THE PEOPLE v. ROBERTO SPENCER (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellants Roberto Spencer, Uriel Hernandez and Kevin Hernandez were tried together for robbery, assault and vandalism.   Roberto and Uriel were tried by the same jury;  Kevin was tried by a separate jury.

Kevin was convicted of one count of robbery in violation of Penal Code ¹

section 211 (Avila), two counts of assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1) (Avila and Saravia) and two counts of vandalism in violation of section 594, subdivision (b).  The jury found true the allegations that Kevin personally used a deadly and dangerous weapon in the commission of the robbery within the meaning of section 12022, subdivision (b)(1) and that he committed the vandalism for the benefit of a criminal street gang within the meaning of section 186.22.   The jury could not reach a verdict on a second robbery count (Cerna) or on the gang allegations associated with the assaults.   After trial, Kevin pled no contest to the second robbery count and admitted the gang allegation associated with the robbery charge.   The trial court sentenced Kevin to a total term of 12 years, 8 months in state prison.

Roberto was convicted of one count of robbery (Cerna), one count of simple assault as a lesser included offense of the charged aggravated assault (Avila) and two counts of vandalism.   The jury found true the allegations that Roberto personally used a deadly and dangerous weapon in the commission of the crimes within the meaning of section 12022, subdivision (b)(1) and that he committed the crimes for the benefit of a criminal street gang within the meaning of section 186.22.   The jury acquitted Roberto of a second robbery count (Avila) and a second assault count (Saravia).   The trial court sentenced Roberto to a total term of 13 years in state prison.

Uriel was convicted of one count of robbery (Cerna), one count of assault by means of force likely to produce great bodily injury (Saravia), one count of simple assault (Avila) and one count of vandalism (Fun Zone).   The jury found true the allegations that Uriel personally used a deadly and dangerous weapon in the commission of the crimes within the meaning of section 12022, subdivision (b)(1) and that he committed the crimes for the benefit of a criminal street gang within the meaning of section 186.22.   The jury acquitted Uriel of a second robbery count (Avila) and a second vandalism count (Los Comales).   The court sentenced Uriel to a total term of 14 years in state prison.

Appellants appeal from the judgment of conviction, contending that there is insufficient evidence to support the gang enhancements and that much of Officer Guillen's expert witness testimony was improper.   Roberto contends that the trial court erred in admitting hearsay statements by Jung Ill Kim, a witness.   Uriel and Kevin also contend that the trial court erred in admitting images taken from a MySpace.com page and late-disclosed photographs of Avila and Saravia.   Uriel further contends that there is insufficient evidence to support the jury's finding that he committed felony vandalism or the court's imposition of a restitution order for that vandalism.   Kevin joins in the contentions of Uriel and Roberto to the extent they are applicable to him.

We affirm the judgments of conviction.

Facts

Between 6:35 and 6:45 p.m. on May 11, 2008, surveillance cameras at the Fun Zone arcade showed Uriel, Kevin and Roberto outside the arcade.   The cameras showed Uriel pointing at a wall.   Shortly thereafter, the cameras showed Kevin spray-painting that wall.   The cameras also showed Kevin and Roberto spray-painting graffiti on another Fun Zone wall, and on the wall of 811 S. Normandie.   The graffiti on one of the Fun Zone walls said “V HTS XIII” and “Fuck MS.” The graffiti on the other wall and on the wall across the street were similar.   HTS stands for Hobart Street Thugs, a gang.   MS stands for the name of another gang, a rival of HTS.

About 6:45 p.m., Jung Ill Kim was in his car, waiting for the stoplight to change at the intersection of 8th and Irolo Streets.   The intersection was one block west of the Fun Zone Arcade.   He saw Kevin enter Los Comales restaurant, bump into David Savaria, then throw a chair at Savaria and begin to beat him up.   At the same time, Roberto was spray-painting graffiti on the exterior of the restaurant.   This graffiti said “V HTS X3.”

Kevin's altercation inside the restaurant was also observed by Luis Cerna, a restaurant customer.   He saw Kevin hit Savaria on the chin, then kick Savaria when he fell to the ground.   Savaria covered his face with his hands and did not hit or kick back.   Uriel, who had been holding the door, joined Kevin in kicking Savaria.   Eventually Kevin and Uriel left the restaurant.

