THE PEOPLE v. EMMANUEL VASQUEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL VASQUEZ, Defendant and Appellant.

B221106

Decided: January 26, 2011

Diana M. Teran, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Joseph P. Lee and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion following recall or remittitur

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Emmanuel Vasquez appeals from the judgment entered upon his conviction by jury of second degree murder (Pen.Code, § 187, subd. (a)).1  The jury found to be true the allegations that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C) and that appellant personally used a firearm within the meaning of section 12022.53, subdivisions (b), (c) and (d).  The trial court sentenced appellant to a state prison term of 40 years to life.   Appellant contends that (1) there is insufficient evidence to support his conviction, (2) he was denied his Sixth Amendment right to confrontation as articulated in Crawford 2 and its progeny, and (3) there is insufficient evidence to support the gang allegation.

We affirm.

FACTUAL BACKGROUND

The prosecution's evidence

The murder

On February 4, 2008, at approximately 5:45 p.m., Roque Rodarte (Rodarte) was walking to Bell Plaza shopping center, in the City of Bell. He was unarmed.   A few blocks from Bell Plaza, he saw appellant, whom he knew.   They exchanged greetings and continued walking together, as they were going in the same direction.

Near the HomeTown Buffet restaurant, at Bell Plaza, Rodarte saw three Hispanic males, one of whom he recognized from school as “Adrian.”   The other two individuals looked like Hispanic “gangsters.”   Rodarte and Adrian acknowledged each other by gesturing, as if to say, “What's up?”

One of the three men with Adrian began walking rapidly toward Rodarte and appellant, who were next to each other, in an aggressive and threatening manner and, from a distance of 15 or 20 feet, yelled, “Do you fuckers know me?”   The man yelled other bad words and said something about the “213” gang, a rival to the United or Unstoppable Mexican Kings (UMK) gang, of which Rodarte and appellant were members, appellant with the moniker “Joker” and Rodarte with the moniker “Menace.”   The man then removed his shirt as if he wanted to fight, exposing tattoos on his chest.   Rodarte did not see him holding any weapon.   Rodarte felt threatened, said nothing but held his ground, preparing to defend himself.   When the man was 10 feet from them, appellant pulled out a gun and shot him three or four times.

Rodarte did not know appellant was carrying a gun.   Because Rodarte was on probation, he left the scene, went into a nearby pet store and told the clerks to call 911.   After a few minutes, he left the store without speaking with police.

There were two witnesses to the incident.   Maria Hulings (Hulings) was driving her car very slowly in front of the HomeTown Buffet.   She saw two Hispanic males in front.   One was light-skinned, appeared to be 19 to 20 years old, had a shaved head, arched eyebrows, a pointy nose and no facial hair, and wore a white shirt.   He shot a darker skinned, thicker, 22-to-24-year-old man, wearing a white muscle shirt, with tattoos on his arm.   The older man, who Hulings did not see with any weapon, said something to the younger man.   The younger man pulled a small handgun from his waistband, took a step toward the older man, extended his arm straight out and shot him.   She heard two to three, maybe four shots.   Dafne Hernandez (Hernandez) was also in the area at the time of the shooting.   She heard three gunshots and saw a Latino man, 17 to 19 years old, with no facial hair and a white shirt, running “at full speed” from the area.   She later saw the victim “dying on the floor,” his hands empty.

The investigation

Sergeant Joseph Purcell responded to the crime scene and found three 9-millimeter shell casings.

Between February 11 and 13, 2008, after receiving the photographic identification admonitions, Rodarte, Hulings and Hernandez, identified appellant as the shooter in photographic six-packs.   Hulings said appellant was the closest in appearance to the shooter.   Hernandez stated that appellant's photograph was the closest to the person she saw running from the area after she heard the gunshots.

On February 13, 2008, Detective Mark Lillienfeld executed a search warrant at appellant's residence.   The word “Joker” was written with a very thick marker on a dresser door in appellant's bedroom and was etched on his bedroom wall.   A probation search of Rodarte's residence failed to uncover the murder weapon, which was never recovered.

