BACKGROUND

Los Angeles Police Department Officer Josue Osorio was assigned to the

Northeast Division Gang Enforcement detail. His duties included gathering intelligence

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

2 on gang members, which he did by building a rapport with them, maintaining contact

with them, staying up to date with their activities, and conducting gang investigations.

His regular patrol covered the area claimed as turf by the Avenues street gang, as well as

the Highland Park, Cypress Park, and Dog Town street gangs. The turf claimed by the

Avenues covered certain areas of Los Angeles, which are also described in an injunction

prohibiting members of the Avenues from engaging in certain activities in this area,

which is referred to as a “Safety Zone.”2

On January 18, 2012, at approximately 7:35 p.m., the officer was near 3407 Drew

Street in the City of Los Angeles. This address was within the Avenues territory. At that

time, the officer received a radio call regarding a gang group. When he arrived at the

address, he observed Minor, with whom the officer had had prior contacts. Minor, who

had previously admitted being a member of the Avenues, was in the company of O.A.,

also known to be a member of the Avenues street gang, at the rear of an apartment

building at the Drew Street address, conversing or hanging out.

As Officer Osorio and his partner approached, Minor and O.A. looked in their

direction and then ran away northbound to an adjacent apartment building, and hopped

over a concrete wall. Officer Osorio observed a dark object in Minor’s hands, which

2 By order dated June 25, 2013, on the court’s own motion we took judicial notice of the following documents from Los Angeles Superior Court case No. BC 287137: (1) Order to Show Cause re: Preliminary Injunction, entered in the minutes for January 29, 2003 (the “OSC”); (2) Order Granting Preliminary Injunction filed January 29, 2003 (the “Injunction”; Exh. No. 1 in the proceedings below); and (3) Request for Dismissal filed April 7, 2003. We additionally take judicial notice of the Record of Service of the Injunction (the “Record of Service”) served on minor on July 2, 2010, which was Exhibit No. 2 in the proceedings below. (Evid. Code, § 452.)

3 Minor attempted to conceal. The officer followed Minor over the wall and detained him.

O.A. was also detained. Minor was patted down for weapons by Officer Osorio’s fellow

officer, who recovered a souvenir miniature baseball bat.

From prior contacts with members of the Avenues street gang, Officer Osorio was

aware that the Avenues used such souvenir bats as weapons against rival gang members,

because they are easy to conceal. The officer was also familiar with the Injunction

obtained by the City of Los Angeles prohibiting certain gang activities by members of the

Avenues gang within the geographical area where Minor was detained. The Injunction,

file-stamped April 7, 2003, prohibited members of the Avenues gang from driving,

standing, sitting, walking, gathering or appearing anywhere in public view or anyplace

accessible to the public, with any known member of the Avenues. The Injunction had

been personally served on Minor in July 2010.

A juvenile court wardship petition was filed in Los Angeles County on January 20,

2012.3 (Welf. & Inst. Code, § 602.) The petition alleged that Minor had committed acts

which would have been crimes if committed by an adult, specifically, a misdemeanor

violation of a court order, specifically the Order Granting Permanent Injunction in case

No. BC 287137 (Pen. Code, § 166, subd. (a)(4), count 1), and felony possession of a billy

3 An earlier petition was filed October 5, 2011, alleging vandalism (§ 594, subd. (a)), possession of aerosol paint (§ 594.1, subd. (e)(1)), and violation of a court order, specifically, the Injunction (§ 166, subd. (a)(4)). Minor admitted the first two counts, and the third count was dismissed in that matter. That case was transferred to Riverside County but Minor failed to appear for the disposition hearing. A warrant for Minor’s arrest was outstanding in Riverside County at the time of the events alleged in the instant matter. The proceedings related to the earlier petition are not at issue in this case, so we do not discuss it further.

4 or blackjack (Pen. Code, § 22210, count 2). Following a court trial, the petition was

sustained as to both counts and Minor was found to be a person described by Welfare and

Institutions Code section 602. The court declared count 2 to be a misdemeanor.

Subsequently, the case was ordered transferred to Riverside, as the county of Minor’s

legal residence, for a disposition hearing.

On March 2, 2012, the Riverside County Juvenile Court conducted the disposition

hearing. The court adjudged Minor to be a ward of the court and placed his care, custody

and control with the probation officer. Minor was released to the physical custody of his

mother under terms of probation that included an order to stay away from certain areas of

Los Angeles associated with the Avenues street gang.

On March 5, 2012, Minor timely appealed.

DISCUSSION

1. The Constitutionality of the Injunction Is Reviewable on Appeal

Minor argues that the juvenile court erred by refusing to reach his constitutional

arguments challenging the Injunction. He seeks reversal to remand the matter to the

juvenile court for a determination of the issue. The People agree that the court should

have reached the merits of this argument but assert that remand is unnecessary because

the claims may be reached on appeal. We agree that Minor properly raised constitutional

claims challenging the Injunction and that the juvenile court should have addressed them.

(People v. Gonzalez (1996) 12 Cal.4th 804, 808.) However, as a pure issue of law,

remand is unnecessary because the issue may be determined for the first time on appeal.

(See In re Sheena K. (2007) 40 Cal.4th 875, 884.)

5 On the merits, Minor argues that the Injunction’s description of enjoined parties,

and the nonassociation provision, are vague and overbroad. We disagree.

a. Overbreadth

The United States Constitution does not protect a generalized right of social

association; instead, it recognizes only a limited right to associate. (People ex rel. Gallo

v. Acuna (1997) 14 Cal.4th 1090, 1110 (Gallo).) Specifically, the species of associations

that fall under the protection of the First Amendment are those with intrinsic or intimate

value, such as those attending the creation and sustenance of a family (Roberts v. United

States Jaycees (1984) 468 U.S. 609, 619), and those that are instrumental to forms of

religious and political expression, such as are closely aligned with freedom of speech.

(Id. at p. 622.)

Freedom of association, in the sense protected by the First Amendment, “does not

extend to joining with others for the purpose of depriving third parties of their lawful

rights.” (Madsen v. Women’s Health Ctr. (1994) 512 U.S. 753, 776.) Engaging in gang

activities does not fall within the freedom of association protected by the First

Amendment. (Gallo, supra, 14 Cal.4th at pp. 1110-1112.) “The right to associate . . .

‘may be restricted if reasonably necessary to accomplish the essential needs of the state

and public order.’ [Citation.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 627-628.)

“A statute that prohibits constitutionally protected conduct is overbroad and its

enforcement may constitute a denial of due process. [Citation.]” (In re Englebrecht

(1998) 67 Cal.App.4th 486, 497.) In In re Englebrecht, the court dealt with an injunction

against the use or possession of pagers and beepers within a specified geographical area.

6 Because pagers and beepers have countless lawful, legitimate everyday uses, the

injunction prohibited protected communications as well as possibly illicit communication

among gang members, and was found to be overbroad. (Id. at p. 498.)

