Filed 6/22/21 P. v. Steele CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Re spondent,

v.

CLEO STEELE, et al.,

Defendants and Appellants. B302850, consolidated with B304294

(Los Angeles County Super. Ct. No. NA102745)

ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT

THE COURT: It is ordered that the opinion filed on May 24, 2021, be modified as
follows:

1. On p age 27, the second to last sentence beginning with “The trial
court” and ending with “against Johnson” is m odified to read as follows:

The trial court admonished the jury that this testimony regarding Steele was not admissible against Johnson, stating, “for the record, this testimony only goes to Mr. Steele.”

2. On p age 27
, footnote 10, the last sentence beginning with “Johnson”
and ending with “error” is deleted.
3. The paragraph commencing at the bottom of page 33 with “In
addition” and ending at the top of p age 34 with “predicate act].)” is deleted.2

There is no change in the judgment. Appellant Deven Johnson’s petition for rehearing is denied.

________________________________________________________ _______________ ROTHSCHILD , P. J. CHANEY , J. FEDERMAN , J. *

* Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.Filed 5/24/21 P. v. Steele CA2/1 (unmodified)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered publish ed, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

CLEO STEELE, et al.,

Defendant s and Appellant s

. B302850

, c onsolidated with B304294

(Los Angeles County Super. Ct. No. NA102745 )

APPEAL S from a judgme nt of the Superior Court of Los Angeles County, Richard M. Goul , Judge. Affirmed in part, reversed in part, and remanded with directions

. Randall Conner , under appointment by the Court of Appeal, for Defendant and Appellant Cleo Steele

. Aurora Elizabeth Bewicke, under appointment by t he Court of Appeal, for Defendant and Appellant Deven Jamar Johnson.
Xavier Becerra and Rob Bonta , Attorney s G eneral, Matthew Rodriguez, Acting Attorney General, Lance E. Winters , Chief Assistant Attorney General, Susan Sullivan Pithey, Senior2

Assistant A ttorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________ A jury convicted codefendants and appellants Cleo Steele and
Deven Jamar Johnson of home invasion robbery and first degree
bu rglary. The jury further found true allegations that the offenses

were gang

- related and that a principal used a firearm during the
commiss ion of the offenses. The trial court separately found true prior strike and prior serious felony enhancement s as to Steele and
sentenced him to an aggregate term of 45 years to life in state prison

. The court sentenced Johnson to a total term of 19 years in state prison.
Steele and Johnson appeal their convictions on several grounds. Johnson assert s: (1) the trial court violated his state and
federal constitutional rights by allowing the prosecution’s gang expert to repeatedly testify to inadmissible hearsay, and (2) a
remand is necessary to allow the trial court to “ s trike” rather than “stay” sent e ncing on the gang enhancement. Steele asserts: (1) the
record contains insufficient evidence from which to conclude that he was the gunman who personally used the firearm during the robbery , thereby precluding the trial court from imposing sentence s for b oth the firearm and gang enhancement s pursuant to Penal
C ode section 12022.53, subdivision (e)(2)

, 1 and (2) there was insufficient evidence to support the jury’s finding that the offense was committed to benefit a criminal street gang. Both appellants
al so contend that th e y are entitled to two additional days of presentence custody credit, an issue respondent concedes on appeal

.

1 All further statutory references are to the Penal Code unless otherwise specified.3 We conclude that (1) the vast majority of the gang expert’s testimony was permissible under prevailing law and that any testimo ny erroneously admitted was harmless beyond a reasonable
doubt

, and (2) there was sufficient evidence to support the gang
enhancemen t challenged by Steele. We also conclude , however, that the trial court committed several sentencing errors with regard

to each appellant

. As to Johnson, t he trial court erred by imposing and then staying the gang enhancement, when, under applicable statutes, it

must strike the enhancement with the shortest penalty term

. As to Steele, the trial court lacked the authority to impose sentence on
both t he firearm and gang enhancement s in t he absence of any jury finding that Steele personally used a firearm. As to both appellants, the trial court e rred in failing to select and pronounce a
term for count 2 ( and any associated enhancement allegations ) prior to staying sentence under section 654. Lastly , we direct the trial court to grant both appellants two additional days of presentence custody cred its. Accordingly, we affirm the judgment s of conviction but
remand for further sentencing proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution E vidence

1. Home Invasion Burglary and Robbery At about 7:47 p.m. on September 30, 2015, John C. was in the garage of his house in Signal Hill, repairing a light fixture. 2 The garage door was open. John heard someone running in his

2 To protect the privacy of the victims, we will refer to them by their first names and last initial. (Cal. Rules of Court, rule 8.90.)4

driveway, and looked up to see a man pointing a black
semiautomatic handgun at him. The handgun had a blue clip that
extended from the handle. Another man appeared wearing a hoodie
that obscured his features. Both men were African

- American. John briefly noticed the “determined” and “angry” eyes of the person holding th e gun, but his attention was focused on the gun. The gunman told John to drop the items he was holding, which included a flashlight

. John complied. The gunman ordered John to turn around, placed the handgun against the back of his head, and directed him into the house through the entry door in the garage. As they stepped through the doorway, John saw his wife , Laura C.

, and told her they were being robbed. The gunman ordered John and Laura to lie face down on the ground in the dining room , frisked them, and then took their wedding rings and John’s watch. The gunman repeatedly
asked , “ Where ’ s your cash ?” and “ Where ’ s your gold? ” John responded that he had left his wallet in t he bedroom downstairs.
The second man went downstairs. Laura indicated her purse was on the table, and the intruders took $50 from her p urse

. The burglars also took a dress watch that was on the dining table. The gunman became agitated because the victims did not reveal any stores of cash or gold

. The gunman stood on John ’s back and put the handgun to the back of his head. John told the gunman he kept a safe in the downstairs bedroom closet with papers and

tw o guns. The gunman instructed the second man to check the
closet. The home alarm system announced when a door or window was opened, so John could tell that the second man was going through the rooms upstairs and downstairs. John also heard the garage do or open several times and someone running down the5

stairs. Based on the footsteps and alarm system alerts that he heard, John believed a third person might have entered the house. The gunman repeatedly threatened to kill the couple. John
told him that L aura’ s wedding rin g was worth $12,000, and they did not have anything else of significant value. The gunman became less agitated. At one point, John heard the garage door and thought the men had exited the house. He jumped to his feet, but the gunman
th rew him to the ground and demanded duct tape. John said he did not have any duct tape, and the men left soon thereafter.
While Laura called 911, John ran to a stained

- glass window
near the front door. He saw two people struggling to carry a heavy object up the street. John quietly exited the house and, while hiding behind a bush, saw the men get into a “ big boat American

car ” like a Buick, Pontiac, or Oldsmobile. The car passed John’s position as it proceeded toward Cherry Avenue. The car, a lar ge dark

- colored sedan, had a broken headlight. After the robbery, Laura noticed the men had taken two of
John ’ s watches that had been on a counter next to her purse. They
also t ook a bracelet

, a pair of earrings, a nd other jewelry kept in a
box on her be droom dresser.

2. Police Investigation

a. Suspect V ehicle S top At 8:02 p.m. Signal Hill Police Department (SHPD) O fficer Andrew Serna received a dispatch call about a home invasion robbery and a description of the getaway car. About a minute later, while driving south on Cherry Avenue, Officer Serna saw a vehicle
with a broken headlight matching the description of the suspect’s

car traveling away from the location of the victim s ’ home. Officer Serna followed the car into the pa rking lot of a Home Depot store on6

Cherry Avenue. He stopped the car and detained the occupants, waiting for additional officers.
T he a dult occupants of the vehicle were identified as Charro Tovar (the driver), Steele (the front passenger)

, and Johnson ( the

rear passenger seated behind Tovar). T.T

. , Tovar’s six

- year

- old daughter, occupied the rear passenger

- side seat. There was a flashlight in the car and a safe in the trunk. No weapons were found. Officer Serna found a bracelet and a pair of earrings in the front pocket of Johnson’s shorts. After speaking with T.T., police searched the car for a firearm, but found none.
SHPD O fficer Raul Ramirez, walking along Tovar’s route backwards from the Home Depot parking lot, found a black LG cell phone in the Home Depot parking lot, belonging to Steele, and an
off

- white hooded sweatshirt on Cherry Avenue near the entrance to the parking lot. The sweatshirt pocket contained a tangled ball of jewelry and two watches.

b. Field S how U p The police took John and Laura separately to the Home Depot parking lot on Cherry Avenue about 30 minutes after the robbery. Two suspects were shown to John. John “could not be sure” that Steele was one of the robbers, but recognized Johnson immediately as the robber wearing the hoodie. John was able to identify Johnson, in part, by his distinctive high socks, shorts, and
sneakers. John identified the robbers’ car, as well as his custom flashlight found inside the car, his safe, and the safe’s contents. Laura could not pos itively identify either of the two suspects, but thought Johnson could have be en the younger “second” robber, who was receiving orders from the gunman. She believed this based on his “frame, his weight, his general look, clothing

, ” and his “low shoe s” paired with “high socks” that resembled t hose worn by
the second robber

. She identified the jewelry found in Johnson’s7

shorts as hers, as well as the tangled ball of jewelry and two
watches found in the hooded sweatshirt.
John’s wedding ring was found o n the street outside his home,
but his watches were never recovered. Laura’s wedding ring was never recovered

.
3. Cell P

hone Data
A search warrant for GPS location data was used to gather
information from Steele’s cell phone

. On September 30, 2015

, at
7 :55 p.m., Steele’s cell phone was within seven meters of the
victims’ residence in Signal Hill. Steele’s cell phone also was near the victims’ residence on September 23, 24, and 25, 2015.

