also testify regarding FI cards filled out by other officers. In one, Meraz said he was a member of the Pierce Street gang, not Terra Bella. In another, it was noted Meraz was present with another gang

expert gave in Sanchez . It also falls in line with the Sanchez court's hypothetical example that an expert may testify that a diamond tattoo is "a symbol adopted by a given street gang" and the presence of the tattoo signifies the person belongs to the gang. ( Id. at p. 677, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) By permitting this type of background testimony, the court recognized it may technically be based on hearsay, but an expert may nonetheless rely on it and convey it to the jury in general terms. ( Id. at p. 685, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) Thus, under state law after Sanchez , Officer Adams was permitted to testify to non-case-specific general background information about Terra Bella,

information the court barred in Sanchez . Respondent also concedes, and we also agree, the arrest report was testimonial because it was most likely made during an investigation of a completed crime, like the

all other respects, the judgment as to Chambasis is affirmed.

Disposition for Meraz

The judgment for Meraz is conditionally reversed. We remand the matter to the juvenile court with directions to conduct a transfer hearing as discussed in this opinion, no later than 90 days from the filing of the remittitur. If at the transfer hearing the juvenile court determines that it would not have transferred Meraz to a court of criminal jurisdiction, then his criminal convictions and enhancements will be deemed juvenile adjudications as of this date. The juvenile court should then conduct a dispositional hearing within its usual time frame.

If the juvenile court determines at the transfer hearing that it would have transferred Meraz to a court of criminal jurisdiction, then his convictions shall be reinstated as of that date. The criminal court is directed to conduct a resentencing hearing for Meraz to consider whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h) and to allow the parties to make a record consistent with Franklin as discussed in this opinion. In resentencing Meraz, the trial court is directed to strike the section 186.22, subdivision (b)(1) enhancement, to strike the section 1202.45 parole revocation fine, to impose a $160 court security fee, to impose a $120 criminal conviction assessment, and to award 1,166 days of presentence custody credit. Following resentencing, the court shall issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

Disposition for Bibiano

The judgment for Bibiano is conditionally reversed. We remand his case to the juvenile court with directions to conduct a transfer hearing as discussed in

Codefendants Juan Ramon Meraz, Juan M. Chambasis, and Victor Bibiano separately appeal their convictions and sentences for murder, attempted murder, and discharging a firearm at an inhabited dwelling following a gang-related shooting that killed two victims and seriously injured a third. This is our third opinion in this case. In our first opinion, we affirmed the judgments with certain corrections to their sentences. The California Supreme Court granted review and transferred the case to us for

reconsideration of defendants' confrontation clause challenges to the gang expert's testimony in light of People v. Sanchez (2016) 63 Cal.4th 665 , 204 Cal.Rptr.3d 102 , 374 P.3d 320 ( Sanchez ). In a partially published opinion, we again affirmed the judgments as modified. ( People v. Meraz (2016) 6 Cal.App.5th 1162 , 212 Cal.Rptr.3d 81 .)

Appellants once again sought review. The California Supreme Court denied Chambasis's petition, but granted Meraz's and Bibiano's petitions and held the cases pending disposition in two other cases raising issues related to sentencing juveniles to life without parole. The court specifically ordered that our prior opinion remain precedential. ( Cal. Rules of Court, rule 8.1115(e)(3).) The court transferred the matter to us to determine if Meraz and Bibiano's sentencing challenges were rendered moot by Senate Bill No. 394, effective January 1, 2018. If not, the court directed us to reconsider the matter in light of Montgomery v. Louisiana (2016) --- U.S. ----, 136 S.Ct. 718 , 732-735, 193 L.Ed.2d 599 ( Montgomery ). In supplemental briefing after transfer, appellants raise additional issues based on several newly enacted laws.

Our reconsideration of this case does not affect the portions of our prior opinion affirming appellants' convictions. We reissue those parts of our opinion without change and, for clarity, we republish the previously published part of our prior opinion. In the unpublished part of this opinion, we reject Meraz's and Bibiano's Eighth Amendment challenges to their sentences as moot but conditionally reverse and remand their judgments for transfer hearings pursuant to Welfare and Institutions Code section 707. Presuming Meraz's and Bibiano's cases are transferred to adult criminal court, they are entitled to resentencing hearings to make a record of factors potentially relevant to their future youth offender parole hearings. Moreover, all three appellants are entitled to remand for the trial court to

porch. One of the approaching males had a

claimed he did not know anything because he "was not even there." Meraz also claimed he "wasn't even there" and said he did not know Bash. Bibiano responded, "Me neither." Bibiano said, "The rest of my life has gone to waste," to which Meraz responded, "All because of some stupid shit." Bibiano said Bash had told him, "Don't trip, dude," and Bibiano had responded, "I'm no fuckin' rat, man." Meraz commented, "If you rat, foo', they'll make paperwork on you," and "when you get to the big house, they fuck you up, foo'. Don't say anything." Bibiano said, "Yeah, I know. It doesn't matter ain't gonna happen. I don't even got nothing. Shit, I was not even there, man. What the fuck I'm gonna tell you?" Meraz claimed all the police had was "a bunch of gossip." Meraz said, "What saved me foo', is that they asked me what I was doing. And I told him that-that I was with Paula. And they called her and she said yes." Bibiano responded, "Hopefully my girl will also say

responded, "Can I go with you, or what[?]" At 7:05 p.m. on the day of the shooting, Meraz's phone sent a text message to a different number reading, "On the run."

