Filed 11/5/15 P. v. Brewer CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,
Plaintiff and Respondent,

v.

CHRISTOP HER MICHAEL BREWER,
Defendant and Appellant. 2d Crim. No. B25 7185 (Super. Ct. No. 1358729) (Santa Barbara County)

Christopher Michael Brewer appeals a judgment following conviction of second degree murder (count 1) and dissuading a witness by forc e or threat (count 2), with findings that he personally used a deadly weapon, committed the crimes to benefit a criminal street gang, and served a prior prison term. (Pen. Code, §§ 187, subd. (a), 189, 136.1, subd. (c)(1), 12022, subd. (b)(1), 186.22, sub d. (b)(1), 190.2, subd. (a)(22), 667.5, subd. (b).) 1 We affirm.

FACTUAL AND PROCEDURAL HISTORY In the late afternoon of December 9, 2011, Brewer stabbed Alberto Diaz , Jr.
in the neck
, sever ing a major blood vessel. The stabbing occurred outside the Sant a Maria Budget Inn m otel. Diaz st umbled a short distance near a fast

- food restaurant

1 All statutory references are to the Penal Code unless stated otherwise

.2

before collapsing . A restaurant employee summoned emergency medical assistance, but
Diaz soon died from his stab wound

.

Circumstances of the Murder and its After math ( Count 1) In December 2011, Patricia Perez lived with Brewer's brother, Jacob Brewer, at the Budget Inn

. 2 Brewer also stayed at th e motel from time to time, but in a
different room

.

Diaz, whose moniker was "Stormy," was a crimin al street gang member
kn own for his violence and "having chaos around him." Diaz was in trouble with his street gang , "Sur enos," and had a "green light " or "hit" ordered against him by the gang hierarchy.
I n the afternoon of the murder, Diaz and his friend, David Padilla, rod e their bicycles to the mot el and walked to Perez's room. Perez, Gabriel Almaguer, and
Jacob were in the room. Perez recommended that Diaz and Padilla leave because she did
not want "trouble."

Almaguer quietly asked Perez if Diaz was "Stormy." Perez confirmed
Diaz's identi ty . Almaguer wanted "to approach" Diaz, but Perez warned Almaguer that she did not want "anything like that going down in [her] room." Almaguer and Jacob
then left , followed by Dia z and Padilla a few minutes later.

Almaguer a nd Ja cob entered Brewer's r oom and informed him and Rudy
Ramos that "S tormy " was in the motel. Brewer asked for a "blade," and Almaguer gave
him a three

- inch folding knife. Wh en Almaguer realized that his fingerprints were on the knife, he asked Brewer to ret urn it. Brewer replied, "Don't trip. I got this, my boy."

Almaguer left the room to smoke a cigarette. Brewer, R amos, and Jacob
also left the room and walked across the parking lot. Diaz and Padilla had retrieved their bicycles and were riding away. Br e wer called out to Diaz, "Hey, what's up, homie?" Diaz turned around and rode his bicycle toward Brewer. As Diaz approached, Brewer

2 We shall refer to Jacob Brewer as "Jacob," and Christopher Brewer as "Brewer," not from disrespect, but to ease the reader's task.3

drew the knife and stabbed him in the neck. Brewer and the others then ran away. Diaz called out, "He got me, he stu ck me."

Jessica Manna was walking to the motel to visit her aunt, Stacy Hamrick, who was the motel manager. Manna saw Diaz clutch his chest and fall to the ground. Jacob then ran past Manna and Hamrick. In response to their questions regarding Diaz
, Jacob stated, "You didn't see nothing. Nothing happened." Jacob went into a nearby
room and shut the door.

Diaz stumbled a short distance and collapsed near a fast

- food restaurant. A restaurant customer attended to him, but found him unresponsive. A n employee summoned emergency medical assistance and rendered first aid until paramedics arrived. Diaz died at the hospital shortly thereafter.

In the days f

ollowing the murder, police officers spoke with Brooke Cummings, Brewer's girlfriend, at her home. The interview was recorded. Cummings
stated that d uring the evening of the murder , Brewer stayed with her. She also saw and spoke to him at times for several days there after

. Brewer admitted to Cummings that he
had "murdered" someon e and was "in some deep shit." He also stated that he did not care, and that Diaz was "stupid" and "nobody gives a shit about him." Brewer added that Diaz "had it coming

. " H e denied killing Diaz in self

- defense: "[I]t wasn't s elf defense. I
murdered him."

Cummings als o informed police officers that Brewer, at times during their relationship
, had discussed his criminal street gang involvement. He said his involvement was "really deep," but sometimes p rofess ed a desire to leave the gang. Cummings identified Brewer's ga ng as "Surenos Guad."