4. T.T.’s Statements to P olice
SHPD S ergeant Alex Gabaldon spoke with T.T. in the Home Depot parking lot. T.T. told Gabaldon that her “father” (referencing Steele) had left the car with a large blue gun, and that he had returned to the car with “Funky Hair” (referencing Johnson.) She

saw Johnson throw a sweater with jewelry in it out of the window of
the car. S he reported that the gun was under the front passenger

seat.

5

. T.T.’s Trial Testimony
T.T. testified that while she was at a park with her mother and Steele, Steele met with “Crazy Hair” (referencing Johnson), and
others. 3 T.T.’s mother then drove her and Steele (but not Johnson) to a place on a big hill with lights. Neither T.T.’s mother nor Steele
left the car. Steele, however, obtained someone’s flashlight and put

3 T.T. testified that one of the people Steele met at the park was “Bingo

. ” Johnnie Johnson, aka “Bingo

, ” was initially charged as a codefendant in the second amended information . (S ee fn. 5
, post

. )8

it on the floo r of the car. They left the ar e a about 35 to 45 minutes later, this time with Johnson, and accompanied by at least one
other car.
Before the police stopped them, T.T. saw Steele’s gun in the
backseat next to her. She put it under a seat.

6. Gang E

xpert’s Testimony Los Angeles County Sheriff’s Detective Ernesto Castaneda testified as an expert on criminal street gangs. Two months prior to the robbery, Steele admitted to Detective Castaneda that he was a member of a group called the Underground Crips (UGC), which is one of several groups operating under an umbrella association
known as the Rollin’ 100’s. Detective Castaneda observed UGC

tattoos on Steele’s neck and back during this contact. Photographs taken shortly before the trial also depicted Steele with several UGC
related tattoos on his head, chest, and arms

. Detective Castaneda explained that t he Rollin’ 100’s rivals
are the Hoovers. The term “HK” stand s for “Hoover Killer.” Just weeks before the instant offense, Johnson ma de references to HK and the “Hundreds” on his Facebook page, including a statement that he “[s]tarted school at HK University.” Posted photographs showed Johnson wearing clothi ng associated with the UGC gang

. In addition, Johnson’s Facebook profile used the name “Infant Bill.”
M onikers using the name “ B ill ” were popular and were inspired by respected UGC member Billy Shepard, whose moniker was “Lil
Hundred Dollar Bill.” Photographs taken be fore trial revealed several UGC related tattoos on Johnson’s face, neck, and hand. In particular, J ohnson had a dollar sign tattooed under neath his eye, and a moneybag with a dollar sign on his hand, signif ying he was a member of a burglary/robbery crew. Gang tattoos are generally earn ed for “putting in [ the ] work” (i.e.

, committing crimes for the benefit of the9

gang). 4 Moreover, if an individual obtained gang tattoos without being a gang member, there would be violent repercussions against
him. Based on a hypothetical situation, mir roring the prosecution’s

case, Detective Castaneda opined that the home invas ion robbery
was committed for the benefit o f , or in association with, a criminal street gang.

B. Defense Evidence In response to Detective Castaneda’s testimony that over 90 percent of UGC members are unemployed, Johnson’s mother testified that Johnson was employed at a coffee house as a cook and busser around the time of the robbery

. Jo hnson and Steele introduced their own gang experts to contradict De tective Castaneda ’ s conclusions.
Johnson ’ s expert, Kimi Lent, was a gang interventi on specialist. She was famili ar with the UGC

. Lent testified that
African American gangs like UGC are “loosely structured” and their
members do not have an obligation to share the proceeds of their
crimes or to earn their tattoos. Presented with hypotheticals that tracked the evidence, and a ssuming the two suspects were members of the same gang

, Lent w as not able to state with any confidence

t hat the hypothetical robbery was committed “at the direction of, in association with, or for the benefit of ” the gang

. She explained that

4 D etective Castaneda conceded he did not know wh ich tattoos, if any, Johnson had at the time of the offense (which occurred four years prior to trial) . Nonetheless, he explained that even if Johnson did not have any of th e tattoos at the time of the robbery

— and only obtained them after his arrest

— the tattoos were significant because Johnson chose to get UGC tattoos on his face, neck, and hand while facing felony charges that included a gang enhancement.10

even “ gang members can commit crimes that are personal in

nature
, ” and they can do so together. In order to conclude that “this was definitely a gang crime

, ” Lent would have to know whether people in the UGC neighborhood were aware of the crime o r whether there were social posts t o that effect.
Steele ’ s gang expert
, Dr. James Vigil, also contradicted the
notion that tattoos need ed to be earned , stating that gang members get tattoos on their own initiative

. Dr. Vigil further testified that
African American gangs such as UGC do no t share proceeds. Offered a similar hypothetical, Dr. Vigil opined there was
insufficient evidence from which to conclude the incident in the hypothetical was committed with an intent to benefit a gang.

C. Charges and Jury Verdict s In a second amended information, the People charged Steele
and Johnson with h ome invasion robbery (§§ 211, 213; count 1 )

, and first degree burglary (§ 459 ; count 2 )

. The information also charged
Steele wit h child abuse or neglect (§ 273 a , subd. (a); count 3). 5 As to

counts 1 and 2
, the information alleged that the crime was
committed for the benefit of, at the direction of, or in associati on with, a criminal street gang (§ 186.22, subd. (b ) (4) ) , and that a princip a l personally used a firearm (§ § 12022, subd. (a) ( 1)

, 12022.53 , subd s

. (b) & (e)(1) )

. As to Steele, the information alleged he had a prior strike conviction under the Three Strikes law (§§ 667, subd. (d), 1170.12, subd. (b))

, a prior serious felony

5 T he second amended information charged Charro Tovar, the driver of the car

, and mother of T.T., in counts 1, 2, and 3, and also charged codefendant, Johnnie Johnson (aka “Bingo”) in counts 1 and 2. The charges against Tovar and Johnson were not addressed i n the trial involving Steele and Johnson.11

conviction (§ 667, subd. (a)(1))

, and had served a prior prison term (§ 6 67.5, subd. (b)).
Steele and Johnson were tried jointly. T he jury convicted
both as charged in counts 1 and 2
, and found true the gang and firearm allegations. The jury found Steele not guilty o f the child abuse charge in count 3

. The trial court subsequently foun d true the prior prison term

, prior strike

, and prior serious felony
conviction enhancements as to Steele. On November 20, 2019, the trial court sentenced Steele to 45 years to life in state prison , consisting of 15 years to life on count 1
, doubled due t o the strike prior, plus a consecutive sentence of 10

ye ars for the firearm enhancement and five years for the prior serious felony conviction

. The court stayed the sentence on count 2 pursuant to section 654. 6 On the same day, the trial court sentenced Johnson to serve 19 years in state prison. The court selected the upper term of nine

years on count 1 , and added 10 years for the firearm enhancement.
The court indicated it was “ choosing to stay .

. . the gang allegation

, given its imposition of the gun allegation. ” The court further stayed
the sentenc e on count 2 , pursuant to section 654.
Steele and Johnson timely appe aled their res pective judgments

, and we consolidated their appeals.

6 The trial court did not impose a term for the prior prison term enhancement, and it does not appear in Steele’s abstract of judgment. (See Discussion VI, post

. )12 DISCUSSION

I Johnson’s A ssertion of Sanchez / Crawford E rror

Johnson contends the trial court committed reversible error by allowing the prosecution’s gang expert to testify about
inadmissible c ase

- specific, and sometimes testimonial

, hearsay in
violation of People v. Sanchez (2016) 63 Cal.4th 665 ( S anchez ) and
Cr awford v. Washington (200 4 ) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] ( Crawford )

. Respondent counters there was no error

, and in the alternative, any error was harmless under the more
lenient Watson standard. ( People v. Watson (1956) 46 Cal.2d 818, 836.) We conclude the vast majority of the gang expert testimony

was not testimonial, and was properly admitted as general background information

, inde pendently corroborated by the personal o bservations and knowledge of the expert , or subject to a valid hearsay exception

. Any testimony erroneously admitted was harmless under even the more stringent Chapman standard of
review. (See Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705 ] ( Chapman ). )

A. Relevant Legal Principles

1. Standard of R eview
We review the trial court ’ s evidentiary rulings , i ncluding those that turn on the hearsay nature of the evidence , f or abuse of discretion ( People v. Harrison (2005) 35 Cal.4th 208, 230; People v.
Waidla (2000) 22 Cal.4th 690, 725), keeping in mind that an abuse
of discretion occurs when the trial court makes an error of law. ( People v. Patterson (2017) 2 Cal.5th 885, 894; People v. Morrison (2004) 34 Cal.4th 698, 724; see People v. Rowland (1992) 4 Cal.4th 238, 266 [ a trial c ourt ’ s ruling regarding the admissibility of evidence underlying an expert ’s opinion is subject to an abuse of13

discretion standard, but its conclusion regarding an underlying legal principle is subject to independent review].) If error is found, any violation of state evidentiary rules is
reviewed for prejudice under the Watson standard

. ( People v. Fudge (1994) 7 Cal.4th 1075, 1102

- 1103; Sanchez

, supra , 63 Cal.4th at pp.
685 & 698 ; People v. Watson

, supra , 46 Cal.2d at p. 836. ) A
violation of the confrontation clause is reviewed for harmless error
under the Chapman standard

. ( People v. Amezcua and Flo res (2019) 6 Cal.5th 886, 912; Sanch ez , supra, at p. 698 ; see Chapman