Injunctive relief may be granted against a criminal street gang. (People ex rel.

Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31, 39, citing Gallo, supra, 14 Cal.4th

at p.1125.) Both the named gang organization and its members may be subject to the

injunction. (Totten, at p. 44.) However, only the violation of an order “lawfully issued”

is punishable as contempt. (People v. Gonzalez, supra, 12 Cal.4th at p. 816.) An order of

contempt cannot stand if the underlying order is invalid. (In re Misener (1985) 38 Cal.3d

543, 558.)

The Avenues street gang’s conduct within the “Safety Zone” of the Injunction fails

to qualify as either of the two protected forms of association, insofar as the Avenues is

not an association of individuals formed for the purpose of engaging in protected speech

or religious activities. (Gallo, supra, 14 Cal.4th at p. 1111.) Nevertheless, an injunction

or statute may be “‘overbroad’” if in its reach it prohibits constitutionally protected

conduct. (Id., at p. 1115, citing Grayned v. City of Rockford (1972) 408 U.S. 104, 114.)

Here, the Injunction prohibits only association by gang members with known gang

members within a specified geographical area. There is no concern that protected speech

or communicated conduct by anyone other than a member of the Avenues street gang

7 might be restricted by the Injunction, so Minor’s claim of overbreadth is not cognizable.4

(Gallo, supra, 14 Cal.4th at p. 1114.)

Minor also contends that the Injunction’s description of enjoined parties must

include the requirement that those subject to the Injunction must be acting in more than a

nominal passive, inactive, or purely technical way. In People ex rel. Totten v. Colonia

Chiques, supra, 156 Cal.App.4th 31, the defendants challenged a gang injunction,

claiming the order did not define “active members.” The court rejected the contention

because the injunction enjoined Colonia Chiques, “‘and its active members, as well as all

persons who participate with or act in concert with the Colonia Chiques in more than a

nominal, passive, inactive or purely technical way, as defined by applicable law.’” (Id. at

pp. 49-50.) However, including language limiting application of the injunction to

“active” gang members is not necessarily required.

An important consideration relevant to determining facial overbreadth is whether a

statute (or, as here, an injunction) has been subject to a narrowing construction by the

courts. (People v. Navarro (2013) 212 Cal.App.4th 1336, 1350-1351.) A statute may be

interpreted narrowly to avoid overbreadth. (In re Andre P. (1991) 226 Cal.App.3d 1164,

1174, citing San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 948.)

4 It is true that “a ‘prohibition against associating with “any other known [gang] member” might apply to a circumstance in which a defendant was engaged in one of the prohibited activities with someone known to the police but not known to [the defendant] to be a gang member.’” (In re Vincent G. (2008) 162 Cal.App.4th 238, 245.) In such a case, the prosecution must establish “a defendant’s [or juvenile’s] own knowledge of his associate’s gang membership to meet its burden of proving conduct in violation of the injunction.” (Gallo, supra, 14 Cal.4th at p. 1117.) That is a separate issue.

8 The gang injunction in the present case does not import the statutory language of

section 186.22, subdivision (a), defining active participation in a criminal street gang.

However, the injunction states that the court’s finding that “Avenues is a criminal street

gang as defined by section 186.22 (Street Terrorism Prevention and Enforcement

(“STEP”) and is a gang as defined for the purpose of a gang abatement injunction in

People v. Englebrecht [(2001)] 88 Cal.App.4th 1236, 1258 [(Englebrecht)].” The

Injunction thus incorporates by reference the statutory definitions and the decisional

interpretations narrowing the definition of persons enjoined. The interpretations of the

statute that have been imported into the Injunction avoid overbreadth.

More importantly, both Minor and O.A. are admitted members of the Avenues

gang, so as to Minor, the injunction is constitutional. “[O]ne to whom application of a

statute is constitutional will not be heard to attack the statute on the ground that impliedly

it might also be taken as applying to other persons or other situations in which its

application might be unconstitutional. [Citations.]” (United States v. Raines (1960) 362

U.S. 17, 21; People v. Rodriguez (1998) 66 Cal.App.4th 157, 167.)

b. Vagueness

The underpinning of a vagueness challenge is the due process concept of “‘fair

warning.’” (In re Sheena K., supra, 40 Cal.4th at p. 890.) A law that is void for

vagueness not only fails to provide adequate notice to those who must observe its

strictures, but also impermissibly delegates basic policy matters to policemen, judges, and

juries for resolution on an ad hoc and subjective basis, with the attendant dangers of

arbitrary and discriminatory application. (People v. Barajas (2011) 198 Cal.App.4th 748,

9 755, citing Grayned v. City of Rockford, supra, 408 U.S. at pp. 108-109; Gallo, supra, 14

Cal.4th at pp. 1115-1116.) When a gang area restriction has lacked an explicit

knowledge requirement, appellate courts have required modifications. (Barajas, at p.

756.)

Minor claims the Injunction’s description of enjoined parties is vague and

overbroad because it is not limited to active gang members or nonmembers whose

participation is “more than nominal, passive, inactive, or purely technical.” The

Injunction prohibits members of the Avenues street gang from the specific activities

within the Safety Zone, namely: “Driving, standing, sitting, walking, gathering or

appearing, anywhere in public view or anyplace accessible to the public, with any known

member of Avenues.” The Injunction is narrowly tailored to give notice of the precise

activities prohibited, the precise area in which those activities are prohibited, and it

requires knowledge of the gang member status of the persons with whom the person is

not to associate. On its face, it is not vague or overbroad.

Minor’s reliance on Englebrecht, supra, 88 Cal.App.4th 1236 is inapposite. In

that case, the defendant was a party to the injunction action and appealed from the San

Diego Superior Court order issuing an injunction against named members of the Posole

gang from certain conduct. The injunction “enjoined the named defendants, the Posole

gang, ‘its members, agents, servants, and employees, and all persons acting under, in

concert with, or from any of them,’” from the activities specified in the judgment. (Id. at

pp. 1242-1243, fn. 2.)

On appeal, the defendant argued that the trial court incorrectly determined he was

10 a member of the Posole gang by using the wrong definition of active gang membership.

(Englebrecht, supra, 88 Cal.App.4th at p. 1257.) In affirming the judgment granting the

permanent injunction, the court rejected the defendant’s argument that the definition of a

gang member required that the defendant devote all or a substantial part of his time and

efforts to the gang in order to meet the definition of a gang member. (Id. at pp. 1260-

1261.) Instead, it concluded the defendant met the statutory definition.

That issue was not presented in this case: Minor had admitted he was a gang

member on more than one occasion to the gang officer. This testimony, which was

admitted without objection to prove Minor’s gang membership, was what proved Minor’s

gang member status, not the language of the Injunction. It is not vague.

2. Substantial Evidence Supports the Court’s Finding that Minor Violated a

Court Order.