Without objection, Deputy Medical Examiner Jeffrey Gutstadt (Gutstadt) testified that on February 9, 2008, Dr. Carla Toms (Toms) performed an autopsy on a man identified as David Rosas (Rosas), the victim identified in the information.   Gutstadt was not present during the autopsy, but reviewed the autopsy report and photographs.   Based on his review, Gutstadt opined that the person depicted in the photographs suffered three gunshot wounds and died as a result of the gunshot wound to his chest.   Based on the location of entry and exit wounds, the shooter would have had to have been somewhere to the victim's left.   The person in the photographs also had a tattoo on his chest with the words, “dos trece,” which means “two” and “thirteen” in Spanish.   The autopsy report was not admitted in evidence, though the photographs of the victim were.

Gang evidence

Bell Police Detective Terry Dixon testified as a gang expert that the UMK gang was a small Hispanic gang with approximately 20 members.   Its primary activities included drug dealings, robberies, shootings, and murders.   It claimed territory in Bell, Maywood and part of Huntington Park. He described two predicate offenses committed by UMK members.

Detective Dixon opined that appellant was a UMK gang member with the moniker “Joker” based upon his review of reports, including the report of the 2007 tagging incident.3  Appellant had an “L.A.” tattoo on his foot, signifying that he was a member of a gang in the Los Angeles area.   It is not a prerequisite to becoming a gang member that a person get a tattoo.   Detective Dixon also opined that Rodarte was a UMK gang member.   Rosas was a member of the rival 213 gang, which claimed territory in Bell, East Los Angeles, Maywood, Bell and Huntington Park. Being a rival gang member in UMK gang territory could result in death.   It is not necessary that the gang name be shouted before the crime in order for it to be a gang crime.

Respect is the primary goal of any gang member.   A gang member gains respect by committing crimes for the benefit of the gang.   Respect enables a gang member to “go up in the higher echelon of the gang.”   One form of respect is responding to, or retaliating against, a rival gang member who commits a disrespectful act.   Failing to respond would be an act of cowardice and result in a loss of respect from both fellow gang members and rival gang members.

In a hypothetical, based on the facts of this case, Detective Dixon opined that the shooting was committed for the benefit of a criminal street gang because the UMK gang member was “hit up” or disrespected and “had to take some kind of action for being disrespected.”   The shooting benefitted both the shooter and the gang, as rival gang members and citizens would fear the UMK gang.   The shooter would gain respect within his gang.

The defense's evidence

Nicolasa Vasquez (Nicolasa), appellant's mother, testified that she had never known her son to be in a gang, to talk about a gang, or to have friends who appeared to be gang members.   She had never seen appellant with weapons.   Nicolasa said that she approved of appellant getting the “L.A.” tattoo because Los Angeles was a connection between appellant and his deceased brother.

Malcolm Klein (Klein), a psychologist, sociologist and criminalist, testified as the defense's gang expert.   He testified that it is overstated to say that gangs have a hierarchical structure.   Instead, some individual members exert more influence than others.   In a hypothetical based on appellant's 2007 detention in Pico Rivera, Klein opined that appellant either was a UMK gang member or was anxious to become one.

Based on his review of the murder book, preliminary hearing testimony of some of the witnesses in this case and police investigation materials, Klein opined that there was no evidence the shooting was committed in furtherance of gang goals.   He opined in response to a hypothetical based on the evidence, that the confrontation between rival gang members was spontaneous, rather than a deliberate or a planned confrontation.   In all likelihood, the shooter was scared because confronted with someone who appeared to be affiliated with a gang.   The primary reason gang members carry firearms is for protection.

Klein testified that it was common for gang members to come across rivals in the street by chance, without a preconceived plan to shoot anyone.   In general, a gang member who notices a rival would not be afraid because he is accustomed to such meetings.   But the presence of fellow gang members could influence an individual gang member's response to a confrontation with a rival.   There would be peer pressure to show bravado because of the importance of respect in gang culture.