Cerna left the restaurant, walked past appellants and crossed the intersection to John's Market.   Cerna looked back and saw appellants cross Irolo and go toward a bakery.   Luis Avila yelled at appellants and asked why they had hit Savaria.   Avila then ran away, but appellants followed.   Cerna crossed Irolo and saw Kevin hit Avila across the face with a beer bottle.   Avila fell to the ground and appellants hit and kicked him.

From his car, Kim saw Kevin hit Avila with the beer bottle and then hit and kick him.   Kim saw Kevin and Uriel join in.   Kim told one of his friends to call 911.   According to Kim, this attack took place before the attack on Savaria in the restaurant.

Cerna went back to John's Market.   Appellants followed and gathered around him.   Roberto pulled out a knife and said, “Give me the money.”   Cerna gave Roberto $250 from his pocket.   Appellants left.

Los Angeles Police Department Gang Officers Allan Corrales and Ramon Guillen were on patrol in the area when they received a call about the incidents at 8th and Irolo.   They learned that a helicopter had spotted several suspects running south on Irolo.   The officers turned onto Olympic and saw Kevin run across the street.   Officer Corrales recognized Kevin from previous encounters.   The officers chased Kevin on foot and caught him behind a building.

Officer Corrales then heard radio reports that two other suspects were in the area and were heading in the officers' direction.   Officer Corrales turned around and saw Roberto coming around the corner.   Officer Corrales knew Roberto from a previous encounter.   Roberto saw him and ran away.   Officer Corrales ran after Kevin, and saw Uriel, who he also knew from a previous encounter.   The officer then tripped, and somersaulted onto his back.   When he got up, he saw that Uriel was standing on the sidewalk.   Roberto came back and joined Uriel.   Officer Corrales handcuffed both men.

Avila ran up to the officers, pointed at Kevin, and said, “That's one of the sons of a bitches who stole my i-Pod and broke a bottle on my face.”   The officers also spoke with Kim and Cerna, who each identified appellants in separate field show-ups as the perpetrators of the crimes at 8th and Irolo.   The officers photographed Savaria's injuries.

Officer Corrales went to 8th and Irolo and saw fresh spray-painted HTS graffiti on the outside wall of Los Comales.   The officer then went to the Fun Zone arcade, where he saw more fresh spray-painted HTS graffiti on the Fun Zone's outside walls and on the wall of a liquor store across the street.   Officer Corrales also found fresh spray-painted graffiti on a traffic control box at 8th and Normandie.   The graffiti on the box said “HTS” and “X3.”

Officer Corrales testified at trial that HTS was a small gang and that in his experience, members of small gangs are more cooperative with the police.   They allow their photographs to be taken to “put their name out there.”   They need to enhance the gang's reputation and make it appear bigger than it is in order to intimidate the community.

Officer Guillen testified as an expert on gangs.   He grew up inside the gang culture, although he had not been personally involved in a gang.   After he joined the police force, he received formal training on gangs, including eighty hours of instruction from gang experts.   As a patrol officer, he made a lot of gang stops and gang arrests and was then transferred to the gang unit.   There, he attended conferences hosted by ex-gang members, seminars on specific gangs and classes on gang-related topics such as tattoo identification.   Through his work as a gang officer, he spoke with gang members on the street, helped serve search warrants on gang members, and sat in on interviews other officers conducted with gang members.   He also received gang-related information at roll calls.

Officer Guillen explained that gangs have internal hierarchies.   Newer members put up graffiti, act as look-outs or commit other small crimes.   They rise up through the ranks by committing more notable crimes.   The wilder and more violent the crime, the faster the gang member advances through the gang's ranks.

A “mission” is a crime committed by or on behalf of a gang by groups of gang members.   If a gang member does not show up for a mission or does not protect his fellow gang members during the mission, he will be beaten up.   He will also lose respect within the gang.   Respect is very important to gang members.

Committing a drive-by shooting is one type of mission.   Putting up graffiti is another.   Putting the graffiti up in the territory of a rival gang earns the most respect.   The rival gang will usually cross out the graffiti within hours of it being put up.   This is the ultimate form of disrespect.

HTS is a small gang affiliated with the Mexican Mafia.   Officer Guillen estimated that HTS had about 50 members, of which about 15 were active.   The gang's territory is bordered by Normandie and Irolo on the east, Serrano on the west, 7th or 8th Street on the north and 11th Street on the south.