Minor argues that the evidence was insufficient to prove that Minor was subject to

the Injunction, and that he violated it. He contends: (1) To prove the violation of the

Injunction, the prosecutor was required to prove that Minor had notice of the Injunction,

that he was a gang member at the time of the violation and thus subject to the Injunction,

and that he did some act in violation of the Injunction within the Safety Zone. (2)

Discrepancies between the prosecutor’s oral description of the Injunction and the title of

the judgment admitted into evidence as raising doubt that the Injunction admitted into

evidence was the same Injunction with which Minor had been served. (3) There was

insufficient evidence to prove Minor was an active gang member at the time of the

violation. (4) There is insufficient evidence to prove he knew that O.A. was a gang

11 member for purposes of proving he violated the nonassociation provision. We disagree.

a. Standard of Review

Because the standard of proof in juvenile proceedings involving criminal acts is

the same as the standard applicable in adult criminal cases, the principles of appellate

review applicable in adult criminal cases are applicable to review of the sufficiency of

evidence admitted in a juvenile proceeding. (In re Roderick P. (1972) 7 Cal.3d 801, 809;

In re Z.A. (2012) 207 Cal.App.4th 1401, 1424.) In reviewing a sufficiency of evidence

claim, our role is limited; we determine whether, on the entire record, a rational trier of

fact could find the defendant guilty beyond a reasonable doubt. (People v. Smith (2005)

37 Cal.4th 733, 738-739; In re Z.A., at pp. 1424-1425.)

On appeal, we must view the evidence in the light most favorable to the People

and must presume in support of the judgment the existence of every fact the trier could

reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053;

People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Reversal is unwarranted unless it appears

that upon no hypothesis whatever is there sufficient substantial evidence to support the

conviction. (People v. Mason (2006) 140 Cal.App.4th 1190, 1199.)

b. The Injunction

Minor was charged with violating a court order under section 166, subdivision

(a)(4). The order is described in count 1 as “ORDER GRANTING PERMANENT

INJUNCTION CASE #BC 287137.” This order, a gang injunction, was filed on April 7,

12 2003, in Los Angeles Superior Court case No. BC 287137.5 At trial, a copy of the

Injunction was admitted into evidence as Exhibit No. 1.

The Injunction described a “Safety Zone” in which the criminal street gang, the

Avenues, was found, by clear and convincing evidence, to create a criminal nuisance.

The Drew Street address where Minor was arrested was within that Safety Zone. The

Injunction included specified prohibitions under item n1, including item 1 (a), which

prohibited the Avenues, “its members, agents, servants, employees, and all person acting

under, in concert with, for the benefit of, at the direction of, or in association with them

or any of them,” from “[d]riving, standing, sitting, walking, gather or appearing,

anywhere in public view or anyplace accessible to the public, with any known member of

Avenues. . . .”

c. Substantial Evidence Supported the True Finding

In order for a defendant to be guilty of violating section 166, subdivision (a)(4),

the prosecution was required to prove: (1) a court had lawfully issued a written order; (2)

the defendant (or Minor) knew about the order and its contents; (3) the defendant had the

ability to follow the court order; and (4) the defendant willfully violated the court order.

(CALCRIM No. 2700; People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4.) Thus,

“[o]ne who, with knowledge of the [lawful] order or injunction, does some act forbidden

by it, and who comes within one of the classes of persons already mentioned who are

5The injunction was also published on the website of the Los Angeles City Attorney’s Office. (http://www.lapdonline.org/gang_injunctions, as of June 18, 2013.)

13 subject to the order or injunction, is guilty of contempt.” (People v. Saffell (1946) 74

Cal.App.2d Supp. 967, 979.)

Regarding the first element, the Avenues injunction of 2003 is a lawful written

order. As discussed in the previous section, it was not overbroad or vague or void for

lack of jurisdiction or authority. Minor’s arguments about discrepancies between the oral

description of the Injunction and the actual court order (which we discuss in greater depth

below) notwithstanding, no evidence was introduced to show that the Injunction was no

longer in effect, or that the issuing court lacked jurisdiction to make the order. We

conclude the Injunction was a lawfully issued a written order.

The second element requires that Minor knew about the order and its contents.

The testimony established Minor was personally served with a copy of the Injunction,

although section 166, subdivision (a)(4), does not require proof of service to establish a

charge of contempt, only knowledge of the order or injunction. (In re Orlando C. (2010)

186 Cal.App. 4th 1184, 1191; People v. Saffell, supra, 74 Cal.App.2d Supp. at p. 979.)

Minor testified in his own defense and did not deny knowledge of the Injunction,

although ignorance of the order would have been a defense to the charge. This element

was met.

The third element requires that Minor have the ability to follow the court order.

Although no direct evidence was offered on this element, no evidence suggests he did not

have the ability to follow the order. Insofar as inability to follow the order would be a

defense to a charge of violating a court order, the absence of any defense evidence on this

point supports an inference that he did have the ability to follow the Injunction. More

14 importantly, because Minor’s legal residence was in Riverside County, a geographical

area outside the Safety Zone covered by the Injunction, he was fully capable of following

the order simply by staying at home. Since Minor does not argue that this element was

wanting, we will not address it further.

The fourth element requires a showing that Minor willfully violated the court

order. Evidence of a defendant’s state of mind is almost inevitably circumstantial, but

circumstantial evidence is sufficient to support a conviction. (People v. Bloom (1989) 48

Cal.3d 1194, 1208.) Someone commits an act willfully when he or she does it willingly

or on purpose. (CALCRIM No. 2700.) The term “willful” means “simply a purpose or

willingness to commit the act. . . .” (§ 7, subd. (1); People v. Lara (1996) 44 Cal.App.4th

102, 107.)

Here, Minor’s legal residence was in Riverside County, but he was in Los Angeles

within the Safety Zone. There is no evidence he was taken involuntarily to Los Angeles,

and his testimony about visiting his girlfriend (his “Baby Momma”) and playing baseball

with two younger cousins supports an inference that Minor was in the Safety Zone

volitionally and intentionally. Further, Minor was observed “hanging out” with O.A.

This was a volitional act, not an accidental or involuntary one, committed with

knowledge of the terms of the injunction.

Minor raises additional points to support his argument that his conduct did not

violate the Injunction. For instance, he argues there is insufficient evidence that he was

an active gang member. This is incorrect. Minor previously admitted being a gang

member on multiple occasions to the gang officer, so there was proof that he was a gang

15 member. As an admission of a party, the statement was not made inadmissible by the

hearsay rule, whether the gang officer qualified as an expert or not. (Evid. Code,

§ 1220.) His admissions established he was a gang member who was enjoined by the

judgment granting the gang injunction.

Next, Minor argues that there are discrepancies between the documentary exhibits

and the oral description thereof by the prosecutor and the gang officer, such that the

Injunction admitted into evidence may or may not be the same Injunction in force on the

date of the alleged violation, or may or may not be the same Injunction that was served

on Minor or that he was subject to the Injunction introduced in evidence. He also argues

there was no evidence that he had knowledge that O.A. was a gang member.