DISCUSSION

I. Sufficiency of evidence to support conviction

A. Contention

Appellant contends that his conviction of second degree murder violates the due process clause of the Fourteenth Amendment because it is unsupported by substantial evidence.   He argues that there is insufficient evidence that he acted with malice aforethought because the prosecution did not meet its burden of proving that he did not act under an unreasonable belief in the need for self-defense.   He also argues that there is insufficient evidence that the victim died as a result of his injuries because the prosecution failed to establish that the man shot in front of HomeTown Buffet was the same man identified in the autopsy report.   This contention is without merit.

B. Standard of review

“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citations.]”  (People v. Bolin (1998) 18 Cal.4th 297, 331.)   We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence.  (People v. Autry (1995) 37 Cal.App.4th 351, 358.)   Reversal on this ground is unwarranted unless ‘ “upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ”  (People v. Bolin, supra, at p. 331.)  “ ‘[T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’  [Citation.]  This standard applies whether direct or circumstantial evidence is involved.”  (People v. Catlin (2001) 26 Cal.4th 81, 139.)

C. Malice aforethought

Appellant was convicted of second degree murder.   Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).)  Second degree murder is the unlawful killing of a human being with malice aforethought, but without the premeditation, deliberation and willfulness required to be first degree murder.  (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.)

Malice may be either express or implied.   It is express when the defendant manifests “a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.)   It is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”  (Ibid.;  see People v. Dellinger (1989) 49 Cal.3d 1212, 1217.)   Malice may be inferred from the circumstances of the murder.  (People v. Harmon (1973) 33 Cal.App.3d 308, 311.)

Manslaughter is “the unlawful killing of a human being without malice.” (§ 192.)   A defendant lacks malice and is guilty of voluntary manslaughter in “ ‘limited, explicitly defined circumstances:  either when the defendant acts in a “sudden quarrel or heat of passion” (§ 192, subd. (a)), or when the defendant kills in “unreasonable self-defense.”  [Citation.]’ ”  (People v. Lasko (2000) 23 Cal.4th 101, 108.)

Unreasonable or imperfect self-defense requires the defendant to have an actual, if unreasonable, belief that he was in imminent danger to life or great bodily injury.  (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)   In such circumstances, the defendant is deemed to have acted without malice and cannot be convicted of murder but only of manslaughter.  (Ibid.) The belief in the need to defend is described as two beliefs, “(1) the belief in imminent danger of death or great bodily injury and (2) the belief in the need to use deadly force to defend against that danger-the unreasonableness of either belief would be sufficient to transform perfect self-defense into imperfect self-defense.”  (People v. Por Ye Her (2009) 181 Cal.App.4th 349, 353.)

It is the prosecution that has the burden of proving beyond a reasonable doubt the absence of imperfect self-defense.  (People v. Martinez (2003) 31 Cal.4th 673, 707.)   We conclude that it met that burden here.

While there was evidence that could support a finding that appellant acted with imperfect self-defense, there was compelling evidence negating this defense.   Appellant was walking to Bell Plaza by himself.   He met Rodarte on the way, and they began walking together.   There is no evidence that appellant had any intention of shooting or killing anyone, and the prosecutor conceded as much in closing, telling the jury that, “[T]here is no evidence to support that the [appellant] went to the HomeTown Buffet with the intent to kill somebody.”

When they met Adrian, whom Rodarte knew from high school, and Adrian's two companions, Rodarte exchanged pleasant nods with Adrian, and appellant said nothing.   As appellant and Rodarte continued walking, one of the men with Adrian rapidly approached them in a threatening and aggressive manner, yelling, “Do you fuckers know me?,” cursing at them and yelling references to his 213 gang, a rival of appellant and Rodarte's UMK gang.   The man took off his shirt, as if he wanted to fight, displaying a gang tattoo on his chest.   Rodarte felt threatened.   When Rosas was 10 feet from appellant, appellant pulled out a gun and shot him three times.   There was no evidence that appellant or Rodarte provoked the aggression.   The trial court found that there was sufficient evidence to support an instruction on imperfect self-defense.