Officer Guillen had spoken to about 15 HTS gang members, investigated crimes committed by and against HTS and served search warrants on HTS members, including appellants.   The primary activities of HTS include attempted murder, carjacking, grand theft auto, robbery, assault with deadly weapons, extortion, burglaries, trespassing and vandalism.   His knowledge of these activities was based on his investigation of the gang's crimes, the arrests of HTS gang members he knew, police reports and information from other police officers.   Specifically, HTS member Cesar Flores pled guilty to assault with a deadly weapon, HTS member Tomas Bernabe pled guilty to felony vandalism and HTS member Joshua Lopez pled guilty to possession of a handgun.

Officer Guillen knew Kevin and Roberto.   He had spoken to Kevin about five times.   Kevin admitted that he was a member of HTS. He had several HTS tattoos, including one on each hand.   Officer Guillen had spoken with Roberto five to ten times.   Roberto admitted that he was a member of HTS. He told Officer Guillen how much he hated Mara Salvatrucha, a rival gang.

Officer Guillen had spoken with Uriel once.   At first, Officer Guillen thought that Uriel was Kevin because there was a strong family resemblance.   Uriel said that he was Kevin's brother, and admitted that he also belonged to HTS.

Officer Guillen found a MySpace page in the name of Kevin Hernandez, with an email user name of LosHobartGrandes.   Gang photographs, images and writings downloaded from that page were introduced at trial.   In some of those photographs, Kevin, Uriel and Roberto were shown making gang signs.

Officer Guillen was given hypotheticals based on the facts of the charges in this case, and he opined such crimes would have been committed to benefit the perpetrators' gang.   He explained how the crimes would increase the gang's reputation and, in the case of the robberies, provide income.

Appellants did not testify or present an affirmative defense.

Discussion

1. Sufficiency of the evidence—gang enhancement

Uriel contends that all of his convictions are based on conspiracy liability, that the conspiracy was alleged to be benefitting a criminal gang, that there is insufficient evidence that HTS was a criminal gang and that all of his convictions must be reversed because they are based on a factually inadequate theory.   In the alternative, he contends that even if his convictions were based on aiding and abetting liability, there is insufficient evidence to support the true findings on the gang allegations, and those allegations must be stricken.   Roberto separately contends that there is insufficient evidence to show that the crimes were for the benefit of a criminal street gang.   Kevin joins in these contentions.   We do not agree.

a. Primary activity

A criminal street gang is “any ongoing ․ group of three or more persons ․ having as one of its primary activities the commission of one or more” specified crimes and “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, subd. (f).)

Uriel contends that the following testimony from Officer Guillen is insufficient to show that HTS had as one of its primary activities the commission of criminal acts:

Prosecutor:  “Are you familiar with the primary activities of the Hobart Street Thugs?”

Officer Guillen:  “Yes, I am.”

Prosecutor:  “And what are their primary activities?”

Officer Guillen:  “I mean, I have seen arrests in all those members that I have mentioned earlier.   I have either read reports, talked to other officers, been involved in it myself, in investigations that – everything from attempted murder, carjacking, G.T.A., or grand theft auto, robberies, a lot of A.D.W.s, or assault with deadly weapons, a recent case for – a big case for extortion, a lot of vandalisms, even drunk in publics, trespassing, burglaries.   That's pretty much it.”

Uriel contends that the list of crimes given by Officer Guillen was not responsive to the prosecutor's question because it was limited to crimes that he suspected the gang had committed.   Uriel argues that since the answer was non-responsive, it did not incorporate the question and cannot be understood as saying that the gang was primarily engaged in criminal activities.

It is more than reasonable to understand Officer Guillen's answer as stating that the primary activities of the gang are criminal acts.   An answer need not repeat the words of the question to be responsive and comprehensible.   “Ordinary human communication often is flowing and contextual.   Jurors know this.”  (See People v. Margarejo (2008) 162 Cal.App.4th 102, 107 [rejecting claim that expert's testimony was insufficient because he did not repeat the word primary in response to question about a gang's primary activities].)   To give just one of an almost unlimited number of examples, a person may answer the question, “How old are you?' without using the word “old” (or even related words such as “age” or “years”) and still have responded understandably to the question.   If the person responds “21,” the most reasonable understanding of the answer is that the person is 21 years old.   If the question is asked in February 2000, and the person replies, “I was born in January 1950,” then the answer means that the person is 50 years old.