Officer Tyler Adams testified as a gang expert for the prosecution. He was assigned to monitor Terra Bella and he gathered information by talking to gang members, both in and out of custody, as well as interviewing them as part of conducting probation and parole services. Terra Bella had approximately 30 members and their symbols included "13" to signify affiliation with the Mexican Mafia and the hand signals and initials "TB" and "TBS." The gang's primary activities were burglary, grand theft, carrying loaded and concealed firearms, assault with firearms, assault likely to cause great bodily injury, and felony vandalism. Officer Adams identified convictions of several Terra Bella gang members for those types of crimes. He confirmed the rivalry between Terra Bella and Project Boys, which became heated after Avila murdered Villa in May 2008.

Officer Adams confirmed all three appellants were Terra Bella gang members. Meraz had previously admitted he was a Terra Bella gang member, and when Officer Adams had previously stopped him, he had been with other gang members, had been wearing gang attire, and had a "PTB" tattoo inside his bottom lip. During one stop, Meraz said he was trying to get into Terra Bella and had to "smoke somebody" to do so. Bibiano had gang tattoos and when Officer Adams previously stopped him, he had been with other gang members. Officer Adams had also obtained a photograph showing Bibiano throwing gang hand signals. Chambasis also had gang tattoos and Officer Adams had previously stopped him in the presence of other

if technically hearsay, has not been subject to exclusion on hearsay grounds," but experts have not been permitted to convey case-specific hearsay about which the expert has no personal knowledge. ( Sanchez, supra , 63 Cal.4th at p. 676, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) The court defined case-specific facts as

confrontation clause cases, it concluded hearsay statements are testimonial if they are made "primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." ( Id. at p. 689, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .)

Turning to the facts of the case, the court concluded the police reports, the STEP notice, and potentially the FI card were case-specific testimonial hearsay, violating the confrontation clause. First, the three contacts with the defendant reflected in police reports compiled by the investigating

had responded to gang-related crimes; and he had spoken with gang officers and detectives. He had also been assigned to a gang crime-prevention task force responding to hot spots around Los Angeles, during which he would speak to gang officers and detectives about the gangs involved. As part of the gang unit in the Foothill Division monitoring Terra Bella, he had gathered intelligence on gang membership and rivalries to allow him "to respond more effectively in response to a shooting or any other gang-related crimes." He received the "majority of our intelligence" by "speak[ing] with gang members of all levels and ages, both in and out of custody, whether they're suspects, victims, witnesses, or none of the above. We conduct probation and parole services, at which time we would interview them about just general gang life."

Based on this experience and background, he described the size of Terra Bella, its symbols, and its primary activities, and he identified the convictions of several Terra Bella members based on court records. He also described the rivalry between Terra Bella and Project Boys, which became heated after Avila murdered Villa in May 2008. He further testified to the importance of respect in a gang and "putting in work" by typically committing

member. In a third, it was noted Meraz was with a "gang member associate." Officer Adams also testified about an arrest report from other officers related to another gang member indicating Meraz was with him when the gang member was arrested.

C. Analysis

Appellants argue almost all aspects of Officer Adams's general background testimony were case specific and testimonial, including his opinion that the shooting in this case was in retaliation for Villa's murder, how Terra Bella operates, the gang's primary activities, and the gang's pattern of criminal activity based on convictions of other gang members. In doing so, appellants attack the sources of Officer Adams's testimony, namely "out-of-court statements made by both police officers and other gang members." They also focus on how the prosecution used Officer Adams's testimony to prove both the gang enhancements and the retaliatory motive for the shooting in this case. Appellants fundamentally misunderstand the scope and import of Sanchez .

Under Sanchez , facts are only case specific when they relate " to the particular events and participants alleged to have been involved in the case being tried," which in Sanchez were the defendant's personal contacts with police reflected in the hearsay police reports, STEP notice, and FI card. ( Sanchez, supra, 63 Cal.4th at p. 676, 204 Cal.Rptr.3d 102 , 374 P.3d 320 , italics added.) The court made clear that an expert may still rely on general "background testimony about general gang behavior or descriptions of the ... gang's conduct and its territory," which is relevant to the "gang's history and general operations." ( Id. at p. 698, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) This plainly includes the general background testimony Officer Adams gave about Terra Bella's operations, primary activities, and pattern of criminal activities, which was unrelated to defendants or the current shooting and mirrored the background testimony the

DISPOSITION

Disposition for Chambasis

Chambasis's sentence is vacated. We remand the matter for resentencing to allow the trial court to consider whether to strike the firearm enhancements pursuant to section 12022.53, subdivision (h). In resentencing Chambasis, the trial court is directed to strike the section 186.22, subdivision (b)(1) enhancement, to strike the section 1202.45 parole revocation fine, to impose a $160 court security fee, to impose a $120 criminal conviction assessment, and to award 1,173 days of presentence custody credit. Following resentencing, the court shall issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In