As to the discrepancies relating to the exhibits, we conclude the evidence

adequately proved the existence of the Injunction as well as Minor’s knowledge of its

terms. It is true that the prosecutor orally misdescribed the Injunction as a “preliminary

injunction,” and the gang officer orally misstated the date of the Injunction as being April

20, 2003, instead of April 7, 2003, the date reflected in the file stamp on the challenged

Injunction. However, Exhibit No. 1 was offered by the People to prove the terms of the

court order that Minor was charged with violating, and the gang officer identified Exhibit

No. 1 as the Injunction at issue. Any oral misdescriptions or discrepancies are

immaterial.

The prosecution proffered an Injunction into evidence which bore the same case

number as the order or judgment described in the allegations of the petition. Further,

witnesses identified the exhibit as the gang injunction which was in effect, and with

16 which the minor was served. Irrespective of what it was called, it proved the existence

and terms of the gang injunction.

Minor also points to a discrepancy in the Record of Service, which refers to an

eight-page document served on Minor, differing from the six-page Injunction offered into

evidence, as creating doubt that Exhibit No. 1 is the same Injunction. The Record of

Service is not an official document; it merely memorialized the act of providing Minor

with a copy of the Injunction by Officer Vargas. Officer Vargas testified that he served

the Injunction, which he identified as Exhibit No. 1, on Minor.

As to the discrepancy in the pagination of the permanent injunction, we note that

the nonassociation provision found in the Injunction prohibited activities “with any

known member of Avenues including but not limited to those members identified on

pages 6 and 7 herein . . . .” (Italics added.) It is apparent that the omitted pages, which

also were omitted from the published version of the Injunction found on the Los Angeles

City Attorney’s website, simply listed the names of gang members who were individually

named in the original civil action, filed to obtain the gang injunction. Those names

became irrelevant when the permanent injunction against the gang was granted. While it

would have been preferable for this to have been explained in the trial court, it does not

undermine our confidence that the injunction, which was recorded as a judgment,

published on the Los Angeles City Attorney’s website, and personally served on Minor,

is the same judgment. The fact that the Record of Service reflects that Minor was served

with the original order, including pages 6 and 7, does not defeat this conclusion.

Further, it is irrelevant that the names of the gang members who were named as

17 parties in the original action were deleted from the final judgment. Nonparties to an

injunction action are bound by the injunction if they have knowledge of it. (Berger v.

Superior Court (1917) 175 Cal. 719, 721-722; see also Gallo, supra, 14 Cal.4th at p.

1124.) The Injunction was identified by Officers Osorio and Vargas, and there is

undisputed evidence that Minor was served with a copy of it. The discrepancies asserted

by Minor do not affect the court’s finding that the elements of section 166 were met.

Minor’s final claim is that the prosecution failed to prove that Minor know O.A.

was a gang member. There was no direct evidence Minor was aware that O.A. was a

member of the same gang to which Minor admitted membership. However, O.A. was an

admitted member of the same gang of which Minor was a member, and was in his

company within the Safety Zone at the time of the arrest. As the trier of fact, the court

could deduce and infer that Minor knew of O.A.’s gang status since both were members

of the same gang and were casually hanging out together, while Minor was in possession

of the Avenues’ weapon of choice, the miniature bat. Minor had the opportunity to deny

knowledge of O.A.’s gang membership when he testified in his own defense, but he did

not. Instead, he limited his testimony to matters concerning the charge of possessing a

billy club.

The fact that O.A. fled with Minor at the approach of the gang officer is another

circumstance supporting a reasonable inference that Minor, being familiar with O.A., was

also familiar with his status in the Avenues. (See People v. Prieto (2003) 30 Cal.4th 226,

245 [although record contained no direct evidence that the defendant and a female he

claimed was his spouse were not married, circumstances such as the age of the female

18 (15), the fact she lived at home and had a boyfriend who was not the defendant,

supported the court’s finding].) The juvenile court properly inferred that Minor was

aware of O.A.’s gang status.

3. Officer Osorio’s Opinion that O.A. Was An Active Gang Member Was

Admissible Where It Was Grounded on O.A.’s Declaration Against Penal

Interest.

Minor argues that the juvenile court improperly allowed Officer Osorio to testify

that O.A. was an active gang member, because the officer was not qualified as an expert.

We disagree because: (1) Officer Osorio was qualified as an expert by the trial court and

thus authorized to render an opinion, and (2) the evidence of O.A.’s gang membership

was established by O.A.’s declarations against his own penal interests, and was

admissible even if offered by a lay witness. Where a defendant challenges on appeal the

admissibility of evidence, the appropriate standard of review is abuse of discretion.

(People v. Lindberg (2008) 45 Cal.4th 1, 45; People v. Bradley (2012) 208 Cal.App.4th

64, 84.)

a. Officer Osorio Was Found To Be, And Did Qualify As, An Expert.

During the court trial, Minor’s counsel objected to opinion testimony by Officer

Osorio on the ground the officer did not qualify as an expert. The juvenile court

overruled the objection, and found that Officer Osorio had the specialized knowledge to

testify about the Avenues and their territory. Although the court stated the officer was

not a “formal expert,” he did have “knowledge beyond the norm of an average citizen.”

The court ruled the officer’s opinion “comes in but it goes to what weight we do put on

19 the opinion that Avenues gangs members [sic] can carry these bats as weapons or they do

so.”

Minor’s counsel apparently misunderstood the juvenile court’s finding, because

counsel went on to state that, “Insofar as he is not being treated as an expert, I move to

strike as lacks foundation, improper opinion and hearsay statements that were admitted

into evidence under the guise of him being an expert and those statements forming the

basis of his opinion.” The objection was overruled. The above statement by the court

shows that it did determine the witness to qualify as an expert. We agree with this

determination.

A person is qualified to testify as an expert if the person has “special knowledge,

skill, experience, training, or education sufficient to qualify him as an expert on the

subject to which his testimony relates.” (Evid. Code, § 720, subd. (a); People v. Hill

(2011) 191 Cal.App.4th 1104, 1118 (Hill).) The determination that a witness qualifies as

an expert and the decision to admit expert testimony are within the discretion of the trial

court and will not be disturbed without a showing of manifest abuse. (People v. Mendoza

(2000) 24 Cal.4th 130, 177; Hill, at p. 1118.) Error regarding a witness’s qualifications

as an expert will be found only if the evidence shows that the witness clearly lacks

qualification as an expert. (Hill, at p. 1118, italics omitted, citing People v. Farnum

(2002) 28 Cal.4th 107, 162.)

A gang expert may testify about the culture and habits of criminal street gangs

(People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley)), and may offer an opinion

that a person is a gang member. (People v. Champion (1995) 9 Cal.4th 879, 921-922.)

20 Gang experts may testify concerning the modus operandi of the gang and its members.

(People v. Prince (2007) 40 Cal.4th 1179, 1223, citing People v. Jenkins (1975) 13

Cal.3d 749, 755 [officer testified as expert that tools found in defendant’s car were

commonly used in burglaries].)