Uriel also contends that Officer Guillen's testimony is insufficient because it lacks foundation and is speculative because it was not based on reliable sources like court records.   Officer Guillen relied on a number of sources, including court documents and his own investigations of crimes, as well as reports prepared by and conversations with fellow officers to give his answer.   The first two categories are reliable.   The latter two categories are hearsay, but an expert may rely on hearsay in forming his opinion.   Officer Guillen's testimony is substantial evidence to prove that the gang's primary activities are criminal acts.  (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1330;  People v. Duran (2002) 97 Cal.App.4th 1448, 1464.)

b. Intent to benefit gang

Uriel and Roberto each separately contend the gang expert's opinion that the crimes were committed for the benefit of HTS was not based on reliable methodology or foundation, but was mere speculation and so there is insufficient evidence to show that the crimes were committed for the benefit of a gang.

Section 186.22 applies to any person who 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.”  (Subd. (b)(1), emphasis added.)   Thus, the requirements of section 186.22 may be satisfied by a showing that the crime was committed “in association with” a gang and the defendant acted with the specific intent to “assist” any criminal conduct by fellow gang members.  (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)

Officer Guillen offered percipient testimony that Kevin, Roberto and Uriel had each told him in the past that they were members of the HTS gang.   There is nothing speculative about this testimony.   These statements were admissible under long-established exceptions to the hearsay rule.  (Evid.Code, §§ 1220, 1230.)   Victim and witness testimony established that the three men committed the crimes together.

Where the evidence shows that a gang member defendant commits a crime in association with one or more fellow gang members it is “fairly inferable that he intended to assist criminal conduct by those gang members.”  (People v. Morales, supra, 112 Cal.App.4th at p. 1198;  see also People v. Vazquez (2009) 178 Cal.App.4th 347, 353–354 [“if substantial evidence establishes that the defendant is a gang member who intended to commit the charged felony in association with other gang members, the jury may fairly infer that the defendant also intended for his crime to promote, further, or assist criminal conduct by those gang members”];  People v. Leon (2008) 161 Cal.App.4th 149, 163;  People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)

There is also sufficient evidence apart from Officer Guillen's testimony to support a reasonable inference that appellants intended to benefit their gang.

Between 6:35 and 6:45 p.m., appellants were videotaped spray-painting gang graffiti on the walls of the Fun Zone at 8th and Normandie and on the wall of a nearby business at 811 S. Normandie.   Fresh HTS graffiti was also found on a traffic control box in the intersection of 8th and Normandie.

Witness and victim testimony showed that about 6:45 p.m. appellants were outside the Los Comales restaurant at 8th and Irolo, one block from 8th and Normandie.   Roberto spray-painted gang graffiti on the wall of the restaurant.   It is more than reasonable to infer that appellants were spray-painting gang graffiti to promote their gang.

After announcing the gang's presence with the graffiti, Kevin and Uriel assaulted Savaria.   When appellants left the restaurant, Avila questioned why appellants had attacked Savaria.   Appellants assaulted Avila and Kevin robbed him.   Appellants then turned their attention to Cerna, who had been in the restaurant during the assault on Savaria.   Appellants robbed Cerna.   It is reasonable to infer that the robberies and assaults were connected and were planned to coincide with the graffiti.   Thus, it is reasonable to infer that appellants wanted the public to know that HTS was responsible for the robberies and assaults, and that they viewed this as a positive thing for the gang.   This is sufficient to show a specific intent to benefit HTS.

c. Hearsay

All three appellants individually contend that the trial court erred in admitting hearsay evidence relied upon by Officer Guillen, and that this error violated their constitutional right to confrontation.

In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court held that Sixth Amendment bars the introduction of a witness's testimonial hearsay statements at trial unless the witness is unavailable and the defendant has had an opportunity to cross-examine the witness.  (Id. at pp. 68–69.)   States may apply their own laws to non-testimonial hearsay.   (Id. at p. 68.)