At trial, the prosecutor played the recording of Cumming s 's interview with police officers. Expert Witness Gang Testimony

Santa Maria Police Detective Michael Parker wa s assigned to gang suppression de tail . Parker was familiar wit h the " Guada " and Sureno criminal street gang members and the victims of their crimes , having spoken to or arrested hundreds of gang4

members. He testified that a "green light" i s "an open invitation for any gang member
who falls under the Sure ñ o [gang] um brella to take action [against a rule breaker]." Parker opined that Diaz was a member of the Guada and Sureno criminal street gang s , based upon his self

- admissions and prominent facial tattoos declaring his gang affiliation. Informants had reported to police officers that Diaz was the subject of a green light order from the gang hierarchy and had been targeted for assault.

Parker also opined that Brewer was a member of the Guada and Sureno criminal street gang s . Parker rested his opinion in part upon an incident where Brewer

wrote gang graffiti on a school wall; Brewer's admission in a 200 9 probation report that
he ass ociated with Guada gang members; Brewer's admi ssions to jail housing deputies; and a statement by another brother, David Brewer, that C hristopher was a Guada gang
member. Based upon a hypothetical similar to the circumstances of the present crime, Parker opined that Diaz's murder benefitted the Guada criminal street gang because it instilled community fear and increased the reputation o f the gang member who
killed Diaz. Defense Evidence

Gregorio Estevane, a licensed private investigator, testified as a defense expert witness regarding gang murders in Sureno criminal street gangs. Estevane opined
that Brewer was not an active member of any street gang, based in part on Brewer's statement reported in the 2009 probation report. He also stated that it was not likely that Diaz would have been alive had a green light be en ordered against him several years before. Estevane opined that Brewe r's flight following the stabbing does not imply that he was a gang member or that the crime was committed to benefit a criminal street gang.

Brewer testified that he was "in and out" of the Budget Inn, used methamphetamine daily, and sold drugs th at we re given to him by Ramos. Brewer denied that he belonged to any criminal street gang or that he committed any gang

- related
crimes.5 Brewer testified that in the afternoon of the murder, he heard Diaz outside the motel speaking in an angry voice. Brewer took Almaguer's knife because he was frightened. Brewer left his room and walked away to avoid a confrontation with Diaz.

As Brewer was leaving the area , Padilla asked for a cigarette. Diaz then approached Brewer and appeared angry. Diaz demanded tha t Brewer look at him and pay attention to him. Brewer believed Diaz's behavior was threatening. When Diaz

" reach [ ed ]" toward Brewer, Brewer swung the knife at Diaz. Brewer then ran and
discarded the knife. Brewer testified that he did not intend to kil l Diaz and did not weigh the consequences of his actions beforehand.

Psychologist Marianne Davis reviewed Brewer's criminal and mental health
records and interviewed him and his mother

. Davis opined that Brewer suffers from post

- traumatic stress disorde r, bipolar disorder, and methamphetamine and cannabis
abuse . These afflictions, she opin ed, might cause him to overreact or misperceive an act as threatening.

Brewer also infor med Davis that he was in good standing with a criminal street gang but was not affiliated with the gang. S he testified that she believe s that he
minimize s his gang involvement. Dissuading a Witness (Count 2) During his confinement in county jail, Brewer telephoned his friend, Angelina Tejeda. In a recorded telephone convers ation on January 20, 2012 , Brewer stated that "both the girls" were "ratting on [him]," and that he thought "Bro oke's gonna testify in court." Brewer stated that he "should slap that bi tch" and instructed Tejada, "If you ever see her, tell her I said 'H i. ' You know what I mean.

. . . [T]hat kind of a 'Hi.'" At trial, the prosecutor played a rec ording of the jail conversation with Tejada.

Detective Parker testified that Tejada was an admitted member of the Northwest criminal street gang. She also had s everal gang

- related tattoos declaring her
affiliation.6 Conviction and Sentencing The jury convicted Brewer of second degree murder (count 1) and felony dissuading a witness by force or threat (count 2), and found that he personally used a deadly weapon re garding the murder, committed the crimes to benefit a criminal street gang, and served a prior prison term. (§§ 187, subd. (a), 189, 136.1, subd. (c)(1), 12022, subd. (b)(1), 186.22, subd. (b)(1), 190.2, subd. (a)(22), 667.5, subd. (b).) 3 The trial court sentenced Brewer to a prison term of 24 years to life ; imposed a $10,000 restitution fine, a $10,000 parole revocation restitution fine (stayed) , a $80 court security assessment, and a $60 criminal conviction assessment ; and
, awarded Brewer 880 days of pr esentence actual custody credit. (§§ 186.22, subds. (b) (4)(C ) & (b)(5) [minimum parole eligibility], 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.)