Here, Officer Osorio had been assigned to the gang detail for approximately four

years, during which time his primary job was to gather intelligence on gang members,

build a rapport with them, stay current on gang activities, and conduct gang

investigations in the area where the Avenues street gang claimed territory, as well as the

Highland Park, Cypress Park, and Dog Town street gangs. Officer Osorio had the

requisite specialized knowledge and experience to support a finding he was an expert,

capable of rendering an opinion that O.A. was a member of the Avenues street gang

based on O.A.’s admissions. There was no error in admitting his opinion that O.A. was a

gang member.

b. O.A.’S Statements to Officer Osorio Admitting Membership In The

Avenues Criminal Street Gang Constituted Declarations Against

O.A.’s Penal Interests, Which Were Admissible Even if Officer

Osorio Had Not Been Qualified As An Expert.

O.A. was shown to be an active gang member by his prior admissions of gang

membership to the gang officer. (Evid. Code, § 1230.) These statements were

admissible as declarations against O.A.’s penal interests. “In order for a statement to

qualify as a declaration against penal interest the statement must be genuinely and

specifically inculpatory [to] the declarant; this provides the ‘particularized guarantee of

21 trustworthiness’ or ‘indicia of reliability’ that permits its admission in evidence without

the constitutional requirement of cross-examination.” (People v. Greenberger (1997) 58

Cal.App.4th 298, 329.) Where a “statement falls within this hearsay exception [it] also

satisfies the requirements of the confrontation clause. [Citations.]” (Id. at pp. 329-330;

see also People v. Fuentes (1998) 61 Cal.App.4th 956, 965-966.)

The juvenile court ruled that the evidence of O.A.’s admission to the officer was

admissible as foundation for the officer’s opinion. Minor complains that the gang officer

could not base his opinion that O.A. was a gang member on O.A.’s hearsay. However,

the admissions fell under an exception to the hearsay rule. (Evid. Code, § 1230.) A

witness is not required to qualify as an expert to be permitted to testify about a

declaration against the declarant’s penal interests. Thus, the statements were admissible

whether Officer Osorio qualified as an expert or not.

The fact the juvenile court did not discuss the admissibility of O.A.’s admission of

gang membership does not preclude our analysis of the ruling under this theory. It is well

settled that “‘“‘a ruling or decision, itself correct in law, will not be disturbed on appeal

merely because given for a wrong reason.’”’” (In re L.K. (2011) 199 Cal.App.4th 1438,

1448.) “‘“‘If right upon any theory of the law applicable to the case, it must be sustained

regardless of the considerations which may have moved the trial court to its

conclusion.’”’” (Ibid., citing People v. Zapien (1993) 4 Cal.4th 929, 976.)

Under either theory, the ruling by the court was correct.

22 4. Officer Osorio’s Testimony Regarding the Avenues’ Use of Miniature

Bats Did Not Violate Minor’s Confrontation Rights.

Minor argues that the opinion testimony of Officer Osorio violated the

Confrontation Clause because the officer relied on out-of-court testimonial statements of

gang members. We disagree.

Experts may testify as to their opinions on relevant matters and, if questioned, may

relate the information and sources on which they relied in forming those opinions,

including hearsay. (Gardeley, supra, 14 Cal.4th at pp. 618-619; People v. Thomas (2005)

130 Cal.App.4th 1202, 1209-1210 [Fourth Dist., Div. Two] (Thomas); People v. Sisneros

(2009) 174 Cal.App.4th 142, 153.) “Expert testimony is admissible to prove custom and

usage in an industry.” (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th

1102, 1114, citing Ecco-Phoenix Elec. Corp. v. Howard J. White (1969) 1 Cal.3d 266,

271.) The culture and habits of gangs are matters that are “sufficiently beyond common

experience that the opinion of an expert would assist the trier of fact” (Evid. Code, § 801,

subd. (a)), so “‘opinion testimony from a gang expert, subject to the limitations

applicable to expert testimony generally, is proper.’” (Thomas, at p. 1210.)

The rule permitting experts to testify to their opinions and the bases of their

opinions is not undermined by the holding of Crawford v. Washington (2004) 541 U.S.

36. (Thomas, supra, 130 Cal.App.4th at p. 1210; People v. Sisneros, supra, 174

Cal.App.4th at p. 153.) The rationale for this conclusion is that an expert is subject to

cross-examination about his or her opinions, and the materials on which the expert bases

his or her opinions are not elicited for the truth of the matter asserted. (Sisneros, at p.

23 153; see also Thomas, at p. 1210; People v. Dean (2009) 174 Cal.App.4th 186, 193.) The

confrontation clause “does not bar the use of testimonial statements for purposes other

than establishing the truth of the matter asserted.” (Crawford v. Washington, supra, 541

U.S. at p. 59, fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414.)

In Thomas, the gang expert testified to his opinion that the defendant was a gang

member based on his conversations with other gang members, through which “casual,

undocumented conversations with other gang members” that the defendant was a gang

member. (Thomas, supra, 130 Cal.App.4th at p. 1208.) On appeal, the defendant

claimed that his right to confront witnesses was violated by the admission of the gang

expert’s testimony regarding the conversations with other gang members. This court

rejected the notion that the defendant’s right of confrontation was violated because the

conversations with other gang members were mentioned only as a basis for the officer’s

opinion that defendant was a gang member. (Id. at p. 1210.)

Other courts have followed Thomas in holding that hearsay in support of expert

opinion is not the sort of testimonial hearsay, the use of which Crawford condemned.

(See Hill, supra, 191 Cal.App.4th at p. 1137 [expert testimony of ongoing gang rivalry

and defendant’s gang purpose];6 People v. Sisneros, supra, 174 Cal.App.4th at p. 153

[expert’s testimony that shooting was consistent with Mexican Mafia protocol for witness

intimidation obtained through debriefings of gang members]; People v. Ramirez (2007)

6 The court in Hill disagreed with the analysis of Thomas but followed it because our holding in Thomas was based on Gardeley, supra, 14 Cal.4th 605, which the Hill court was required to follow. (Hill, supra, 191 Cal.App.4th at p. 1127, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

24 153 Cal.App.4th 1422, 1426-1427 [hearsay as basis for expert’s opinion on predicate

crimes].)

The expert testimony regarding the custom and practice of Avenues gang

members, who used souvenir miniature bats as weapons against rival gang members, was

the proper subject of expert testimony. In People v. Olguin (1994) 31 Cal.App.4th 1355,

the reviewing court affirmed the admission of gang expert testimony, based on his

interviews with gang members and reviews of police reports, to his opinion that the

Southside gang would retaliate violently if its graffiti had been crossed out. (Id. at pp.

1370-1371.)

Here, Officer Osorio’s testimony described the gang culture of the Avenues street

gang, including their preferred use of the miniature bat as a weapon of choice against

rival gang members. This testimony, going to the culture and habits of the criminal street

gang, was admissible. (Gardeley, supra, 14 Cal.4th at p. 617.) There was no violation of

Minor’s right of confrontation and no error in admitting the testimony.