, supra , 386 U.S. at p. 24 [“ before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt ” ]

. )

2. Experts, Hearsay, and the Sanchez R ule Hearsay generally is inadmissible, unless it falls under an exception. (Evid. Code, § 1200, subds. (a), (b); Sanchez

, supra , 63 Cal.4th at p. 676.) Although expert witnesses frequently acquire knowledge in their field of expertise from hearsay sources, “[t]he hearsay rule has traditionally not barred an expert ’ s testimony regarding his general knowledge in his field of expertise.” ( Sanchez

, supra , at p. 676.)
In Sanchez , our Supreme Court expl ained that “[w] hen any expert relates to the jury case

- specific out

- of

- court statements, and
treats the content of those statements as true and accurate to support the expert ’ s opinion, the statements are hearsay. ” ( Sanche z, supra , 63 Cal.4th at p. 686.) T he high court defined

“ [ c ] ase

- specific facts” as “those relating to the particular events and participants alleged to have been involved in the case being tried

. ” ( Id. at p. 676 .) It held that an expert ’ s recitation of case

- specific
facts is prohibited if the facts are outside the expert ’ s personal knowledge, do not fall under an exception to the hearsay rule, or have not been independently established by competent evidence.14

( Id . at pp. 676

- 677, 686.) Sanchez preserved an expert ’ s ability to rely on and cite background information “regarding his knowledge and expertise and premises generally accepted in his field” and to “tell the jury in general terms ” “the kind and source of the ‘ matter ’ upon which his opinion rests.” ( Id. at p p . 685

- 686 .) To elucidate the distinction between general background information and case

specific facts

, Sanchez provided the following example in a gang

related context. “ That an associate of the defendant had a diamond
tattooed on his arm would be a case

- specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expe rt could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang. ” ( Sanchez

, supra , 63 Cal.4th at p. 677.)

3. The C

onfrontation Clause and the Crawford Rule
In Crawford , the United States Supreme Cou rt held that the
admission of “ testimonial ” hearsay against a criminal defendant violates the Sixth Amendment right to confront and cross

- examine witnesses. ( Crawford

, supra , 541 U.S. at pp. 53

- 54.) In light of Crawford , the Sanchez court held that an ad ditional step of analysis is required in criminal cases to determine if a n expert ’s statements qualify as “ testimonial hearsay

. ” ( Sanchez

, supra , 63 Cal.4th at

p. 68 6). Canvassing confrontation clause cases, the Sanchez court concluded hearsay statements are testimonial if they are made “primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial

statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.” ( Id . at p. 689 , fn. omitted, citing Michigan v. Bryant (2011) 562 U.S. 344 [131. S. C t. 1143, 17915

L.Ed.2d 93] and Davis v. Washington (2006) 547 U.S. 813 [ 126 S.Ct. 2266, 165 L.Ed.2d 224 ] .)

B. Analysis of Testimony Challenged by Johnson

1

. The G ang E

xpert E xplained H

is B ackground and
T raining in G eneral T

erms In Sanchez , the high court took care to note the defendant was not challenging the expert ’ s “ background testimony about general gang behavior or descriptions of the .

. . gang ’ s conduct and its territory, ” which was “ based on well

- recognized sources in [the expert ’ s] area of expertise. ” ( Sanchez , s upra , 63 Cal.4th at p. 698.)
The high court observed such testimony “ was relevant and
admissible evidence as to the .

. . gang ’ s history and general operations. ” ( I

bi d .) Like the expert in Sanchez

, Detective Castaneda explained his knowledge and training in general terms. He testified his expertise was built on the conversations he had had with detainees while working at the local jail and as a patrol officer handling a large volume of gang

- related cases, including crimes committed by
UGC me mbers. His knowledge of the UGC gang was based on information conveyed by its members directly to him and to other
officers , as well as booking photographs displaying tattoos he kn ew to be associated with the gro up. According to Detective Castaneda, UGC is a gang with approximately 75 to 100 members. From 2008 to 2013, he personally arrested 60 to 70 U GC gang membe rs. From 2013 to 2017, he was promoted to detective gang investigator and assigned
to the South Lo s Angeles Sheriff's Station. His duties included investigating gang

- related crimes, focusing on t he Rollin’ 100 ’ s group of criminal street gangs

, which included UGC , and their rival gangs. He investigated armed robberies, burglaries, and shootings

, among other crimes. From 2013 to 2016, he conducted over 10016

investigations involving U GC gang members. On a weekly basis, he
woul d contact gang members and speak with community members about the gang.
In so testifying , Detective Castaneda la id a general foundation for his testimony

. ( S ee, generally, People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [ an expert ’ s “ eight years dealing with the gang, including investigations and personal conversations with members, and review s of reports suff ices to establish the foundation for his testimony ” regarding the gang ’ s primary activities]; In re Alexander L. (2007) 149 Cal.App.4th 605, 613 [an expert lays a proper foundation by establishing that his or her opinion is based on “ conversations with the defendants and with other [gang] members,

. . . personal investigations of hundreds of crimes committed by gang members, as well as information from .

. . colleagues and various law enforcement agencies ” ].) In large part, his testimony avoided referring “to any particular statement made by any one person to him,” and was not hearsay and thus did not
violate either Sanchez or the confrontation clause. ( People v. Vega

Robles (2017) 9 Cal.App.5th 382 , 413 .)

2

. In D etermining W hether the Specific T

estimony
C hallenged by Johnson is C ase

- s pecific

, O ur F

ocus is on
the N ature of the I

nformation Disclosed , N ot Its S ource Johnson notes that foundational objections raised by trial counsel during Detective Castaneda ’ s testimony , and a line of questioning pursued during cross

- examination by defense counsel

, prompted the detective to provide more specific examples of his
source material. Based on the specificity of the d etective ’ s answers , Johnson argues the testi mony constituted case

- specific hearsay

. I n a post

- Sanchez case, our high court clarified the approach to evaluating whether testimony is case

- specific. “ The focus of the inquiry is on the information conveyed by the expert ’ s testimony,17

not how the expert came to learn of such information. Thus, regardless of whether an expert testified to certain facts based on composite knowledge ‘ acquired from sources too numerous to distinguish and quantify ’ or if the expert simply look ed up the facts in a specific reference as part of his or her duties in a particular case, the facts remain the same. The background or case

- specific character of the information does not change because of the source from which an expert acquired his or her knowledge. ” ( People v.
Veamatahau (2020) 9 Cal.5th 16, 30 ( Veamatahau ). ) Accordingly, in assessing whether the specific lines of expert testimony challenged by Johnson constitute “ background
information ” or “ case

- specific facts ,” we maintain our focu s on the
nature of the information conveyed to the jury, as opposed to the
source of the information

.
3

. Detective Castaneda ’ s T estimony R egarding the UGC ’ s C ulture, R ules

, and E

xpectations C

onstituted G eneral
B ackground I

nformation, N

ot C ase

- s pecific F acts Johnson complains that Detective Castaneda improperly
testified about : (1) the expectation that crime proceeds would be distributed among gang members ; (2) the likelihood of retribution for failing to distribute such proceeds ; (3) the likeli hood any
retaliation would be violent ; (4) the likelihood UGC would engage in such retaliatory conduct ; (5) the requirement that tattoos be “earned” ; (6) t he likelihood an individual would engage in bragging while in custody ; (7) the benefits a gang receiv es from bragging ; and (8) that UGC members typically are unemployed.

“ Since Sanchez, California appellate courts have held that expert testimony a bout ‘ the general attributes of the .

. . gang, such as the gang ’ s culture, the importance placed on reputation and

guns,

. . . the gang ’ s rivals and claimed turf, the use of monikers and identifying symbols, and the like, [are] permissible as expert18

backgroun d testimony. ’ [Citations.] ” ( People v. Anthony (2019) 32 Cal.App.5th 1102 , 1138 ; see also People v. Meraz (2018) 30 Cal.App .5th 768, 780.) Consistent with these cases, t he information conveyed by Detective Castaneda in each of the categories identified by Johnson concerns the general behavior and habits of the UGC

gang . It qualifies as the type of background information t hat is permissible under Sanchez

, and may form the bas is of the expert’s opinion , even if it is derived from hearsay

. ( Sanchez

, supra , 63 Cal.4th at p p

. 685

- 686, 698 .) Moreover, as the testimony conc erned the general behaviors of the UGC gang, without divulging any out

of

- court statements, it did not amount to testimonial hearsay in
violation of Crawford. ( People v. Thompkins (2020) 50 Cal.App.5th 365, 404 ( Thompkins ) .) Johnson suggests that by overruling some of his “foundational” objections to the above lines of testimony, the trial

court “ hindered [ his ] ability to prevent the prosecution’s introduction of inadmissible evidence.” However, as explained in
Veamatahau , if testimony is properly characterized as “background information” it so remains regardless of the underlying source. ( Veamatahau

, supra , 9 Cal.5th at p. 26.) U nder Sanchez , “[a]ny expert may still rely on hearsay in forming an opinion, and may tell the ju ry in general terms that he did so.” ( Sanchez

, supra , 63 Cal.4th at p. 685.) This is what Detective Castaneda did in this

case. 7

7 T he Sanchez court expressly recognized that allo wing an expert who relies on hearsay to simply “tell the jury in general
terms that he did so

. . . may do less to bolster the weight of the opinion” but pointed out that to the extent that “ Crawford and its
progeny .