Under California law, it is well settled that a gang expert may rely on conversations with gang members, information gathered by other law enforcement officers, his or her own personal investigations of gang-related activities and other relevant information.   The holding of “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, 1210;  see People v. Sisneros (2009) 174 Cal.App.4th 142, 153–154;  see also People v. Cooper (2007) 148 Cal.App.4th 731, 746–747;  People v. Fulcher (2006) 136 Cal.App.4th 41, 56–57.)

Appellants urge us to find that People v. Thomas, supra, was wrongly decided and to reject it and its progeny.   We decline to do so.   We see no flaws in the reasoning of the case.

Uriel contends that Thomas is no longer good law following the United States Supreme Court's decision in Melendez–Diaz v. Massachusetts (2009) _ U.S. _ [129 S.Ct. 2527].)  Melendez–Diaz concerns the admission of a forensic expert's sworn certificate in lieu of live testimony by that expert to prove the substance seized from the defendant was contraband.   The Court found that the certificate was a testimonial statement and was inadmissible under Crawford.  (Id. at pp. 2531–2532.)   Nothing in Melendez–Diaz would have prevented the expert from testifying about hearsay sources he relied on in conducting the analysis of the substance had the expert appeared at trial.   Such “live” expert testimony is what occurred in Thomas and so Melendez–Diaz has no effect on Thomas.

d. Expert qualifications

Uriel contends that Officer Guillen was not qualified to testify as an expert.   Uriel did not object on this ground in the trial court and so has forfeited his claim on appeal.   Uriel contends that an objection would have been futile because the trial court was bound by decisional precedent holding that police officer training and experience are sufficient foundation to render an expert opinion on gangs.   Obviously, the amount of training and experience will vary by police officer.   Some will be qualified to be experts while others will not.   Thus, Uriel has forfeited his claim that Officer Guillen was not qualified to be an expert.²

To the extent that Uriel contends that no amount of police officer training and experience is sufficient to qualify an officer as a gang expert, we agree that such a claim would have been futile.   We thus consider this claim, and reject it.   Uriel contends that the formal training police officers receive on gangs is much less than one would receive if one were majoring in a subject in college and so is insufficient.   He also contends that only someone with an advanced degree in sociology or psychology could be qualified to use proper methodology to gather field information on gangs and to analyze that information.

The degree of training and experience needed to qualify as an expert on a subject will vary with the subject.   A car mechanic with little formal education might qualify as an expert on the engines in the make of car he has worked on every day for several years.   Advanced degrees in engineering or physics might be needed to qualify as an expert on a rocket engine.

Gang culture is not that complicated.   Police officers receive formal training on gangs.   They also observe gang behavior, speak with gang members, and compare their observations and experiences with fellow police officers.   Over time, this is sufficient to qualify them as experts on gangs.  (People v. McDaniels (1980) 107 Cal.App.3d 898, 902–903;  see People v. Gamez (1991) 235 Cal.App.3d 957, 966;  People v. Olguin (1994) 31 Cal.App.4th 1355, 1370;  People v. Gardeley (1996) 14 Cal.4th 605, 619–620.)

e. Ineffective assistance of counsel

Uriel contends that his counsel should have objected that Officer Guillen's opinion testimony went to the ultimate issue in the case and that counsel's failure to object constituted ineffective assistance.   Kevin joins this claim.

Appellant has the burden of proving ineffective assistance of counsel.   (People v. Pope (1979) 23 Cal.3d 412, 425.)   In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable.  (Strickland v. Washington (1984) 466 U.S. 668, 687–688, 694;  People v. Ledesma (1987) 43 Cal.3d 171, 216–218.)  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  (Strickland v. Washington, supra, 466 U.S. at p. 694.)

The prosecutor gave Officer Guillen a series of hypothetical scenarios in which four members of the Hobart Street gang committed tagging, assaults and robberies under circumstances identical to the facts in this case and asked if in the officer's opinion, the crimes were committed for the benefit of the criminal street gang.   Officer Guillen replied:  “[J]ust in general the crime itself is definitely in furtherance of that gang.”

A gang expert is permitted to give an opinion in response to a hypothetical question that assumes the truth of the evidence presented to prove the charged offense.  (People v. Gardeley, supra, 14 Cal.4th at pp. 618–619.)   Opinion testimony “is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.”  (Evid.Code, § 805.)   An expert may offer an opinion on the reason a crime was committed and whether it was committed for the benefit of a criminal street gang.  (See, e.g., People v. Valdez (1997) 58 Cal.App.4th 494, 507–509;  People v. Olguin, supra, 31 Cal.App.4th at pp. 1367–1371.)