5. Lacking Any Error, There is No Cumulative Error Requiring Reversal.

Having found no errors, there is no cumulative error.

25

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

I concur:

CODRINGTON

J.

26 King, J., Concurring.

I concur with the majority’s result. I write separately because I disagree with its

generalized discussion of whether Officer Josue Osorio’s recitation of the matters he

relied upon to form his opinion were effectively offered and considered for their truth.

Relying on People v. Gardeley (1996) 14 Cal.4th 605, People v. Thomas (2005)

130 Cal.App.4th 1202 [Fourth Dist., Div. Two], and People v. Sisneros (2009) 174

Cal.App.4th 142, the majority concludes that when an expert on direct examination relays

to the jury the information relied upon by the expert in forming his or her opinion a

defendant’s confrontation rights are not implicated because the information relayed to the

jury is not submitted for the truth of the matter stated therein.

I disagree with this generalized broad-brush approach. I believe it contrary to the

discussion in People v. Hill (2011) 191 Cal.App.4th 1104 (Hill) and the opinions of a

majority of United States and California Supreme Court justices as recently expressed in

Williams v. Illinois (2012) ___ U.S. ___ [132 S.Ct. 2221] (Williams) and People v.

Dungo (2012) 55 Cal.4th 608 (Dungo).

I begin with Hill. At issue was basis testimony of a gang expert. There, the court

pointed out that Gardeley and Thomas were based on the “implied assumption that the

out-of-court statements may help the jury evaluate the expert’s opinion without regard to

the truth of the statements. Otherwise, the conclusion that the statements should remain

free of Crawford[1] review because they are not admitted for their truth is nonsensical.

1 Crawford v. Washington (2004) 541 U.S. 36. But this assumption appears to be incorrect.” (Hill, supra, 191 Cal.App.4th at pp. 1129-

1130, italics added.) This incorrect assumption, the Hill court pointed out, masks

violations of the hearsay rule and the confrontation clause. (Id. at pp. 1130-1132.)

To illustrate the point, Hill discussed People v. Goldstein (2005) 6 N.Y.3d 119

[810 N.Y.S.2d 100, 843 N.E.2d 727] (Goldstein). There, a forensic psychiatrist, in

testifying as an expert for the prosecution, testified on direct examination to out-of-court

statements to support her opinion that the defendant was not insane when he pushed a

woman in front of a subway train. (Hill, supra, 191 Cal.App.4th at p. 1130.) The

statements consisted of hearsay from a security guard and an acquaintance of the

defendant that, prior to the murder, a woman who looked remarkably like the murder

victim had “‘sexually frustrated’” the defendant. (Id. at p. 1130, fn. 15.) Goldstein

concluded that the admission of the out-of-court statements as basis evidence violated the

defendant’s confrontation rights. (Goldstein, supra, at p. 730.) In rejecting the

prosecution’s argument that the statements were not admitted for their truth but only to

assist the jury in evaluating [the expert’s] opinion, the Goldstein court reasoned: “We

find the distinction the People make unconvincing. We do not see how the jury could use

the statements . . . to evaluate [the expert’s] opinion without accepting as a premise either

that the statements were true or that they were false. Since the prosecution’s goal was to

buttress [the expert’s] opinion, the prosecution obviously wanted and expected the jury to

take the statements as true. . . . The distinction between a statement offered for its truth

and a statement offered to shed light on an expert’s opinion is not meaningful in this

2 context.” (Id. at pp. 732-733, italics added.) Hill agreed with Goldstein, noting that

“where basis evidence consists of an out-of-court statement, the jury will often be

required to determine or assume the truth of the statement in order to utilize it to evaluate

the expert’s opinion.” (Hill, supra, at p. 1131, fn. omitted.)2

In Williams and Dungo, five of the nine United States Supreme Court justices and

six of the seven state Supreme Court justices, respectively, agreed that out-of-court

statements, even when offered solely as basis evidence to support an expert opinion, may

effectively be offered for their truth. (Williams, supra, 132 S.Ct. at pp. 2255-2264 (conc.

opn. of Thomas, J.); id. at pp. 2264-2277 (dis. opn. of Kagan, J., joined by Scalia, J.,

Ginsburg, J., and Sotomayor, J.); Dungo, supra, 55 Cal.4th at pp. 621-627 (con. opn. of

Werdegar, J., joined by Cantil-Sakauye, C. J., Baxter, J., and Chin, J.); id. at pp. 633-649

(dis. opn. of Corrigan, J., joined by Liu, J.).)

2 Further, CALCRIM No. 332, the standard jury instruction on expert opinion testimony, instructs the jury it “must decide whether information on which the expert relied was true and accurate,” and it may “disregard any opinion” it finds “unbelievable, unreasonable, or unsupported by the evidence.” (See Pen. Code, § 1127b [sua sponte instructions required on expert testimony].) The instruction reflects the accepted wisdom that “any expert’s opinion is only as good as the truthfulness of the information on which it is based.” (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.)

3 Williams arose from the kidnap, rape, and robbery of a woman in Chicago. Semen

from a vaginal swab taken from the rape victim was sent to Cellmark Diagnostics

Laboratory (Cellmark) for DNA analysis, and Cellmark produced a report containing a

DNA profile of the semen donor. The defendant, Williams, had not been identified as a

suspect in the crimes at the time the Cellmark DNA profile was generated. Williams was

later arrested on unrelated charges, and the state crime lab generated a DNA profile based

on his blood sample. Thereafter, state crime lab analyst Sandra Lambatos conducted a

computer search of DNA profiles in the state police database to determine whether any of

them matched the Cellmark DNA profile of the semen donor in the rape case. Lambatos

found that the Cellmark DNA profile matched Williams’s DNA profile. The victim then

identified the defendant as her attacker in a police lineup. (Williams, supra, 132 S.Ct. at

p. 2229.)

At Williams’s bench trial for aggravated criminal sexual assault, kidnapping, and

robbery, Lambatos answered “yes” when asked whether the two DNA profiles matched,

over the defense counsel’s objection for “lack of foundation.” (Williams, supra, 132

S.Ct. at pp. 2229-2230.) The Cellmark report containing the DNA profile of the semen

donor was not admitted into evidence. (Id. at p. 2230.) Nor did Lambatos quote from or

read from the Cellmark DNA report or identify it as the source of any of her opinions.

(Ibid.) Williams was found guilty and the judgment was upheld on appeal by the state

Court of Appeals and Supreme Court. (Id. at p. 2231.) The question presented to the

high court in Williams was “‘the constitutionality of allowing an expert witness to discuss

4 others’ testimonial statements if the testimonial statements were not themselves admitted

as evidence.’” (Id. at p. 2233.) At issue was whether Lambatos’s testimony that the two

DNA profiles matched violated the defendant’s confrontation rights, and whether the

underlying Cellmark report containing the DNA profile of the donor of the semen found

on the vaginal swabs, was testimonial. (Id. at p. 2227.)