. . complicate some heretofore accepted evidentiary rules, they do so under the compulsion of a constitutional mandate as19 4

. Detective Castaneda’s T estimony R egarding the
P redicate A cts of T

wo G ang M

embers

a. D efinition of “ C riminal S treet G ang” W ithin the
M eaning of S ection 186.22 The jury found that both Steele and Johnson committed felonies “ for the benefit of, at the direction of, or in association with any criminal street gang

, ” pursuant to section 186.22, subdivision (b)

. The definition of “criminal street gang” is supplied by section
186.22 , subdivision (f).

“ ‘ To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group ’ s primary
activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group ’ s members must engage in, or have engaged in, a pattern of c riminal gang activity

. [Citations.]’ [Citation.] ” ( People v. Lara (20 17) 9 Cal.App.5th 296, 326

- 327 .) “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily
enumerated crimes is one of the group ’ s ‘chief’ or ‘principal’ occupations.” ( People v. Sengpadychith (2001) 26 Cal.4th 316, 323 .)
Courts have held that expert testimony about a gang ’ s “primary activities” is considered admissible background information under
Sanchez

. ( Thompkins

, supra , 50 Cal.App.5th at p. 409; People v.
V ega

- Robles

, supra , 9 Cal.App.5th at p. 411

. )
A “ pattern of criminal gang activity ” means the commission of

“ ‘ two or more ’ ” of the statutorily enumerated offenses. ( People v.
Tran (2011) 51 Cal.4th 1040, 104 4 ; see § 186.22, subd. (e)(1)

- (33)

. )

established by binding Supreme Court precedent.” ( Sanchez

, supra , 63 Cal.4th at p. 686.)20

These offenses generally have been termed “predicate offenses” (although the phrase does not appear in the statute), two or more of which must have been committed by gang members within a statutorily

- defined timeframe to establish the gang as a “criminal street gang.” ( § 186.22
, subd. (e).) The predicate offenses need not
themselves be “ ‘ gang related

, ’ ” i.e., it is not necessary to prove they were committed for the benefit of, at the direction of, or in association with a gang . ( People v. Gardeley (1996) 14 Cal.4th 605, 610, 621, d isapproved on other grounds in Sanchez

, supra , 63 Cal.4th at p. 686, fn. 13.) P roof of an actual conviction is

unnecessary

. ( People v. Garcia (2014) 224 Cal.App.4th 519, 524

. ) The charged offense at trial may serve as a predicate offense to qualify the gang as a criminal street gang. ( People v. Tran

, supra , at p. 1046; People v. Gardeley

, supra , at p. 625

. ) To prove that a particular gang meets the requirements of
section 186.22 , subdivision (f) , t he prosecution usually presents a gang expert to describe the name or “ ‘ identifying sign[s] or symbol[s] ’ ” of the promoted gang ; the gang’s “ ‘ primary activities ’ ” ; and at least two offenses committed by the defendant or his fellow gang members to show the gang had engaged in a “ ‘ pattern of criminal gang activity

. ’ ” ( People v. Prunty (2015) 62 Cal.4th 59, 75

- 85.) That was the approach the prosecution took in this case, through Detective Castaneda. Thus, Det ective Castaneda testified that UGC ha d 75 to 100 active members, at least three of whom have admitted their gan g membership to him ; that their common sign or symbol is primarily “UG” or “UGC” ; and that they commonly wear apparel by the Indianapolis Colts football team
, which includes the colo r blue with

a horseshoe in the form of a “U

. ” He also demonstrated the UGC

common hand sign for the jury. The detective further testified that the primary activities of the U GC gang include robberies,21

burglaries, felony vandalism, assaults committed with and without
firearms , and attempted murders. On appeal, Johnson acknowledges that an expert’s testimony about the general functioning of gangs has, post

- Sanchez

, been recognized as the kind of background information to which an officer may testif

y, citing Thompkins

, supra , 50 Cal.App.5th at

pp

. 403

- 404. J ohnson, however, challenge s Detective Castaneda’s testimony r egarding the two predicate offenses used to establish the gang’s pattern of criminal activity. He argues the testimo ny consisted of case

- specific facts and testimonial hearsay, in violation
of the confrontation clause. For the r easons explained below, we discern no reversable error.

b

. Testimony R egarding P redicate O ffenses
(i) Predicate offense involving Marcus Toomes At trial, the prosecution intro duced a “ certified docket ” for

case No. YA086534. In that case, Marcus Toomes was convicted of committing a robbery on November 1, 2012. The charges did not
inv olve gang allegations

. During the investigation of the robbery,
Detective Castaneda served a search warrant at Toomes ’s
residence. Detective Castaneda also had three to four contacts with Toomes while working at the Lennox Station patrol.
When the prosecutor asked Detective Ca staneda if Toomes

was a UGC gang member, Johnson asserted an object ion for lack of
foundation

. The trial court sustained the objection. Detective
Castaneda then testified that during three or four prior patrol contacts with Toomes, To o mes admitt ed his ga ng membership and

gang moniker. Detective Castaneda also observed that Toomes had

“ 100 ’ s ” tattooed on his chest, which is a tattoo commonly used by
U GC members

. Detective Castaneda also investigated another crime committed by Toomes, with U GC gang m ember Erik Ward. Johnson objected on hearsay grounds to the admission by Toomes,22

and objected on foundation grounds to the testimony that Ward was
a U GC member. The o bjections were overruled. Detective Castaneda opined that Toomes was a U GC gang member on September 30, 2015 , the date of the home invasion robbery alleged against Steele and Johnson

.

( ii ) Predicate offense involving Eugene Flowers The prosecution introd uced a certified docket in case
No. YA093134. In that case, Eugene Flowers was convicted of prohibited posses s i o n of a firearm on August 6, 2015 , in violation of
section 29800 , subdivision (a)(1)

. Detective Castaneda responded to
the scene of the inciden t

. This second predicate offense did not involve a gang allegation. Detective Castaneda had over 20 prior
contacts with Flowers

. Flowers admitted he was a UGC member, displayed his “ UG ” tattoos
, and told Castaneda his gang moniker. Citing Sanchez , Johnson objected that Flowers ’s statements were hearsay. The objection was overruled. Detective Castaneda opined
that Flowers was a U GC gang member on September 30, 2015.
Johnson ’s object ion on foundation grounds was overruled.

c. A S plit of A u thority H as D eveloped R egarding
T estimony of P redicate O ffenses I nvolving G ang M embers O ther T han the D efendants on T rial In prov i ng a gang enhancement allegation under section 186.22, a split of authority has developed regarding the admission
of evidence of the predicate offenses committed by gang members

. In People v. Ochoa (2017) 7 Cal.App.5th 575 ( Ochoa ), the expert testified that nondefendants involved in the predicate offenses had admitted their gang membership. ( Id. at p p. 582, 588

- 589.) The First District Court of Appeal found that it “seem[ed]
clear” the expert ’ s testimony regarding the admissions of gang membership was case

- specific, but any error in its admission was harmless

. ( Id. at pp. 588

- 589 ; see also People v. Vega

- Robles

, supra ,23

9 Cal.App.5th at p. 41 5 [ citing Ochoa and noting that “[u] nder
Sanchez , it appears that testimony about a nonparty ’ s out

- of

- court admission that he or she is a gang member, offered to prove he or
she is a gang member, is hearsa y,” but finding any error harmless ] .)
The Third District Court of Appeal has expressed disagreement with Ochoa , holding that testimony about participants other than the defendant being tried is “historical background information ” a bout the “ gang ’ s conduct and activities ”
and that “ a predicate offense is essentially a chapter in the gang ’ s biography. ” ( People v. Bermudez (2020) 45 Cal.App.5th 358, 363,
376

- 377 & fn. 13

. ) Our colleagues in D ivision Eight of this court
also reached a contrary conclusion to that announced in Ochoa

. (See People v. Meraz

, supra , 30 Cal.App.5th at pp. 781 [ holding that testimony about a gang ’ s “ pattern of criminal activities ” constituted

“ general background testimony ” because it was “ unrelated to [the] defendants or the current shooting and mirrored the background testimony the expert gave in Sanchez ” ].) 8 Here, the predicate offenses , n one of which involved Johnson
or Steele

, were unrelated to the events on trial

. Nonetheless, a port ion of the detective’s testimony referenced admissions by Toomes and Flowers, calling into question the proper
characterization of the admissions as case

- specific hearsay or

8 I n 2020, the California Supreme Court ordered briefing in Peop le v. Garcia (July 10, 2018, F073515) 208 Cal.App.Unpub. LEXIS 4681 (nonpub. opn.), review granted Oct ober 17, 2018, S250670, to consider whether “gang expert testimony regarding uncharged predicate offenses to establish a ‘pattern of criminal gang activit y’ under

. . . section 186.22, subdivision (e) constitute[s] background information or case

- specific evidence within the meaning of [ Sanchez ]

, ” and whether “any error [was] prejudicial

. ” ( People v. Garcia (2020, S250670) 2020 Cal.LEXIS 4641

. )24

background information. We need not resolve this issue, however,
b ecause other admissible evidence satisfied the requirement to prove two qualifying predicate acts

.

d

. T estimony R egarding the P redicate O ffenses was
S ubject to a V alid H earsay E xception and/or
In dependently C orroborated As explained above , an expert’s recitation of cas e

- specific facts
does not run afoul of Sanchez if the facts are within the expert’s personal knowledge, fall under an exception to the hearsay rule, or have been independently established by competent evidence. ( Sanchez

, supra , 63 Cal.4th at pp. 676

- 677, 686 ; Thompkins

, supra , 50 Cal.App.5th at p. 40 6; see Discussion I, section A

. 2

. , ante .) Much
of the predicate offense evidence satisfies these exceptions. First, to prove the commission of two statutorily enumerated offenses, the convictions of Toomes and Flowers were established through certified court records . These were admissible under state hearsay rules to prove the offenses occurred. ( Thompkins