Uriel contends that Officer Guillen's opinion testimony went farther than that and amounted to the officer's belief about the subjective knowledge and intent of each defendant.   Uriel contends that such testimony is improper under People v. Killebrew (2002) 103 Cal.App.4th 644.   We do not agree.

The above-quoted response by Officer Guillen makes it clear that he is speaking “in general.”   The officer elaborated on this answer by explaining, in general terms, how the crimes would benefit the gang.   For example, Officer Guillen testified that the rival M.S. gang would be upset, but would think it was brave of Hobart gang members to tag M.S. territory.   He explained that the crimes would intimidate members of the public and make it easier for the gang to successfully commit future crimes.   He also explained that money obtained from crimes was often used to support gang members in prison.   Thus, Officer Guillen's testimony was focused on how the gang would benefit from the crimes, a subject which is appropriate for expert testimony.

In Killebrew, the expert testified that each of the individuals in three separate cars knew that there was a gun in the Chevrolet and a gun in the Mazda, and jointly possessed the gun with all the others for their mutual protection.  (People v. Killebrew, supra, 103 Cal.App.4th at p. 658.)   There was no direct evidence of such knowledge or intent.   The court noted that testimony that “oftentimes gang members traveling together may know if one of their group is armed, would have been admissible.”  (Ibid.)

Here, Officer Guillen's testimony was much closer to the general testimony found acceptable by the Court in Killebrew than to the unacceptable specific testimony about the actual state of mind of the defendants in that case.   Counsel was not ineffective in failing to object to the testimony.   Counsel is not required to make futile objections or meritless motions to exclude.   (People v. Price (1991) 1 Cal.4th 324, 386–387 [futile objection];  People v. McPeters (1992) 2 Cal.4th 1148, 1173 [meritless argument];  People v. Ochoa (1998) 19 Cal.4th 353, 427–428, 432 [meritless motion to exclude].)

f. Late-discovered photographs

Kevin and Uriel contend that the trial court erred in admitting late-discovered photographs of Avila and Savaria taken after the assaults.

Kevin did not object that the admission violated his federal right to due process and so has forfeited that objection.  (People v. Alvarez (1996)14 Cal.4th 155, 186.)

Uriel did not join Kevin's objection in the trial court and so has forfeited his claim altogether.  (See People v. Wilson (2008) 44 Cal.4th 758, 793 [“[g]enerally, failure to join in the objection or motion of a codefendant constitutes a waiver of the issue on appeal”].)

Section 1054.1 provides:  “The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating parties.”   The materials and information to be turned over include “[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged.” (§ 1054.1, subd. (c).)  This information must be disclosed at least 30 days prior to trial unless good cause is shown. (§ 1054.7.) If material or information becomes known to or comes into the possession of a party within 30 days of trial, it must be disclosed immediately unless good cause is shown.  (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758;  § 1054.5.)

A trial court has a wide range of sanctions it may impose in response to a prosecutor's violation of a discovery order.  (People v. Ayala (2000) 23 Cal.4th 225, 299.)   A trial court's ruling on disclosure matters is reviewed for an abuse of discretion.  (Ibid.) The defendant has the burden of showing that the failure to timely comply with any discovery order is prejudicial and that a continuance would not have cured the harm.  (People v. Carpenter (1997) 15 Cal.4th 312, 386–387.)

The only prejudice identified by Kevin was the possibility that the prosecutor would have been able to locate Avila if he had discovered the photograph earlier.   Kevin did not explain how Avila's presence at trial would have assisted the defense.   Further, the trial court offered the defense a continuance if they needed one to deal with the photographs, but the defense did not pursue this offer.³

Uriel suggests in his brief that he might have believed that without photographs the prosecution could not prove that Uriel used force likely to produce great bodily injury.   He also suggests that the defense might have sought medical records or witnesses to show that Savaria had facial injuries before the assault.   Even assuming that Uriel had not forfeited his claim by failing to join Kevin's objections, he did not voice these possibilities at trial and did not seek a continuance to look for such evidence, and does not contend on appeal that such evidence in fact exists.