Brewer appeals and contends that: 1) the trial court erred by permitting the

prosec ution gang expert witness to testify with testimonial hearsay evidence; 2) insufficient evidence supports his conviction of count 2, felony dissuading a witness; and, 3) the gang

- affiliation questions posed to him during the booking process are
inadmissibl e pursuant to People v. Elizalde (2015) 61 Cal.4th 523, 527.
DISCUSSION
I. Brewer argues that the trial court erred by permitting the prosecution gang expert witness to testify with testimonial hearsay evidence in violation of the Sixth
Amendment. As an example, h e points to Parker's testimony that Brewer introduced himself as "Boogie from Guada" to his gang member cellmate, and stated that he kil led Diaz who was "a disgrace." The jail cellmate relayed this information to police officers during a record ed interview. Brewer correctly asserts that although he did not object to Parker's testimony on Sixth Amendment grounds, an objection would have been futile. ( People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 [ Sixth Amendment confrontation

3 Codefendants Jacob and Almaguer pleaded g uilty prior to trial which then proceeded against Brewer and Ramos. The jury acquitted Ramos of all charges.7

clause not im p licate d where pr osecution gang expert bases his opin ion on hearsay
information in police reports and interviews with gang members ].

The admission into evidence of a testimonial hearsay statement by a
declarant who is not available at trial violates the confrontation clause of the Sixth
Amend ment unless the criminal defend ant had a prior opportunity to cross

- examine the declarant. ( Crawford v. Washington (2004) 541 U.S. 36 .) But "the [C onfrontation ]
Clause ' does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.'" ( Williams v. Illinois (2012)

– U.S.

– [ 132 S. Ct. 2 2 21, 2224] [p l ur. o pn. o f Alito, J., joined by Roberts, C.J., Kennedy & Breyer, JJ.] , quoting Crawford
, p. 59, fn. 9.)

I n Californ ia, an expert witness may testify "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to h i m at or before the hearing, whether

or not admissible, tha t is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to wh ich his testimony relates

. . . . " ( Evid. Code, § 801; People v. Gardeley (1996) 14 Cal.4th 605, 617

- 620 .) Thus, an expert witness regarding crimin al street gangs may base his opinion upon conversations with gang members, information gathered by other law enforcement officers, his own personal investigations, or other information. ( Gardeley
, at p. 620.) "A gang expert's overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable." ( People v. Gonzalez (2006) 38 Cal.4th 932, 949.) Brewer acknowledges that his confrontation clause argument is contrary to People v. Gardeley
, supr a , 14 Cal.4th 605, 617

- 620. 4 We are bound by that decision. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The recent United

4 Our Supreme Court is considering whether a defendant's Sixth Amendment right to confrontation is violated by a gang expert's reliance on testimonial hearsay. ( People v. Sanchez (2014) 223 Cal.App.4th 1, review gr anted May 14, 2014, No. S216681; People v. Archuleta (2014) 225 Cal.App.4th 527, review granted June 11, 2014, S218640.)8

States Supreme Court decision in Williams v. Illinois
, supra , - U.S.

- [132 S.Ct. 2221 ] had no majority opinion and the outcome found no constitutional violation. We thus reject
Brewer's Sixth Amendment contentions.
II.

Brewer contends that insufficient evidence supports his conviction of felony dissuading a witness by threat or force

. ( People v. Yo ung (2005) 34 Cal.4th 1149,
1210 [ "The crime of intimidating a witness requires proof that the defendant specifically intended to dissuade a witness from testifying"].) He asserts that the evidence merely
establishes his anger toward Cummings, or a s uggestio n that Tejada speak to Cummings
if Tejada "ever" saw her

.

In reviewing the sufficiency of evidence to support a conviction, we
examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. ( People v. Johnson (2015) 60 Cal.4th 966, 988; People v. Jackson (2014) 58 Cal.4th 724, 749.) Our review is the same in a pr osecution primarily resting upon circumstantial evidence. ( Johnson
, at p. 988; People v. Watkins (2012) 55 Cal.4th 999, 1020.) We do not redetermine the weight of the evidence or the credibility of witnesses. ( People v.
Albillar (2010) 51 Cal.4th 47, 60 ; People v. Young
, supra , 34 Cal.4th 1149, 1181 ["Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact"].) We must accept logical inferences that the jury might have drawn from the evidence although w e would have concluded otherwise. ( People v. Streeter (2012) 54 Cal.4th 205, 241

. ) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." ( Albillar
, at p. 60.)
Se ction 136.1, subdivision (a)(1) punishes a person who "[k] nowingly and maliciously prevents or dissuades any witness or victim from attending or givi ng testimony at any trial