, supra , 50 Cal.App.5th at p. 412; People v. Duran (2002) 97 Cal.App.4th 1448,
1460 , citing Evid. Code, § 452.5 [ “ [ Evid

. Code

, § 452.5, subd

. (b) ] creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, b ut also that the
offense reflected in the record occurred ” ].) In addition, certified
records such as these “ are not testimonial in nature because they

are ‘ prepared to provide a chronicle of some act or event relating to the public employee ’ s duty ’ and ar e not ‘ produced to be used in a potential criminal trial or to determine whether criminal charges
should issue. ’ ” ( Thompkins

, supra , at p. 412, quoting People v.
Taulton (2005) 129 Cal.App.4th 1218, 1225.)
Johnson contends that People v. Garcia (2020) 46 Cal.App.5th 123, dictates a different result. We disagree. In Garcia

, the court
held that under Kirby v. United States (1899) 174 U.S. 47 [19 S.Ct.25

574, 43 L.Ed. 890] , a confrontation clause violation occurs if the prosecution seeks to prove more than the mere commission of a prior offense with conviction records. ( People v. Garcia

, supra , at

p. 171.) The court concluded the use of conviction records to prove the date of the offense and thereby satisfy the statutorily

- defined
timeframe required b y section 186.22

, subdivision (e)

, “plainly
violates Kirby ’s proscription of the use of the record s of prior convictions to prove any fact other than the fact of the prior
conviction.” ( People v. Garcia

, supra , at p. 17 2 .)
T he Garcia court found a confrontation clause violation with regard to one of the predicate offenses because t he t estifying officer
had no involvement in the first offense and therefore must have relied upon testimonial hearsay in stating the date of the offense. ( P eople v. Garcia

, supra , 46 Cal.App.5th at p . 172.) With regard to the second predicate offense, however, t he testifying officer personally participated in the arrest that led to the conviction

. Based on the officer’s personal knowledge of the relevant da te
, no confrontation clause violation occurred . ( Id. at p. 173.) In the present case , Detective Castaneda was personally involved in both predicate offenses, having served a search warrant in the Toomes case and having responded to the scene of the
incide nt in the Flowers case. Therefore, the admission of his

t estimony about the date of the offense was consistent with Garcia

. The prosecution also was required to prove the predicate offenses were committed by gang members. Though neither of the predicate offenses included a gang enhancement finding, Detective Castaneda was personally involved in the investigation of both offenses, and testified that Toomes and Flowers were UGC gang
members. Castaneda ’ s knowledge was based in part on his personal observat ion of their gang

- related tattoos , and based on
additional contacts with each of the men. Testimony by an officer26

about personal observations of an individual ’ s tattoos, location, companions, or clothing, is not hearsay and thus do es not run afoul
of Sanchez or the confrontation clause. ( People v. Iraheta (2017) 14 Cal.App.5th 1228 , 1248 .)
In sum, Detective Castaneda’s testimony regarding the predicate offenses committed by Toomes and Flowers was independently corroborated by admiss ible evidence (the certified court records) and the detective’ s personal knowledge regarding the dates of the offenses and their gang membership . Therefore

, the admission of this testimony was not error under Sanchez , and was
not testimonial under Crawfor d . ( See Sanch ez , supra , 63 Cal.4th at p. 686 .) To the extent the detective also testified that Toomes and Flowers admitted their gang membership to him, in view of the properly admitted evidence of their gang membership, any error in admitting their hear say statements was harmless beyond a
reasonable doubt. ( See People v. Meraz

, supra , 30 Cal.App.5th at

p. 783 [ finding any error in admitting expert testimony based on information supplied by other officers was harmless where the
evidence was duplicative of other proof of gang membership ] ; People

v. Vega

- Robles

, supra , 9 Cal.App.5th at pp. 414 & 416 [same] .) 9

5. Evidence R egarding Steele’s G ang M embership W

as P roperly A dmitted
Detective Castaneda testified that Steele told him he was a
U GC ga ng member and his moniker was “ Tiny Fly. ” Later, Detective Castaneda opined that Johnson was a U GC gang member based, in part, on his association with St eele.

9 To the extent Johnson objects to additional testimony regarding the predicate offenses that m ight have qualified as case

specific, or testimonial, hearsay, its admission was harmless, as discussed below. (See Discussion I, section B

. 6

. , post .)27 Johnson argues t he trial court erred by admitting, over his objectio n, Detective Castaneda ’ s testim ony that Steele admitted he
was a U GC gang member with the moniker Tiny Fly.

a

. Steele ’ s O ut

- of

- c ourt A dmission to Prove His Gang Membership Did Not Violate Sanchez or Crawford
Steele ’ s own statements were admissible against him as a

par ty admission and, as such, could not violate the confrontation clause as to him. (Evid. Code

, § 1220 [out

- of

- court admissions by an opposing party are admitted for their truth] ; People v. Jennings (2010) 50 Cal.4th 616, 662 [a defendant ’ s own admissions do not implica te the confrontation clause “ ‘because the defendant only has the right to confront the “ witnesses against him ” ’ ” ].) Moreover,
Steele ’ s statement that he was a U GC g ang member and h is moniker was Tiny Fly did not implicate Johnson

. ( See Bruton v.
United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476]

. ) 10 T he trial court admonished the jury that this testimony regarding Steele was not admissible against Johnson. The jury also
was instructed that it “ must separately consider the evidence as it applies to each defendant ” and “ decide each charge for each defendant separately. ”

10 U nder Bruton and its progeny, the admission at a joint trial of a nontestifying defendant’s confession implicating a codefendant violates the confrontation clause if the confession is

“ ‘ facially incriminating ’ ” of the nondeclarant defendant. ( People v. Fletcher (1996) 13 Cal.4th 451, 455.) Johnson does not assert a claim of Bruto n error.28 b. Additional Evidence Was Properly Admitted to Support the Expert’s Opinion of Johnson’s Gang
Memb ership
I n opining that Johnson was a gang member, Detective Castaneda acknowledged that his opinion was based, in part, on
Johnson ’ s association with Steele. Johnson argues th at Steele’s
admission constitu t ed case

- specific hearsay to the extent the
admission informed the detective’s opinion of Johnson’s gang membership.
If the sole basis for Detective Castaneda’s opinion regard ing Steele’s gang membership had been Steele’s admission, his reliance
on that admission t o conclude that Johnson was a gang member and the charged offense was gang related could constitute case

specific hearsay as to Johnson

. ( See Sanchez

, supra , 63 Cal.4th at pp. 676

- 677, 686 [testimony is case

- specific if it involves

“ participants alleged to have been in volved in the case being tried”].) However, Detective Castaneda ’ s opinion as to Steele ’s membership in UGC also w as based on his personal observations
and knowledge.
In addition to referenc ing Steele ’ s self

- admission during a patrol contact on July 28, 2015, Detective Castaneda testified that Steele showed him his UGC tattoos, including a “ U ” on his neck,
and “ UGC ” on his back. The d etective based his opi ni o n that Steele was a current gang member on his “ contact with Mr. Steele, the
tattoos that [he] observed, as well as other tattoos that [he]

p hotographed on prior occasions. ” 11 Detective Castaneda reviewed

11 W hen the prosecutor followed up by asking Detective Castaneda whether Steele’s admission in July 2015 played into the detective’s “opinion at all ” (italics added), Detective Castaneda asked the prosecutor to clarify whether he was referring to “ [ t ] he entire contact itself or just the self

- admittal to me?” After the29

a series of photographs he r ecently had taken of Steele and testified that the photo graph s were relevant to his opinion that Steele was currently a UGC member, pointing out that Steele had clear UGC

tattoo s “ on his face and nec k, visible to the public eye. ” As such,
Detective Castaneda ’ s opinion regarding Steele ’ s membership was based in part on his past and present observations of Steele’s gang

related tattoos. These first hand observations do not implicate
Sanchez or Crawfor d because such observations do not constitute hearsay. (See People v. Vega

- Robles

, supra , 9 Cal.App.5th at p. 413 [“ [a] s we read Sanchez , it is not error for a gang expert to testify
about case

- specific facts about which he has personal knowledge,”
nor d oes it “ offend the confrontation clause ,” and noting the detective had such personal knowledge where he had, inter alia

, personally met gang members, viewed their tattoos, and viewed letters signed under the gang name]; see also People v. Mendez (2019) 7 Cal.5th 680, 693 [ finding no error under Sanchez where the
defendant expressly “ chose to let [ the gang expert] testify to hearsay accounts of his prior police contacts ,” but also o bserving
that the prosecutor potentially could have establis hed the same
facts “ based on what the on

- scene officers themselves observed ” ].)
Furthermore , Detective Castaneda’s opinion regarding
Johnson’s gang membership also was based on his independent
observations of Johnson

. The d etective viewed recent photogr aphs
of Johnson showing several UGC related tattoos, including the

prosecutor responded, “ J ust the self

- admittal,” Detective Castaneda responded, “ Y es.” In his opening brief, Johnson extracts the “just the self

admittal” excerpt to assert that Detec tive Castaneda’s belief that Steele was a gang member was based only on “ ‘ the self

- admittal, ’
not the tattoos.” Johnson’s assertion , however, is contrary to Detective Castaneda’s testimony.30

symbols that signified he was a member of a burglary/robbery crew.
Detective Castaneda also personally reviewed Johnson’s Facebook profile and posts, and found photographs i n which Johnson was wearing attire associated with the UGC gang

. Johnson’s posts included statements such as “started school at HK University

. ” The detective recognized the “HK” as an acronym for “Hoover Killers,” referencing a rival of UGC. The photogr aphs of Johnson in UGC related attire, as well as the “ HK University” statement were posted only weeks before the instant home invasion robbery. Here again, the detective’s personal observation of Johnson’s tattoos does

not constitute hearsay

, and his rel iance on Johnson’s Facebook posts was permissible because they constituted party admission s

. As such, we discern no Sanchez or Crawford error . (See People v. Vega

- Robles

, supra , 9 Cal.App.5th at p. 413 .)