But respondent introduced substantial evidence to allow a jury to find beyond a reasonable doubt that appellant did not act out of actual fear of imminent death or great bodily injury.   Appellant was a member of the UMK gang and was on a public street with a fellow gang member, armed with a loaded handgun.   He was confronted by a rival gang member, cursing at him, calling the rival's gang's name and displaying a gang tattoo.   As the prosecution's gang expert testified, these acts reflected disrespect for appellant and his gang, respect being a primary motivating factor in gang behavior.   Having been disrespected, appellant had to take decisive action or suffer a loss of respect for himself and his gang.   As appellant's gang expert conceded, Rodarte's presence would have increased the pressure on appellant to retaliate for the disrespect.   Appellant did nothing to avoid the confrontation.   He did not yell any warnings to his attacker before shooting, nor did he back up or move away.   Instead, without saying a word, appellant stepped towards the unarmed man and shot him, not once, which might have been sufficient to stop the attack, but three times, increasing the likelihood that the attacker would be killed.   Firing three bullets at the attacker from very close range is a strong indicator of an intent to kill.  (See, e.g., People v. Thomas (1992) 2 Cal.4th 489, 518;  see also People v. Francisco (1994) 22 Cal.App.4th 1180, 1192 [five or six shots from five feet away].)

D. Identity of the victim

Appellant also argues that there is insufficient evidence that Rosas, on whom the autopsy was performed, was the person appellant shot.   No one identified the victim as David Rosas or the person in the autopsy photographs.   While this is a close case, we conclude that there was sufficient evidence from which the jury could find that Rosas was the person appellant shot and killed.

When the victim aggressively approached appellant and Rodarte, he yelled the 213 gang name, the gang of which he was a member.   He removed his shirt, disclosing a gang tattoo on his chest, though none of the witnesses were able to specifically identify it.   The person autopsied had a tattoo on his chest, which stated in Spanish “dos trece,” meaning “213,” a reference to the 213 gang.   Further, the witnesses heard three or four shots, and three expended shell casings were found at the scene.   The autopsy of Rosas revealed that he had been shot three times.   Hulings testified as to the description of the victim that she gave to the police.   Autopsy photographs of Rosas were admitted in evidence.   Thus, the jury could compare them to the descriptions given and evaluate whether they appeared to be the described victim.   Hulings ran to the victim and said that from the amount of blood and saliva coming from his mouth, it did not appear that he was going to make it.   Hernandez said that she saw the victim “dying on the floor.”

II. Coroner's hearsay testimony

A. Background

Coroner Toms performed the autopsy on Rosas.   Another coroner in the coroner's office, Gutstadt, who was not present during the autopsy, reviewed Toms' autopsy report and photographs and opined that the cause of the victim's death was a gunshot wound to the chest.   Appellant did not object to any of Gutstadt's direct examination.   The autopsy report was not admitted into evidence, but the autopsy photographs were admitted without objection.

B. Contentions

Appellant contends that admission of the nontestifying coroner's autopsy findings and report through the testimony of a substitute coroner violated his Sixth Amendment right to confrontation.4  He argues that an autopsy report, required under state law, is a “ ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact’ at trial, namely the ‘circumstances, manner and cause’ of death in cases of suspected homicide.”   It is also a statement “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ”

Respondent contends that appellant forfeited this contention by failing to raise it in the trial court.5  We conclude that the claim is not forfeited, but that it is meritless.

C. Forfeiture

Generally, a defendant forfeits his right to claim error under the Sixth Amendment's confrontation clause on appeal by failing to object below.   (People v. Lewis (2006) 39 Cal.4th 970, 1028, fn.   19 [“We reiterate that defendants have forfeited this confrontation clause claim by failing to raise it below”];  People v. Alvarez (1996) 14 Cal.4th 155, 186 [“Defendant has not preserved his claim for review․  There was neither a ‘specific’ nor ‘timely’ objection below predicated on the Sixth Amendment's confrontation clause”];  see also People v. Geier (2007) 41 Cal.4th 555, 609-611 (Geier ).)

Appellant argues that he did not forfeit his Crawford claim because at the time of trial, between June 3 and 11, 2009, it would have been futile to have raised it in the trial court in light of Geier (see People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4), which, as discussed below, was then controlling on this issue.   The United States Supreme Court had not yet issued its decision in Melendez-Diaz v. Massachusetts (2009) 557 U.S. _ [129 S.Ct. 2527] (Melendez-Diaz ).