. . . . " Section 136.1, subdivision (c) (1) punishes the crime as a felony if the act "is accompanied by force or by an express or implied threat of force or9

violence, upon a witness . . . ." There is no talismanic requirement that a defendant utter the words, "Don't testi fy," to commit the offense. ( People v. Thomas (1978) 83 Cal.App.3d 511, 514.) The crime is committed upon proof that a defendant's words or actions support the inference that he sought to prevent or dissuade, by an express or implied threat of force or v iolence, a potential witness from attending trial. ( Ibid. )

Sufficient evidence and reasonable inferences therefrom establish that Brewer attempted to dissuade Cummings's testimony by an implied threat of force or violence, within section 136.1, subdivisi ons (a) and (c). During the jail conversation,
Brewer acknowledged t hat Cummings had spoken with police officers ("ratting on [him] right now") and would testify against him at trial. Brew e r knew that he had made damaging statements to Cummings that woul d implicate him in the murder of Diaz
, weaken h is theory of self

- defense , and support his involvement in a criminal street gang

. Tejada was a n admitted mem ber of the Northwest criminal street gang and had gang

tattoos. The prosecutor played a recording o f the jail conversation at trial, and the jury
heard the nuances and inflections of Brewer's voice . The jury was free to interpret the words spoken from the surround ing circumstances of the case. ( People v. Mendoza (1997) 59 Cal.App.4th 1333, 1341.)
II I. Brewer argues that his answers to the gang

- affiliation questions posed to him during past and present police booking procedures are inadmissible pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 478

- 479 (" Miranda ") and the recent decision in People v . Elizalde
, supra , 61 Cal.4th 523, 527 (" Elizalde "). He claims the error contributed to the guilty verdict because the booking evidence is "compelling" compared to the "disconnected scraps" of other evidence r egarding his gang affiliation.

Elizalde con sidered whether a defendant's answers to booking questions regarding gang affiliation are admissible in the prosecutor's case

- in

- chief. "Here we consider whether routine questions about gang affiliation, posed to defendant while processing him into jail o n murder charges, come within Miranda's well

- recognized booking exception. We hold that the questions exceeded the scope of the exception and10

t hat officers should have known these questions were reasonably likely to elicit an
inc riminati ng response becaus e of California's criminal gang statutes and defendant's pendin g charges. While officers were permitted to ask t he se qu estions for institutional security purposes, defendant's un

- Mirandized responses were inadmissible against him during the case

- in

- chief. " ( Elizalde
, supra , 61 Cal.4th 523, 527

. )

The erroneous admission of a defendant's booking statements obtained in violation of the Fifth Amendment is reviewed for prejudice pursuant to the reason able
doubt standard of Chapman v. California (1967) 386 U.S . 18 . The test requires the People to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict. ( Elizalde
, supra , 61 Cal. 4th 523, 542.)

Elizalde concluded that the applica tion of Mira n da to admissions of gang
member ship made in response to booking questions depends in part on the crime s for
which the defendant was arrested. ( Elizalde
, supra , 61 Cal.4th 523, 534 [in California, gang membership often has penal consequences].) The record here does not contain complete information regarding Brewer's earlier arrests and bookings during which he admitted gang association or membership. For purposes of argument, we will assume that the booking officers could reasonably have expected to elicit responses that could be
used against Brewer in a criminal proceeding. ( Elizalde
, at p. 527.)

Any error here is harmless because Brewer's criminal street gang membership was established beyond a reasonable doubt by other evidence. Brewer
admitted to a probation officer that he wrot e gang

- related graffiti on a high school wall in
2007

. During a field interview in 2007, Brewer admitted that he was a member of the Guadalupe criminal street gang. In 2009, Brewer admitted to a probation officer that he associated with the Guadalupe gan g. David Brewer informed Detective Parker that his brothers Christopher and Jacob were gang members. Brewer appeared in a video recording, played for the jury, askin g "How's the G

- life in Guada?" Parker testified that
"G

- life" mean s "gangster life." Br ewer also sent a text message to "L'il Clowner" two days following Diaz's murder, stating, "Stay G." Brewer selected "BrewBooG13" as his email address. Parker testified that "Brew" indicated Brewer's name, "Boo" indicated his11

moniker, "Boogie," and G13 i ndicated his gang. Brewer's girlfriend informed police officers that he was deeply into his gang but spoke of leaving it. Brewer also admitted to Doctor Davis that he was in good standing with his gang. Finally, Parker opined that Brewer was a gang memb er based upon a review of police files and probation reports, among other evidence. ( Elizalde
, supra , 61 Cal.4th 523, 54 2 [police officer expert witness opined that defendant was a gang member].) This evidence establishes that the jury would have reached the same conclusions absent evidence of Brewer's answers to booking questions. ( Ibid. [application of Chapman h armless error test].)

The judgment is affirmed.
NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.12 Rick Br own, Judge
Superior Court County of Santa Barbara

______________________________

Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.