6

. The A dmission of A dditional T estimony T

hat M ight Q ualify as C

ase

- s pecific and /or T

estimonial H

earsay W as H armless B eyond a R easonable D oubt Johnson challenges additional testimony elicited from
Detective Castaneda during direct examination and cross

examination

, which Johnson alleges is case

- specific, testimonial hearsay. 12 Specifically, Johnson challenges the following testimony

.

12 I n Veamatahau , our high court left open the question of whether hearsay elicited by a defendant on cross

- examination that runs afoul of Sanchez should be deemed “invited

. . . error.” ( See Veamatahau

, supra , 9 Cal.5th at p. 27, fn. 2.) We need not resolve this questi on.31 a. Additional Testimony C hallenged by Johnson
( i ) UGC M

embers Billy Shepherd, Marcus Broadmax, and Johnn ie Johnson In testifying about his prior contact with Steele in July of 2015, Detective Castaneda noted Steele was in the company of
three other U GC member s. A fter Johnson ’ s objection for lack of
foundation , the detective testified that he knew the other three men from prior contacts. The three men were Billy Shepherd ( “ Hundred
Dollar Bill ” ), Marcus Broadmax ( “ Lil Midnight ” )

, and Johnn ie Johnson ( “ Bingo ” )

. Detective Castaneda testified all three had, at various times, admitted their gang membership to him. The court
overruled Johnson ’ s subsequent objection on grounds of hearsay
and Sanchez

. ( ii ) UGC M ember Erik Ward In testifying about the predicate offense committed by UGC
member Toomes , Detective Castaneda testified he had investigated another crime committed by Toomes with U GC member Ward. The court overruled Johnson’s foundation and hearsay objections regarding Castaneda’s knowledge that Ward wa s a UGC member

.

( iii ) UGC M

ember Marque s Coleman In testifying about Johnson’s Facebook account, Detective
Castaneda noted that in his profile picture, Johnson was with Marques Coleman, a UGC member

. The detective’s knowledge regarding Coleman’s gang membership was based on several patrol

con tacts and Coleman’s admission that he was a UGC member

. The court overruled Johnson’s objection on grounds of hearsay and
Sanchez

. During cross examination, Johnson’s counsel elicited from
Detective Castaneda that Coleman admitted his UGC membership32

sometime in 2014 or 2015 while the detective was investigating
Coleman for another crime.

( iv ) UGC M

ember Darwin Nixon During direct examination, Detective Castaneda testi fied that there was an expectation that UGC members share and disburse
funds obtained from crimes amongst the gang for their continuing operations, and that a gang member who refused to share such proceeds would suffer negative repercussions. Detective Ca staneda stated his opinion was based on “[ t ] alking to hundreds of gang members about different scenarios in which they live day to day,
which includes what were to happen if you commit a crime and keep the money to yourself.” During cross

- examination, Johnson’s counsel asked Detective Castaneda where he learned that there was an expectation that crime proceeds would be shared amongst the gang

. Detective Castaneda responded that he learned this information from

“ [ v ] arious inter views that I conducted of individuals from different gangs, including the Underground Crips

, ” and from reviewing reports of other robberies where proceeds were stored in stash houses for the gang. Johnson’s counsel then asked Detective
Castaneda if he kne w of any specific instance in which a gang member suffered repercussions for failing to share proceeds from a
crime . Detective Castaneda stated he did not, but had been told of such repercussions after talking with gang members. Johnson’s
counsel asked t he detective “ [ w ] hich gang members” to ld him about such repercussions . T he detective responded that a UGC gang member named Darwin Nixon had explained such consequences while Nixon was in custody for an incident the detective was investigating at the time

.33 b

. In L ight of the W ealth of A dmissible G ang

- r elated
E vidence

, A ny E rror in A dmitting the A dditional
T estimony C hallenged by Johnson W as H armless Beyond a R easonable D oubt
A ssuming the foregoing ad missions by other individuals to Detective Castaneda was testimonial hearsay and was admitted in
violation of the federal con frontation clause , we find any error harmless beyond a reasonable doubt in light of the wealth of gang

related evidence that was properly admitted. ( See People v. Bell (20 20) 47 Cal.App.5th 153, 196

- 197 .) First, as to the statements by Billy Shepherd, Marcus Broadmax, and Johnn ie Johnson, Detective Castaneda was personally present for the encounter with Steele in July of 2015, spoke with him during the contact, and observed several UGC tattoos on his person. These observations provided a more direct
link between Steele and UGC than the men found in his company

. ( People v. B ell

, supra , 47 Cal.App.5th at p. 197 [ finding harmless
error where the properly admitted evidence of gang membership was “compelling,” in clud in g the gang

- related tattoos observed on

t wo of the defendants ].) Second, as to Detective Castaneda’s reference to Ward’s commission of an offense with Toomes, as previously discussed, the
detective was involved in the investigation of the predicate offense involving Toomes and personally observed a UGC related tattoo on
Toomes. Thus, the reference to Ward was tangential to proving Toomes’s gang membership. In addition, the jury was instructed that if th ey found Johnson guilty of the charges on trial, they could consider his conduct in determining whether the “pattern of criminal gang activity” had been established. Thus, the jury’s conviction of Johnson supplied the second predicate offense required by section34

186.22, subdivision (e), and any error in admitting the detective’s testimony regarding Toomes and Ward was harmless beyond a reasonable doubt. ( See People v. Garcia

, supra , 46 Cal.App.5th at p. 180 [ finding any error involving predicate acts was harmless given
the properly admitted evidence with regard to one predicate act and
the fact th e defendant’s current conviction qualif ied as a predi c ate act] .) Third, Detective Castaneda’s testimony regarding the Facebook photograph depicting Johnson in the company of UGC
member Coleman was more tangential and indirect than the other

gang

- related observations regarding Johnson, such as his tattoos and Facebook posts, as outlined above. (See Discussion I, section
B

. 5

. b

. , ante .)
Fourth

, and finally, we discern no reversible error regarding the detective’s testimony about the expectation that UGC members
will share crime

- related proceeds. As previously discussed

, t his type of testimony was background inform a tion , it did not involve
the d isclosure of an out

- of

- court statement, and the detective could rely on hearsay in forming his opinio n and tell the jury that he did so in general terms. (See Sanchez

, supra , 63 Cal.4th at p. 699 [observing that the gang expert “ provided general and admis sible
evidence that if a nonmember sold drugs in a gang ’ s territory and failed to pay tax, that pe rson risked gang retaliation”] ; see also
Discussion I, section B

. 3

. , ante .) Moreover, the detective’s identification of one UGC member (Darwin Nixon) as the source for his opinion about profit sharing was fodder for the defense to convince the jury they should accord less weight to this aspect of the detective’s testimony. (See
Sanchez

, supra , 63 Cal.4th at p. 686 [noti ng the jury may accord less weight to the views of an expert who relies on a single source for his opinion].) To that end , both defendants presented experts35

who contradicted Detective Castaneda’s testimony regarding the sharing of profits by UGC gang memb ers who commit crimes. (See
Veamatahau

, supra , 9 Cal.5th at pp. 32

- 34 [noting that the

re liability or trustworthiness of an expert’s testimony is a separate issue from its admissibility under the Sanchez rule and discussing various ways the court and the p arties can test the reliability of expert testimony

, including Evid. Code, § 402 hearings, cross

examination, and the presentation of competing experts].)
G iven that Detective Castaneda ’s views on disbur sement were based on conversations with hundreds of gang members and
constituted permissible background information, we do not discern any prejudice from the fact that defense counsel elicit ed the testimony regarding Darwin Nixon. (See

, generally

, Thompki ns , supra , 50 Cal.App.5th at p p . 408

- 409 [observing that even though a gang officer referenced at least onc e the existence of police reports

as the source of his testimony, he “ would have learned much ” from his personal involvement in relevant investigatio ns, and thus it would be inaccurate to say he solely relied on police reports].) In sum, we are confident the jury ’ s verdict on the gang enhancements would have been the same in this case absent any improperly admitted gang

- related facts under Sanchez or Crawford

. We conclude that any error in admitting the foregoing additional testimony was harmless beyond a reasonab le doubt.

7. There is No Merit to Johnson’s Challenge to the Prosecution’s Hypotheticals To the extent Johnson challenges the prosecutor’s

p resentation of “gigantic, compound hypotheticals,” he acknowledges his challenge is entirely premised on his
Sanchez / Crawford arguments directed at the admissibility of the underlying, gang

- related facts and his assertion that the hypothetical was “the sum product of this compound error.” As36

such, our disposition of these underlying arguments also disposes of
Johnson’s challenge to the hypotheticals. (See Sanchez

, supra , 63 Cal.4th at p. 676 [noting that the “distinction between generally accepted background information and the supplying of case

- specific facts is honored by the use of hypothetical questions”]; People v

. Anthony

, supra , 32 Cal.App.5th at p. 1136 [ Sanchez permits experts to testify to their opinions in response to hypothetical questions];
see also Thompkins

, supra , 50 Cal.App.5th at p. 418 [finding an expert’s opinion was properly admitted where “[m]ost s tatements he made as the basis for his opinion either were not hearsay, were supported by testimony from others that was not hearsay, or were supported by admissible criminal records”].)