Since appellants have not shown any prejudice from the late disclosure and have not explained why a continuance would not have cured the harm they do claim, the trial court did not abuse its discretion in admitting the photographs.   For the same reason, we see no abuse of discretion in the trial court's decision not to instruct the jury with CALCRIM No. 306 on the possible prejudice from late disclosed evidence.⁴  (See People v. Zamora (1980) 28 Cal.3d 88, 99 [in deciding to impose sanction for late-disclosed evidence, court should consider materiality of evidence;  immaterial evidence invokes no sanction].)

g. Hearsay related by Kim

At trial, Kim testified that, during the assault on Avila, a passenger in his car said, “Oh, look at that, they are beating up this guy.”   Kevin objected that this statement was hearsay.   The prosecutor contended that the statement was admissible as a “present sense impression” to the hearsay rule, and it appears that the trial court agreed.   On appeal, Roberto contends that the trial court erred in admitting the statement because California law does not recognize a “present sense impression” exception to the hearsay rule.   Kevin joins in Roberto's argument on appeal.

Roberto did not object to the statement in the trial court.   Accordingly, he has forfeited his claim.  (See People v. Wilson, supra, 44 Cal.4th at p. 793.)   Kevin did object on hearsay grounds in the trial court.   We consider his claim.

As respondent acknowledges, California law does not recognize a “present sense impression” exception to the hearsay rule.   Federal law does recognize such an exception, which applies to “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”  (Fed. Rules Evid., rule 803(1).)

We review the trial court's ruling, not its reasoning.  (People v. Lee (2003) 31 Cal.4th 613, 617;  In re Lucero L. (2000) 22 Cal.4th 1227, 1249–1250.)

California law does recognize a spontaneous statement exception to the hearsay rule.  (Evid.Code, § 1240.)  Evidence Code section 1240 defines a spontaneous statement as one which “(a) [p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant;  and [¶] (b) [w]as made spontaneously while the declarant was under the stress of excitement caused by such perception.” ⁵  The policy reasons underlying the spontaneous statement exception and the Federal Rule's present sense impression exception are the same.   Both types of statements are deemed more reliable than the usual hearsay statement because the declarant has little time or opportunity to formulate a lie.  (Merritt & Simmons, Learning Evidence, ch. 40., p. 503.)

Here, Kim testified that his passenger seemed surprised and spoke in a loud voice.   He also testified that the assault was happening as the passenger spoke.   Thus, the passenger's statement qualified under the spontaneous statement exception to the hearsay rule and the trial court did not err in admitting it.  (See, e.g., People v. Provencio (1989) 210 Cal.App.3d 290, 302;  People v. Riva (2003) 112 Cal.App.4th 981, 994–995.)

Even assuming for the sake of argument that the trial court had erred in admitting the evidence, that error was harmless under any standard of review.   Kim was seated next to the passenger, also saw the assault and was present in court.   The passenger's brief statement about the fact of the assault could not possibly have influenced the jury.

h. MySpace page

Kevin contends that the trial court erred in admitting photographs from a MySpace internet page into evidence without authentication.   Uriel contends that the photos lacked foundation and were irrelevant and prejudicial.

Assuming for the sake of argument that the photographs were not authenticated and lacked foundation, we see no reasonable probability that appellants would have received a more favorable outcome if the photos had not been admitted.   The only possible prejudice from the photos came from showing appellants making gang signs, standing near gang graffiti and associating with other gang members.   Officer Guillen testified that all three appellants had admitted to him that they were members of HTS. Kevin had HTS tattoos and was videotaped spray-painting HTS graffiti on the wall of the Fun Zone. Officer Corrales had personally photographed Roberto making HTS gang signs.   Officer Corrales also testified that Uriel admitted to him that he was a member of HTS.

i. Felony vandalism – Uriel

Uriel contends that there is insufficient evidence to support his conviction for felony vandalism, and that it must be reduced to a misdemeanor.   Specifically, he contends that there is insufficient evidence that the amount of the damages was $400 or more.

The offense of vandalism is a felony if “the amount of defacement, damage, or destruction is four hundred dollars ($400) or more.” (§ 594, subd. (b)(1).)