Respondent argues that the holding in Melendez-Diaz was not unforeseen because that decision states that its holding is not new but a faithful application of Crawford.   This reasoning is circular;  the issue decided by Melendez-Diaz was whether it was a faithful application of Crawford to apply that case to forensic reports.

The facts of Melendez-Diaz are significantly different than those presented here.   Moreover, given the decision of our Supreme Court in Geier, the trial court would have been obliged to deny any objection to Gutstadt's testimony that was based on Toms' autopsy report, and, hence, it would have been futile to have raised it.

D. Crawford and its progeny

1.  Crawford line of cases

The Confrontation Clause 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 object of that clause is to “ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”  (Maryland v. Craig (1990) 497 U.S. 836, 845.)

In Crawford, the United States Supreme Court concluded that nontestimonial hearsay remains subject to state hearsay law and may be exempted from Confrontation Clause scrutiny entirely.  (Crawford, supra, 541 U.S. at p. 68.)   But where testimonial evidence is involved, “the Sixth Amendment demands what the common law required:  unavailability and a prior opportunity for cross-examination.”  (Ibid.) While the Supreme Court left for another day any effort to spell out a comprehensive definition of “ ‘testimonial’ ” (ibid.), it stated that it includes “ ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ”  (Id. at p. 52.)

In Davis v. Washington (2006) 547 U.S. 813 (Davis ), the Supreme Court elaborated on what constitutes testimonial statements.  (Id. at p. 822.)   In concluding that questioning during a 911 call is not testimonial hearsay, the Supreme Court held that, “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.   They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”  (Ibid.) Interrogations “solely directed at establishing the facts of a past crime, in order to identify (or produce evidence to convict) the perpetrator” are clearly testimonial.  (Id. at p. 826.)

In Geier, our Supreme Court held that a DNA report, testified to by the laboratory director who did not conduct the DNA test but oversaw testing and supervised the laboratories' six analysts who did the testing, was not testimonial for Crawford purposes because the observations in the report were a “contemporaneous recordation of observable events rather than the documentation of past events.”  (Geier, supra, 41 Cal.4th at p. 605.)   The Court emphasized that “the crucial point is whether the statement represents the contemporaneous recordation of observable events” and not whether “it might reasonably be anticipated [that the statement] will be used at trial.”  (Id. at pp.   606-607.)   Records of the laboratory protocols used and the results acquired are not accusatory.  “Instead, they are neutral, having the power to exonerate as well as convict.  [Citations.]”  (Id. at p. 601.)   Furthermore, the results were a business record and that even if they were hearsay, Gutstadt could rely on them for the purpose of formulating his opinion as a coroner.   (Id. at p. 608, fn. 13.)

2. Melendez-Diaz

Just weeks after the conclusion of the trial in this matter, the United States Supreme Court revisited the issue of out-of-court testimonial statements regarding forensic findings in Melendez-Diaz.   In that case, authorities arrested the defendant in possession of bags containing a substance that resembled cocaine.  (Melendez-Diaz, supra, 557 U.S. at p. _[129 S.Ct. at p. 2530].)   At trial, the prosecution placed into evidence the bags seized from the defendant and submitted three ‘ “certificates of analysis” ’ showing the results of the forensic analysis performed on the seized substances.   The certificates, which were prepared almost a week after the testing of the substance occurred, reported the weight of the seized bags and stated that the substance inside the bags ‘ “was found to contain:  Cocaine.” ’  (Id. at p. _ [129 S.Ct. at p. 2531].)   The certificates were sworn to before a notary public by analysts at the state's department of health laboratory, as required by Massachusetts law.  (Ibid.) Further, under Massachusetts law, “the sole purpose of the affidavits was to provide ‘prima facie evidence of the composition, quality, and the net weight’ of the analyzed substance․”  (Id. at p. _ [129 S.Ct. at p. 2532].)