II Sufficiency of the Evidence To Support the Gang

Enhancement Allegation
Steele contends the jury ’ s true finding on the gang
enhancement allegation must be reversed because there was insufficient evidence the crimes were gang

- related. Steele notes that “[t]he crimes at issue had an obvious financial mot ive and occurred outside of any gang territory.” As explained below, we conclude that substantial evidence supports a finding that Steele
committed the charged crimes “in association with” the U GC gang.

A. Relevant Legal Principles

1. Standard of Review

“ The standard of appellate review for determining the sufficiency of the evidence supporting an enhancement is the same as that applied to a conviction

. ” ( People v. Weddington (2016) 246 Cal.App.4th 468, 48 3

. ) “ W e view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably37

deduce from the evidence.” ( People v. Griffin (2004) 33 Cal.4th 1015, 1028.)

2. Elements of the Gang Enhancement Allegation To prove a gang enhancement, the prosecution must establish that the underlying crime was “committed for the benefit of, at the direction of, or in association with any criminal street gang” (the

gang

- related prong), “with the specific intent to promote, further, or assist in any criminal conduct by gang members” (the specific intent prong). (§ 186.22, subd. (b)(1); see People v. Albillar (2010) 51 Cal.4th 47, 59.) 13 Because the first prong is worded in the disjunctive, the gang enhancement may be imposed based on either gang association , direction, or benefit. ( People v. Weddington

, supra , 246 Cal.App.4th at p. 484.) T he prosecution may rely on expert testimony regarding criminal street gangs to establish the crime was committed for the benefit of, or in association with, a qualifying gang. ( People v. Vang (2011) 52 Cal.4th 1038, 1048 [“ ‘[e]xpert opinion that particul ar criminal conduct benefited a

gang ’ is not only permissible but can be sufficient to support the

. . . gang enhancement”]; see also People v. Albillar

, supra , at p. 63 [ “ [e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise
the inference that the conduct was ‘ committed for the benefit of .

. . a[ ] criminal street gang ’ within the meaning of § 186.22 [, subd.] (b)(1) ” ].)

13 I n addition, the prosecution must prove the relevant group meets the definition of a “criminal street gang” as defined in section 186.22, subdivision (f). (See Discussion I, section B

. 4

. a

. , ante .) On appeal, Steele focuses on the gang

- related and specific intent prongs of the gang enhancement; he does not challenge the sufficiency of the evidence to support the “criminal street gang” element.38 T he expert ’ s testimony , however, “ ‘ must be rooted i n facts shown by the evidence. ’ ” ( People v. Vang

, supra , 52 Cal.4th at

p. 1045.) “[P]urely conclusory and factually unsupported opinions” are insufficient to support a gang enhancement. ( People v. Ramirez (2016) 244 Cal.App.4th 800, 819

- 820; see People v. Vang

, supra , at p. 1046.)

B. There W as S ufficient Evidence To Support the Jury’s Finding o n the Gang Enhancement Allegation The record supports a finding that Steele and Johnson committed the underlying offenses as gang members acting in association, thus satisfying the first, “gang related” prong of the

statute. Steele, who admitted members hip in the U GC gang, and
was observed with various UGC related tattoos shortly before the charged crimes, committed the crimes with Johnson, another UGC
member

, as established by his tattoos, and Facebook statements and photographs posted shortly before th e instant offense. (See People v. Albillar

, supra , 51 Cal.4th at p. 62 [“ [the] defendants came together as gang members to attack [the victim] and, thus,

. . . they committed these crimes in association with the gang”]; People v.
Morales (2003) 112 Cal.App.4th 1176, 1198 [“the jury could reasonably infer the requisite association from the very fact that [the] defendant committed the charged crimes in association with fellow gang members”].)
In addition

, Detective Castaneda testified that robberies and burglaries are among the UGC gang’s primary activities. ( Cf. People v. Ochoa (2009) 179 Cal.App.4th 650, 661

- 662 & fn. 7 [where the gang’s primary activities incl uded car theft, finding insufficient evidence that the charged crime of carjacking was one of its primary activities]. ) He established that UGC members are expected to, and do, share the proceeds of their crimes. Johnson’s UGC tattoos
included tattoos si gnifying he was a member of a UGC39

burglary/robbery crew. ( People v. Ferraez (2003) 112 Cal.App.4th 925, 930 [ a gang finding may be based upon circumstantial evidence, and “[i]t is well settled that expert testimony about gang culture and habits is the typ e of evidence a jury may rely on to reach a verdict on a gang

- related offense or a finding on a gang allegation”].)
The fact that a gang member recognized for his participation in the gang’s burglary/robbery crew joined together with a second gang member to commit a home invasion robbery

, coupled with the
evidence that burglary and robbery w ere among the gang’s primary
activitie s and its members were expected to share their ill

- gotten gains with the gang, sa tisfies the specific intent prong of section 186.22, subdivision (b)(1)

. ( See People v. Albillar

, supra , 51 Cal.4th at p. 68 [finding substantial evidence the defendants acte d with the specific intent to promote, further, or assist the gang where they intended to rape the victim, they assisted one another in committing the crime, and they were each members of a criminal street gang] .) Indeed, as our Supreme Court has held, “if
substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those g ang members.” ( Id. at p. 68.)
To the extent Steele and Johnson presented their own gang experts with contrary opinions, “[t]he credibility and weight of the expert testimony was for the jury to determine, and it is not up to
us to reevaluate it.” ( People v. Flores (2006) 144 Cal.App.4th 625, 633; see also People v. Albillar

, supra , 51 Cal.4th at pp. 60, 63

- 64 [ finding sufficient evidence to support the finding that a rape by gang members was gang

- related

, despite the expert’s testimony40

“ that the ‘ general view ’ on rape by Latino street gangs ‘ is that it is frowned upon ’ ”]

. )
Steele’s reliance on People v. Albarran (2007) 149 Cal.App.4th 214, to argue otherwise is misplaced. In Albarran , the defendant and a second individual shot at a house during a private birthday party. A divided panel concluded that a new trial motion should have been granted because inflammatory gang evidence had been
introduced that “ had no bearing on the underlying charges ,” and there was little or no evidence of the gang’s connection to the crime. ( Id. at pp . 22 7

- 228 .) At trial, a sheriff’s deputy conceded he did not
know of a motive for the shooting

. ( Id. at p. 227. ) T he second shooter was never caught or identified , leading the court to o bserv e that the fact that more than one shooter was involved, without any additional information, did not demonstrate “one way or another that the crime was gang motivated

. ” ( I bi d.

, f n. 9.)
Unlike Albarran

, here the evidence of gang membership, behavior, and primary activities was substantial and was tailored to the charges

. B oth Steele and Johnson were identified as gang members and convicted for their role in the home invasion robbery.
Th e totality of the evid ence was sufficient for the jury to find that they committed the underlying offenses “in association” with the UGC gang and with the specific intent to promote, further, or assist in criminal conduct by the gang

. That the circumstances also might

“ ‘ reaso nably be reconciled with a contrary finding does not warrant a reversal of the judgment. ’ ” ( People v. Thomas (1992) 2 Cal.4th 489, 514 ; c f. People v. Morales

, supra , 112 Cal.App.4th at p. 1198 [observing that “the typical close case is one in which one gang member, a cting alone, commits a crime”]. )41 III Imposition of Sentences for Both the Firearm and Gang Enhancements Against Steele
As part of the second amended information, in addition to the gang enhancement, t he prosecutor alleged firearm enhance ments under subdivision (e)(1) of section 12022.53 against both Steele and Johnson. Subdivision (e)(1) makes unarmed principals subject to any of the personal use enhancements listed in subdivision s (b), (c), and (d), if the prosecution establishes that ( 1) the person violated subdivision (b) of section 186.22 (i.e.

, the criminal street gang enhancement), and (2) any principal in the offense personally used a weapon as described in subdivisions (b) through (d). ( § 12022.53, subd. (e)(1); People v. Gonzale z (2010) 180 Cal.App.4th 1420, 1424

- 1426.) Here, the jury found true the allegations as ple a d ed against each appellant , i.e., that a principal personally used a firearm in the
commission of the offense

. Under section 12022.53, subdivision (e)(2)

, “ [a]n enhancement for participation in a criminal street gang .

. . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission o f the offense. ” ( I talics added.) There was no finding by the jury that either Steele or Johnson personally used a firearm in committing the charged
crimes. Nevertheless, the trial court imposed both a section
12022.53 firearm enhancement and a section 1 86.22 gang enhancement against Steele based on the court ’ s own finding that

“ [Steele] was clearly the lead actor in this ,” and “ was the one with the gun. ” Steele argues there was insufficient evidence to support a finding that he “ personally ” used a firea rm. In light of the absence of any jury finding on the question of personal use, we asked the42

parties to file supplemental briefs to address whether the trial court
was authorized to (1) make a finding that Steele personally used a firearm during the unde rlying offense ; and (2) impose both a life

term for the gang enhancement pursuant to se ction 186.22, subdivision (b)(4)

, and a consecutive 10

- year sentence for the
firearm enhan c em e nt pursuant to section 12022.53, subdivision (e). In their supplemental letter briefs, both parties recognize the trial court lacked the authority to make the “ personal use ” finding

. We agree. (See § 12022.53, subd

. (j) [“ F or the penalties in this section to apply, the existence of any fact required und er subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact ”].) Respondent therefore concedes the trial court erred in imposing both enhancements a gainst Steele. (See People v. Gonzalez

, supra , 180 Cal.App.4th at p. 1427

. ) We agree that under section 12022.53, subdivision (j), the enhancement with the greater penalty term must be imposed , while the other must be
stricken. ( People v. Brookfield (20 09) 47 Cal.4th 583, 596 .) Accordingly, the 10

- year enhancement imposed under section 12022.53, subdivision (e)(1)

, must be stricken from Steele’s

sentence . ( People v. B rookfield

, supra , at p. 597 [“ T he trial court erred in sentencing [the] defendant to b oth the life term under [§] 186.22
, [ subd .] (b)(4) and the 10

- year sentence enhancement
under [ subds .] (b) and (e)(1) of [§] 12022.53 [and] [t]he Court of Appeal was correct in ordering the 10

- year sentence enhancement stricken”].) 14

14 We note that in pronouncing its sentence, t he trial court sentenced Steele under section 186.22 to a base term of 15 years to life, doubled to 30 years for a strike prior. However, Steele ’ s current abstract of judgment does not reflect the jury’s true finding on the gang enhancement. Upon issuing a n amended abstract of43 I V Propriety of Staying the Sentence on Johnson’s Gang Enhancement, While Imposing Sentence on the

Firearm Enhancement
In its sentencing memorandum, the prosecutor stated that because Johnson was not the gunman (and thus did not personally use a firearm), the court could not impose both the firearm and gang enhancement against him; instead

, it must choose one. T he prosecution recommended that the trial court impose a sentence of 15 years to life for the home invasion offense, thereby utilizing the gang enhancement penalt y term

. Conceding the robbery, and acknowledging the use of a firearm by a principal, Johnson’s counsel argued a determinate term was appropriate and suggested the low term of three years for the robbery itself. Defense counsel argued against the imposit ion of the gang enhancement penalty , asserting that a life term would be
draconian and unfair. In response to the parties’ arguments, the trial court commented on Johnson’s youth as a mitigating factor, noting that
he had turned 18 years of age just month s before the incident. The court highlighted the fact that Johnson did not personally use a firearm and was acting at the direction of the older robber

. In aggravation, the trial court pointed to a prior juvenile adjudication suffered by Johnson, the vulnerability of the victims, and Johnson ’ s willingness to repeatedly follow the directions of the gunman throughout the home invasion robbery. As a result, the trial court selected the upper term of nine years for the robbery in count 1 and

judgment with the mod ifications ordered in our opinion, the trial court should ensure that Steele ’ s abstract reflects imposition of the gang enhancement.44

added a 10

- ye ar term for the section 12022.53 firearm enhancement, for an aggregate term of 19 years. The court stated it

was “ choosing to stay [section] 186.22 [, subd ivision (b)] , the gang allegation, given its imposition of the gun allegation, ” and noted
that “ [i]t may not impose both [enhancements]

. ” On appeal, Johnson contends the trial court lacked the authority to stay the gang enhancement, and requests the matter
be remanded with directions for the trial court to instead strike the

gang enhancement. As previou sly explained (see Discussion III, ante )

, a vicarious liability enhancement under section 12022.53, subdivision (e)

, may not be imposed in addition to the gang enhancement. Instead, the enhancement with the longest term must be imposed and the other
enhan cement must be stricken . ( People v. Brookfield

, supra , 47 Cal.4th at pp. 596

- 597.) In this case the enhancement with the longest term is the gang enhancement, which would mean the trial court was obligated to impose th e gang enhancement penalty against Johnson, while striking the firearm enhancement. Trial courts, however, are authorized to strike the additional penalties provided for under section 186.22 and section 12022.53 in the interests of justice. (§ § 186.22, subd. (g) [“Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section .

. . in an unusual case where the interests of justice would best be served”] ; 12022.53, subd. (h) [“The court may, in the interest of justice purs uant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section”].)
T he trial court began Johnson’s sentencing hearing by acknowledging that it had read both sentencing memoranda and was “fully aware” it had “wide discretion,” including the discretion “whether or not to impose the gang allegation; whether or not to45

impose the gun allegation.” Neither the sentencing memorand a , nor the probation off

i cer’s report, however, delineated the court’s
discretion to strike one or both enhancements in the interest s of justice. While the trial court acknowledged it could not impose both enhancements against Johnson , the reference to its discretion was ambiguous and does not clearly reflect that i t was aware it had the
latitude to strike both enhancements

. I ts comments preceding pronouncement of sentence suggest it found a life term excessive in light of Johnson ’ s young age and role in the offense. Given this record, we conclude that a remand for resentencing is appropriate. (See People v. Salvador (2017) 11 Cal.App.5th 584, 594 [ w here a sentencing error occurred, “providing the trial court with a fresh opportunity for sentencing is the most efficient and respectful solution”].) Upon remand, if the trial court determines that the interests of justice would be served by striking either or both
enhancement s , it should so state on the record. If it does not find such grounds exist, the court must impose the enhancement with the longest penalty term

, which in this case would be the gang enhancement penalty provision , and strike the firearm
enhancement

. V

Stayed Sentences Under Section 654 As noted in our procedural history, the jury found both appellants guilty as charged in count 2 of the informati on and found true the associated firearm and gang enhancement allegations. At sentencing, the trial court ordered the sentence “ stayed ” on count 2 pursuant to section 654, with regard to each appellant. To effectuate section 654, however, the trial court must first impose
the full term and then stay execution of that term. The failure to do

so

— or the imposition of an incorrect term

— amounts to an unauthorized sentence. ( People v. Relkin (2016) 6 Cal.App. 5th46

1188 , 1198 ; People v. Alford (2010) 180 Cal.App.4th 1463, 1469

- 1472.) 15 A claim that a sentence is unauthorized “is subject to judicial correction whenever the error comes to the attention of the reviewing court.” ( People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6; In re Harris (1993) 5 Cal.4th 813, 842.) Accordingly, upon remand, the trial court shall impose

sentence on c ount 2 with regards to each appellant prior to staying
the term under section 654.

VI Implied Striking of the One

- year Prior Prison Term

Enhancement as to Steele

T he trial court found true allegations that Steele suffered a prior “ strike ” conviction, a prior serious felony conviction , and that he had served a prior prison term. D uring the sentencing proceedings, the trial court imposed sentence with regard to both
the strike prior and the prior serious felony conviction , but made no mention of the prior prison term it found true pursuant to section 667.5, subdivision (b). Effective January 1, 2020, Senate Bill No. 136 amen ded section 667.5, subdivision (b)

, to apply only where the prior prison term was served “for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.” (§ 667.5, subd. (b); see Sen. Bill No. 136 (2019

- 2020 Reg. Sess.) § 1.) Because the judgment in the current case is not yet final, Senate Bill No. 136 applies to Steele. ( People v. Winn (2020) 44 Cal.App.5th 859, 872

- 873 [Senate Bill No. 136 applies to nonfinal

15 “ [O]therwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid s entence will remain.” ( People v. Alford

, supra , 180 Cal.App.4th at p. 1469.)47

judgments on appeal ] .) A ccordingly, St ee le ’ s one

- year prior prison
term enhancement must be stricken.

VII Presentence Custody Credits
Steele and Johnson claim they are each entitled to two additional days of presentence custody credits. Respondent agrees,
as do we. Appellants were arrested on September 30, 2015, and
sentenced on November 20, 2019. Including the arrest and sentencing dates, appellants were in actual custody for 1,513 days

, rather than 1,511 days as calculated by the trial court. Accordingly, appellants are each ent itled to a total of 1,513 days of actual custody credit. ( § 2900.5 ; People v. Morga i n (2009) 177 Cal.App.4th 454, 469 [“ A defendant is entitled to credit for the date of his arrest and the date of sentencing”].)

DISPOSITION

As to a ppellant Steele, the ju dgment of conviction is affirmed.
The sentence is vacated and the matter is remanded to the trial
court with directions to : (1) strike the 10

- year firearm enhancement imposed in count 1 pursuant to section 12022.53, subdivision (e)(1) ; (2) impose sentence for count 2, prior to stay ing the term under
section 654 ; (3) strike t he prior prison term enhancement under section 667.5, subdivision (b) ; and (4) award Steele two additional days of presentence custody credits, for a total of 1,513 days of actual custody credit

. The trial court is directed to prepare an amended abstract of judgment reflecting the changes to Steele’s sentence and forward a copy to the Department of Corrections and
Rehabilitation.

As to a ppellant Johnson, the judgment of conviction is
affirmed. The sentence is vacated and the matter is remanded to48

the trial court for resentencing on count 1

. As to count 1, the trial
court shall exercise its discretion to consider whether to strike the additional punishment for either the gang enhancement, or the firearm enhancement, or both, in the interests of justice pursuant to section 186.22, subdivision (g)

, and /or section 12022.53, subdivision (h). In the event the trial cou rt determines that the interests of justice would be served by striking either or both enhancements, it
shall so state on the record. If the trial court does not find such grounds exist, the court must impose the enhancement with the longest penalty term, which in this case would be the gang enhancement penalty provision under section 186.22, and strike the
firearm enhancement under section 12022.53. T he trial court also
shall impose sentence for count 2, prior to staying the term under
section 654

, and a ward Johnson two additional days of presentence custody credits, for a total of 1,513 days of actual custody credit

. The trial court is directed to prepare an amended abstract of judgment reflecting the changes to Johnson’s sentence and forward a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED

FEDERMAN, J. *

We concur:

ROTHSCHILD, P. J. CHANEY, J.

* Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.