In addressing the issue of whether the basis testimony of expert Lambatos was

offered for the truth of the matters relied on, a four justice plurality, consisting of Justices

Alito, Kennedy, Breyer, and Chief Justice Roberts, indicated that it was not. As

reasoned, the confrontation clause “has no application to out-of-court statements that are

not offered to prove the truth of the matter asserted,” including statements “related” by an

expert witness “solely for the purpose of explaining the assumptions” on which the

expert’s opinion is based. (Williams, supra, 132 S.Ct. at p. 2228.) Such statements “are

not offered for their truth and thus fall outside the scope of the Confrontation Clause.”

(Ibid.) The plurality observed that, “[f]or more than 200 years, the law of evidence has

permitted the sort of testimony” given by Lambatos, and “[m]odern rules of evidence

continue to permit experts to express opinions based on facts about which they lack

personal knowledge . . . .” (Id. at pp. 2228, 2233-2235.) “The truth of Lambatos’

testimony, properly understood, was not dependent on the truth of any predicate facts,”

including whether the Cellmark report was true and accurate. (Id. at p. 2239.) Whether

the Cellmark report was true and accurate, and scientifically reliable, went to the weight

of Lambatos’s opinion that the two DNA profiles matched, not its admissibility. (Id. at

5 pp. 2239-2240.) Furthermore, the foundational fact of the truth of the Cellmark report

and its scientific reliability was shown by circumstantial evidence, including chain of

custody evidence. (Id. at pp. 2238-2239.)

In a concurring opinion, Justice Thomas agreed that the disclosure of Cellmark’s

out-of-court statements through the expert testimony of Lambatos did not violate the

confrontation clause, but only because the statements “lacked the requisite ‘formality and

solemnity’ to be considered ‘“testimonial’” for purposes of the Confrontation Clause.”

(Williams, supra, 132 S.Ct. at pp. 2255, 2259-2260 (conc. opn. of Thomas, J.).) Justice

Thomas disagreed with the plurality’s conclusion that the underlying Cellmark report was

not admitted for its truth. In his view, “there was no plausible reason for the introduction

of Cellmark’s statements other than to establish their truth.” (Id. at p. 2256.) He

remarked that the rules of evidence—that basis evidence to support an expert opinion not

offered for its truth—should not “so easily trump a defendant’s confrontation right.”

(Ibid.) He concluded that “statements introduced to explain the basis of an expert’s

opinion are not introduced for a plausible nonhearsay purpose. There is no meaningful

distinction between disclosing an out-of-court statement so that the factfinder may

evaluate the expert’s opinion and disclosing that statement for its truth.” (Id. at p. 2257.)

Justice Thomas also took issue with the plurality’s claim that there was a long-standing

historical practice of exempting expert basis testimony from “the rigors” of the

confrontation clause. (Ibid.) He warned that “[t]oday’s holding” would “reach beyond

scientific evidence to ordinary out-of-court statements,” including interviews with third

6 parties, upon which experts commonly rely in forming their opinions. (Id. at p. 2259,

citing Goldstein, supra, 843 N.E.2d at pp. 729-730.)

Justice Kagan wrote a dissenting opinion, joined by Justices Scalia, Ginsburg, and

Sotomayor. (Williams, supra, 132 S.Ct. at pp. 2264-2277 (dis. opn. of Kagan, J.).) They

agreed with Justice Thomas that the Cellmark report, conforming the DNA profile

produced from the semen taken from the rape victim’s vaginal swab was effectively

admitted for its truth through the “conduit” testimony of Lambatos. (Id. at pp. 2266-

2267.) They viewed the case as “functionally identical” to Bullcoming v. New Mexico

(2011) 564 U.S. ___ [131 S.Ct. 2705] and Melendez-Diaz v. Massachusetts (2009) 557

U.S. 305, which involved out-of-court scientific reports impermissibly introduced for

their truth through the “‘surrogate’” testimony of experts, in violation of the defendants’

right to confront the analysts who prepared the testimonial reports. (Williams, supra, at

p. 2266.) Like Justice Thomas, the four dissenters agreed the Cellmark report “ha[d] no

purpose separate from its truth.” (Id. at p. 2269.)

The dissenting justices in Williams disagreed with the plurality’s claim that

Lambatos merely “assumed” the Cellmark DNA profile came from the victim’s vaginal

swabs. (Williams, supra, 132 S.Ct. at p. 2270 (dis. opn. of Kagan, J.).) To the contrary,

they pointed out that Lambatos “affirmed, without qualification,” that the report

contained a male DNA profile found in the semen taken from the victim’s vaginal swabs.

(Ibid.) And Lambatos’s description of the report was offered for its truth because “that is

all such ‘basis evidence’ can be offered for; . . . the only way the factfinder could

7 consider whether [the Cellmark report] supported her opinion (that the DNA on [the

victim’s] swabs came from Williams) was by assessing the statement’s truth.” (Id. at p.

2271 (dis. opn. of Kagan, J.).) They criticized the plurality’s “not-for-the-truth rationale”

as an “abdication to state-law labels,” and noted that the high court did “not typically

allow state law to define constitutional requirements.” (Id. at p. 2256 (conc. opn. of

Thomas, J.); id. at p. 2272 (dis. opn. of Kagan, J.).)

In Dungo, forensic pathologist Dr. Robert Lawrence testified that after reviewing

an autopsy report prepared by a nontestifying pathologist, Dr. George Bolduc, and

photographs taken at the autopsy, the alleged murder victim died from asphyxia caused

by strangulation. (Dungo, supra, 55 Cal.4th at pp. 613-614.) In support of his opinion,

Dr. Lawrence described the condition of the victim’s body based on the autopsy report

and photographs, which were not admitted into evidence. (Id. at pp. 614-615.) Dr.

Lawrence did not describe Dr. Bolduc’s opinion of the cause of the victim’s death as

stated in the autopsy report; he only gave his “independent opinion” of the cause of death

as a forensic pathologist. (Ibid.) Nor did Dr. Lawrence say whether his opinion of the

cause of death was based solely on the autopsy report, the autopsy photographs, or a

combination of the two. (Ibid.) The defendant was found guilty of second degree

murder. (Id. at p. 615.)

The majority opinion, authored by Justice Kennard, did not address whether the

basis testimony of Dr. Lawrence was offered for its truth. Justice Werdegar’s concurring

opinion, signed onto by Chief Justice Cantil-Sakauye and Justices Baxter and Chin, while

8 finding the basis evidence relied upon by Dr. Lawrence was not testimonial, indicated

“Dr. Bolduc’s observations were introduced for their truth, and since Dr. Bolduc was not

shown to be unavailable and had not been subject to prior cross-examination on this

matter by defendant, his statements, were they testimonial, would have been inadmissible

under Crawford.” (Dungo, supra, 55 Cal.4th at p. 627 (conc. opn. of Werdegar, J.).)