Here, the only evidence of the amount of the damage came from the testimony of Gerry Valido, a management analyst with the City of Los Angeles Department of Public Works, Office of Community Beautification.   Valido testified that his office assigned a value of $450 to the cost of cleaning up graffiti on the wall of a privately owned building.   This cost consisted of the cost of the graffiti abatement program, divided by the number of locations that were abated.   He identified the costs as the cost of vehicles and equipment, insurance, wages, paint and other supplies.   As Valido explained, graffiti abatement was a multistep process, which involved obtaining permission from the owner, preparing the site, color-matching the paint or other material used to cover the graffiti and actually painting or covering the graffiti.   The costs were determined before Valido came to the department and had not been adjusted for inflation in many years.

This is substantial evidence that the cost of the repair to the Fun Zone was at least $450.   We see nothing improper in the way the cost was calculated.   Allocating a portion of overhead costs to the cost of service being purchased by customers is a common and necessary business practice.   Some businesses choose to offer a flat rate for a service even though some jobs will be shorter or longer than average, both to simplify its accounting and to attract customers.

Uriel suggests that the actual cost may have been lower.   We see no basis for such a conclusion.   There was graffiti on two walls of the Fun Zone, so it was not an unusually small project.   The figure was based on old costs, which would certainly have risen in the period since the costs were first used.   Further, it does not appear that the City added in any amount for profit, which a private business would certainly have done.

Uriel complains that the City did not do the actual work, but used a non-profit organization to do it.   He asserts that there is no evidence that the City paid the organization $450, or even paid the organization at all.   Simply because an organization is non-profit does not mean that its employees work for free.   Valido referred to the non-profit organization as a contractor, which creates an inference of compensation.   Some businesses use contractors, or sub-contractors, to perform work for them as a normal part of the business.   Depending on circumstances, the business may consider the cost of the contractor as part of overhead costs, simply pass through the cost of the contractor to its customers, or the business may add a mark-up.

j. Restitution – Uriel

Uriel contends that, for the reasons listed in section i, supra, the evidence is insufficient to support the trial court's order imposing restitution in the amount of $450.   Uriel did not object to the restitution order when it was imposed.   In fact, he stipulated that he would pay $450 in restitution to the City. Thus, he has forfeited his claim.  (People v. Brasure (2008) 42 Cal.4th 1037, 1075;  People v. Prosser (2007) 157 Cal.App.4th 682, 692.)

Kevin has joined Uriel's claims on appeal to the extent that they are applicable to him.   Kevin was sentenced separately from Uriel and entered into a plea agreement disposing of certain counts and allegations on which the jury hung.   As part of that agreement, Kevin agreed that he would pay $450 in restitution to the City. Accordingly, Kevin has also waived this claim.

Disposition

The judgments of conviction are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

KUMAR, J.^*

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. Kevin purports to join in this claim, but his claim is forfeited as well..  FN2. Kevin purports to join in this claim, but his claim is forfeited as well.

FN3. Cerna was on the witness stand when the photographs were produced.   The trial court did not agree to the defense's request for a delay in Cerna's identification of the men in the photographs, but also made it clear that the court would be willing to consider a continuance after Cerna's testimony was complete..  FN3. Cerna was on the witness stand when the photographs were produced.   The trial court did not agree to the defense's request for a delay in Cerna's identification of the men in the photographs, but also made it clear that the court would be willing to consider a continuance after Cerna's testimony was complete.

FN4. CALCRIM No. 306 provides in pertinent part:  “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law.   Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial.  [¶] Until [date], an attorney for the People failed to disclose:  [description of late-disclosed information] [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”.  FN4. CALCRIM No. 306 provides in pertinent part:  “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law.   Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial.  [¶] Until [date], an attorney for the People failed to disclose:  [description of late-disclosed information] [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”

FN5. There were a number of bases on which the trial court could have admitted the passenger's statement.   For example, the trial court could have admitted the statement for the limited purpose of explaining why Kim's attention was directed to the fight.   In that case, the statement would not have been used for the truth of the matter asserted and so would not have been hearsay..  FN5. There were a number of bases on which the trial court could have admitted the passenger's statement.   For example, the trial court could have admitted the statement for the limited purpose of explaining why Kim's attention was directed to the fight.   In that case, the statement would not have been used for the truth of the matter asserted and so would not have been hearsay.

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

KREIGLER, J.