In a four-vote plurality opinion and five to four decision, the United States Supreme Court held that these certificates of analysis were “quite plainly affidavits” and thus, “within the ‘core class of testimonial statements,’ ” subject to the confrontation restrictions in Crawford.  (Melendez-Diaz, supra, 557 U.S. at pp. _, _ [129 S.Ct. at pp.   2531-2532].)   Because the certificates were testimonial in nature, the defendant was entitled to confront the analysts who signed them absent a showing that the analysts were unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine them.  (Ibid.) At the conclusion of its decision, the majority noted that its holding in Melendez-Diaz was “little more than the application of [its] holding in Crawford ․” because the certificates in question were simply “ex parte out-of-court-affidavits,” which the prosecution could not rely on to prove its case.  (Id. at p. _ [129 S.Ct. at p. 2542].) 6

In Justice Thomas's concurring opinion, he expressed the view that testimonial evidence consisted of extrajudicial statements “ ‘only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [citations]” (Melendez-Diaz, supra, at p. _ [129 S.Ct. at p. 2543] [Thomas, J., concurring] ) and joined the plurality because “the documents at issue in this case ‘are plainly affidavits,’ ” and fell within “ ‘the core class of testimonial statements' governed by the Confrontation Clause.  [Citation.]”  (Ibid.)

3. Geier or Melendez Diaz

Appellant argues that the decision of the United States Supreme Court in Melendez-Diaz “called into question the continued viability of the Geier decision.”   We conclude that Geier is distinguishable from Melendez-Diaz on the bases discussed below, and based on those distinctions, and, the implicit limitations in Menendez-Diaz in light of Justice Thomas's concurring opinion, Geier is controlling here.

In Geier, the director of the laboratory where the DNA testing occurred testified that she supervised the work of six analysts in the laboratory, including the analyst who matched the DNA found on the victim's body to the defendant's DNA. (Geier, supra, 41 Cal.4th at p. 594.)   The director reviewed the testing conducted and determined that it was according to protocol.  (Id. at p. 596.)   The results of the DNA testing were admitted through the testimony of the director, who was subject to cross-examination.

In contrast, in Melendez-Diaz no live testimony was offered on the composition of the seized substance.   The admitted evidence consisted only of affidavits.   The United States Supreme Court emphasized that the affidavits “contained only the bare-bones statement” that the seized substance contained cocaine, and the defendant “did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed.”  (Melendez-Diaz, supra, 557 U.S. at p. _ [129 S.Ct. at p. 2537].)   The affidavits were not subject to cross-examination and the prosecution, under state law, could use them as “ ‘prima facie evidence of the composition, quality, and the net weight’ of the analyzed substance․”  (Id. at p. _ [129 S.Ct. at p. 2532].)

Here, unlike the affidavits held inadmissible in Melendez-Diaz, and similar to the expert testimony in Geier, there was live testimony by a coroner from the same office as the coroner who performed the autopsy, regarding the autopsy report and photographs.   Defense counsel was free to cross-examine the witness on his opinions regarding the contents of the autopsy report and the established office procedures for performing the autopsy.   In light of Justice Thomas's concurring opinion, it is questionable whether a majority of the United States Supreme Court would apply Melendez-Diaz to this situation which did not involve introduction of pure testimonial documents like affidavits, with no live witnesses.

Additionally, the DNA results in Geier “constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events.”  (Geier, supra, 41 Cal.4th at p. 605.)   In contrast, the affidavits in Melendez-Diaz were prepared a week after the actual testing occurred.   (Melendez-Diaz, supra, 557 U.S. at p. _ [129 S.Ct. at p. 2535].)   In this sense, the affidavits in Melendez-Diaz were much more like the narrative of past events to police officers deemed testimonial in Davis.

Like the DNA results held admissible in Geier, Gutstadt testified that the autopsy report was prepared in the ordinary course of the coroner department's business, at or near the time the autopsy was conducted and the results of the autopsy performed by Toms were recorded contemporaneously, on the same day that the autopsy was conducted.   The autopsy results were the “contemporaneous recordation[s] of observable events rather than the documentation of past events,” and were admissible as nontestimonial statements under Geier, supra, 41 Cal.4th at page 605.