A dissenting opinion authored by Justice Corrigan and joined by Justice Liu,

concluded that Dr. Lawrence’s basis testimony did violate the defendant’s right to

confrontation. As such, they necessarily concluded that the basis testimony was offered

for its truth. As indicated, “[t]here are of course, many instances in which out-of-court

statements are not offered for their truth. The long-standing rule that unless a statement

is admitted for its truth it is not hearsay remains unchanged. The question is whether a

statement is admitted for its truth. When an expert witness treats as factual the contents

of an out-of-court statement, and relates as true the contents of that statement to the jury,

a majority of the high court in Williams . . . rejects the premise that the out-of-court

statement is not admitted for its truth.” (Dungo, supra, 55 Cal.4th at p. 635, fn. 3 (dis.

opn. of Corrigan, J.).)

This majority consensus on the federal and state Supreme Courts has serious

implications for confrontation clause jurisprudence. It means this court’s 2005 decision

in Thomas and our colleagues’ decision in Sisneros is no longer good law. (See People v.

Valadez (2013) 220 Cal.App.4th 16, 32 [noting Thomas is “likely” to be “significantly

9 undermined” by the United States and California Supreme Courts as currently

constituted].) 3

In fact, in this case, the majority’s discussion that the expert’s basis evidence was

not offered and relied upon for its truth is belied by the record. Defendant was charged

with possession of a billy, a violation of Penal Code section 22210, specifically an 8” to

12” Los Angeles Dodger blue souvenir bat. Clearly, possession of a Dodger souvenir

bat is not a crime. As stated in People v. Fannin (2001) 91 Cal.App.4th 1399: “Intent to

use a weapon is not an element of the crime of weapon possession. . . . However, if the

object is not a weapon per se, but an instrument with ordinary innocent uses, the

prosecution must prove that the object was possessed as a weapon. The only way to

meet that burden is by evidence ‘indicat[ing] that the possessor would use the object for a

dangerous, not harmless, purpose.’ [Citation.]” (Id. at p. 1404.)

Here, the only testimony relating to use of the souvenir bat as a weapon was

provided by Officer Osorio:

“[PROSECUTOR:] Can you describe what the baseball, mini-baseball bat or billy

club looked like?

“[THE WITNESS:] It’s a small wooden bat, blue in color, it’s shorter than arms

length, it was approximately 12 inches, eight to 12 inches long.

“THE COURT: I assume it’s one of those souvenir bats?

3 Gardeley was decided eight years before Crawford v. Washington, supra, 541 U.S. 36. Further, the court was not presented with and did not discuss nor decide whether the expert’s testimony violated the defendant’s right to confrontation.

10 “THE WITNESS: Yes. [¶] . . . [¶]

“[PROSECUTOR:] Can you describe briefly for me any experience you have

with Avenues gang members using billies?

“[DEFENSE COUNSEL]: Objection, relevance.

“[PROSECUTOR]: It’s relevant as to the weapon being used as a weapon rather

than just merely a souvenir.

“THE COURT: Overruled.

“THE WITNESS: Okay. I have had various contacts with other Avenues gang

members, and during those contacts a lot of the times we have casual conversations

where they admitted that they use —

“[DEFENSE COUNSEL]: Objection . . . . [¶] . . . [¶]

“THE COURT: Overruled. It goes to the opinion as to what the purpose of this

devi[c]e was in your client’s hands. [¶] . . . [¶]

“THE WITNESS: Among various occasions they do state they use those small

souvenir bats as weapons because they are easy to conceal and carry in case they got to

use them against other rival gang members.”

While the officer’s testimony that Avenues gang members told him they use small

souvenir bats as weapons was ostensibly offered as basis evidence to support the officer’s

opinion, the prosecutor in fact never asked for his opinion. The only evidence as to the

11 souvenir bat being a weapon was the officer’s hearsay testimony that Avenues gang

members told him they used small souvenir bats as weapons.4

In that the charge of possession of a billy was found true, the trier of fact must

have relied on the above basis evidence for its truth. As such, the majority’s general

characterization and discussion of basis evidence as not being submitted for its truth is

erroneous, at least as it applies to this case.

I recognize that an expert gains expertise over a period of time and from a

multitude of sources. For foundational purposes, the expert must be able to testify to

certain things for purposes of communicating his or her expertise and the general nature

of those things relied upon in forming his or her opinion. However, here the expert went

well beyond this; he communicated inadmissible hearsay pointed directly to a key

element of the crime of which defendant was charged. The statements of other gang

members that souvenir bats were used as weapons were relayed to the trier of fact as

being true and were considered for their truth.

4 While not argued on appeal, Officer Osorio’s basis testimony was inadmissible hearsay. (See People v. Dean (2009) 174 Cal.App.4th 186, 193-203 [Fourth Dist., Div. Two] [“‘[W]hile an expert may rely on inadmissible hearsay in forming his or her opinion [citation], and may state on direct examination the matters on which he or she relied, the expert may not testify as to the details of those matters if they are otherwise inadmissible.’ [Citation.] This rule is based in part upon the rationale that by allowing an expert to testify as to the details of inadmissible hearsay reports, the jury might improperly consider such testimony as independent proof of the facts described in the reports and the adverse party is denied the opportunity to cross-examine the person who made the statements.”].)

12 It also appears that the majority has considered these statements for their truth, as

stated in the majority’s recitation of the facts: “From prior contacts with members of the

Avenues street gang, Officer Osorio was aware that the Avenues used such souvenir bats

as weapons against rival gang members, because they are easy to conceal.” (See maj.

opn. ante, at p. 4.) Here, the majority simply ignores the reality that most basis evidence

is submitted for its truth and is considered for its truth.

As to the issue of whether the statements were testimonial for purposes of the

confrontation clause, Justice Corrigan in her dissent in Dungo, supra, 55 Cal.4th at pages

641 through 643 aptly points out that there is no consensus as to exactly what statements

are testimonial and what statements are not. In considering the various tests as set forth

in Williams and Davis v. Washington (2006) 547 U.S. 813, she believes an “appropriate

inquiry is whether, viewed objectively, a sufficiently formal statement was made for the

primary purpose of establishing or proving past facts for possible use in a criminal trial.”

(Dungo, supra, at p. 644 (dis. opn. of Corrigan, J.).)

Here, the record is relatively bare as to the circumstances surrounding Officer

Osorio’s conversations with purported gang members. The only evidence in the record as

to the formality surrounding the making of the statements is the officer’s testimony that

the statements were made during “casual conversations.” While the gang members may

describe the circumstances differently, we have no evidence relative thereto. As such,

using Justice Corrigan’s least restrictive formulation, that the statement must be a

“sufficiently formal statement,” I cannot come to the conclusion that the statements were

13 testimonial. Further, I can only speculate as to the primary purpose behind the giving of

the statements to Officer Osorio. As such, I cannot find that defendant’s confrontation

rights were violated.

KING

J.

14