Finally, Gutstadt gave expert opinions based upon the autopsy report of Toms. “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions.   This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents;  they are examined to assess the weight of the expert's opinion.”  (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.)

III. Sufficiency of evidence of gang enhancement

A. Contention

Appellant contends that due process requires reversal of the gang enhancement because it is unsupported by substantial evidence.   He argues that the shooting was committed spontaneously and was not gang-related because there was no evidence it was committed for the benefit of, at the direction of, or in association with a criminal street gang and that appellant committed the shooting with the specific intent to promote, further, or assist in criminal conduct by gang members.   We disagree.

B. Standard of review

The standard applicable to our review for sufficiency of the evidence to support a conviction, as set forth in part IB, ante, also applies when determining whether the evidence is sufficient to sustain a jury finding on a gang enhancement.  (See People v. Duran (2002) 97 Cal.App.4th 1448, 1456-1457;  People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)

C. Requirements for gang enhancement

The gang enhancement in 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 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);  People v. Hernandez (2004) 33 Cal.4th 1040, 1047.)   It applies when a crime is gang related.  (People v. Castenada (2000) 23 Cal.4th 743, 745.)

D. Evidence that offense gang related

There is sufficient evidence that appellant shot Rosas “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).)   Appellant was walking to Bell Plaza, with a loaded handgun, accompanied by Rodarte, a fellow gang member.   When they came upon Adrian and his companions, Rodarte, who knew Adrian, exchanged greetings with him.   Then, Rosas, an unarmed man in Adrians group, rapidly approached appellant and Rodarte aggressively and threateningly, yelling curses at them, identifying himself as a member of the rival 213 gang by shouting 213, yelling, Do you fuckers know me? and removing his shirt to display a gang tattoo across his chest.   He acted as if he was going to fight.   Rodarte felt threatened and was preparing to defend himself, while appellant said nothing in response.   After learning that Rosas was a rival gang member, without any warning, appellant stepped toward Rosas and shot, not once, but three times, though one bullet could have stopped the attack by an unarmed man.

Evidence introduced by the gang experts established that:  appellant and Rodarte were UMK gang members;  Rosas was a member of the rival 213 gang;  respect is a primary goal of a gang and its members;  a gang member gains respect by committing crimes for the gang;  including retaliating against a rival gang member who disrespects the gang;  shooting the person disrespecting the gang member would benefit the gang by creating fear in the citizens and benefit the member by enhancing his reputation in the gang, and the pressure on the insulted gang member to take action to save face might be increased by the presence of one of his or her fellow gang members.

Hence, having been disrespected by Rosas calling him names and referring to Rosass rival gang, appellant had to take forceful action or suffer a loss of respect.   The need to retaliate to save face for himself and his gang was increased by the presence of Rodarte, a fellow UMK gang member, who could report any failure of appellant to act, resulting in a loss of respect, or, could report appellants violent response, enhancing appellants reputation.   This provided a strong motivation for appellant to kill Rosas.

For the reasons, set forth above, there is sufficient evidence that appellant had the specific intent to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (b)(1)) when he responded to Rosas.7

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Crawford v. Washington (2004) 541 U.S. 36 (Crawford )..  FN2. Crawford v. Washington (2004) 541 U.S. 36 (Crawford ).

FN3. The May 25, 2007, tagging incident reviewed by Detective Dixon was as follows:  Los Angeles County Sheriff's Deputy Kenneth Felix saw appellant and another young male near benches in Smith Park, in the City of Pico Rivera.   The park bench where Deputy Felix observed appellant and his companion appeared to be freshly tagged with “UMK.” Appellant admitted to the deputy that he was a member of the UMK gang with the moniker “Joker.”   The male appellant was with also admitted to membership in the UMK gang with the moniker “Puppet” and had the letters “UMK” tattooed on his stomach.   A thick felt marker pen was recovered from appellant's companion, nothing from appellant.The Dean of Discipline at Bell High School, Leo Casanas, testified that appellant was a student at the school through the end of 2007, and to his knowledge was not a member of a gang..  FN3. The May 25, 2007, tagging incident reviewed by Detective Dixon was as follows:  Los Angeles County Sheriff's Deputy Kenneth Felix saw appellant and another young male near benches in Smith Park, in the City of Pico Rivera.   The park bench where Deputy Felix observed appellant and his companion appeared to be freshly tagged with “UMK.” Appellant admitted to the deputy that he was a member of the UMK gang with the moniker “Joker.”   The male appellant was with also admitted to membership in the UMK gang with the moniker “Puppet” and had the letters “UMK” tattooed on his stomach.   A thick felt marker pen was recovered from appellant's companion, nothing from appellant.The Dean of Discipline at Bell High School, Leo Casanas, testified that appellant was a student at the school through the end of 2007, and to his knowledge was not a member of a gang.

FN4. Numerous cases raising the issue of whether the results of a forensic report by an expert who did not conduct the testing violates the right to confrontation are now pending before the California Supreme Court.   (People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213;  People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620;  People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886;  People v. Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046;  People v. Benitez (2010) 182 Cal.App.4th 194, review granted and holding for lead case, May 12, 2010, S181137;  People v. Bowman (2010) 182 Cal.App.4th 1616, 1618, review granted and holding for lead case, June 9, 2010, S182172.).  FN4. Numerous cases raising the issue of whether the results of a forensic report by an expert who did not conduct the testing violates the right to confrontation are now pending before the California Supreme Court.   (People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213;  People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620;  People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886;  People v. Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046;  People v. Benitez (2010) 182 Cal.App.4th 194, review granted and holding for lead case, May 12, 2010, S181137;  People v. Bowman (2010) 182 Cal.App.4th 1616, 1618, review granted and holding for lead case, June 9, 2010, S182172.)

FN5. While respondent uses the term “ ‘waiver’ ” in reference to defendants' failures to preserve their instructional claims for appeal because they did not raise them in the court below, the correct term which we use in this opinion is “ ‘forfeiture.’ ”  “ ‘Waiver’ ” is the express relinquishment of a known right whereas “ ‘forfeiture’ ” is the failure to object or to invoke a right.  (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.).  FN5. While respondent uses the term “ ‘waiver’ ” in reference to defendants' failures to preserve their instructional claims for appeal because they did not raise them in the court below, the correct term which we use in this opinion is “ ‘forfeiture.’ ”  “ ‘Waiver’ ” is the express relinquishment of a known right whereas “ ‘forfeiture’ ” is the failure to object or to invoke a right.  (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.)

FN6. Four days after issuing its decision in Melendez-Diaz, the United States Supreme Court denied certiorari in Geier.  (Geier, supra, 41 Cal.4th 555, cert. den. sub nom.  Geier v. California (2009) _ U.S. _ [129 S.Ct. 2856].).  FN6. Four days after issuing its decision in Melendez-Diaz, the United States Supreme Court denied certiorari in Geier.  (Geier, supra, 41 Cal.4th 555, cert. den. sub nom.  Geier v. California (2009) _ U.S. _ [129 S.Ct. 2856].)

FN7. Relying on Garcia v. Carey (9th Cir.2005) 395 F.3d 1099, 1103-1104, appellant argues that he was required to have an intent to benefit a criminal street gang, apart from the charged offense, and such evidence is absent.   While we agree there was no such evidence presented here, we disagree that appellant must have an intent broader than the intent to benefit the gang in regard to the charged offense.  (People v. Vazquez (2009) 178 Cal.App.4th 347, 353;  People v. Hill (2006) 142 Cal.App.4th 770, 774;  People v. Romero (2006) 140 Cal.App.4th 15, 19 (Romero ).).  FN7. Relying on Garcia v. Carey (9th Cir.2005) 395 F.3d 1099, 1103-1104, appellant argues that he was required to have an intent to benefit a criminal street gang, apart from the charged offense, and such evidence is absent.   While we agree there was no such evidence presented here, we disagree that appellant must have an intent broader than the intent to benefit the gang in regard to the charged offense.  (People v. Vazquez (2009) 178 Cal.App.4th 347, 353;  People v. Hill (2006) 142 Cal.App.4th 770, 774;  People v. Romero (2006) 140 Cal.App.4th 15, 19 (Romero ).)