1

Filed 10/22/13 P. v. Zavala CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK ANDREW ZAVALA, et al.,

Defendants and Appellants.

 H036028

 (Santa Clara County

 Super. Ct. No. CC813723)

Following a jury trial, defendants Mark Andrew Zavala, Scott Alan Hensley, and 

Jonathan David Rodriguez were convicted of three counts of robbery (counts one through 

three) (Pen. Code, §§ 211-212.5, subd. (c))1and defendants Zavala and Hensley were 

also convicted of assault with a firearm (count four) (§ 245, subd. (a)(2)). For all of the 

crimes of which defendants were convicted, the jury found true the criminal street gang 

allegations (§ 186.22, subd. (b)(1)(C)). As to counts one through three, the jury found 

true that defendant Zavala had personally and intentionally discharged a firearm 

(§ 12022.53, subd. (c) and (b)) and that both defendants Hensley and Rodriguez were 

principals in the offense and at least one principal personally and intentionally discharged 

a firearm (§ 12022.53, subds. (c) and (e)(1).) The jury also found true that defendant 

 

1 All further statutory references are to the Penal Code unless otherwise stated.
2

Zavala had personally used a firearm in the commission of the assault (count four) within 

the meaning of section 12022.5, subdivision (a).

Defendant Hensley admitted a prior conviction within the meaning of Three 

Strikes law (§§ 667, subd. (b)–(i), 1170.12), a prior serious felony conviction (§ 667, 

subd. (a)), and two prior prison term allegations (§ 667, subd. (b)). Defendant Rodriguez 

admitted a prior prison term allegation (§ 667, subd. (b)). 

The court sentenced defendant Zavala to a total prison term of 33 years, defendant 

Hensley to a total prison term of 31 years, and defendant Rodriguez to a total prison term 

of 22 years.

Each of the defendants appeals and raises multiple contentions. We affirm the 

judgments.

I

Procedural History

By first amended information filed on January 15, 2010, defendants were charged 

with committing three counts of second degree robbery (§§ 211-212.5) against three 

victims, specifically Mitchell French (count one), Richard Dowdy (count two), and 

Jeffrey McBee (count three), on or about July 23, 2008. Defendants Hensley and Zavala 

were charged with committing an assault with a firearm upon Joseph Esquibel (§ 245, 

subd. (a)(2)) on the same date (count four). The information contained gang and other 

sentence enhancement allegations against defendants and a Three Strikes allegation 

against defendant Hensley.

Before trial, defendant Hensley filed in limine motions to exclude hearsay 

evidence of prior offenses and activities allegedly connected to him and to bifurcate the 

trial of the gang enhancement allegation (§ 186.22, subd. (b)). Defendant Zavala also 

filed a motion in limine to exclude gang-related evidence on the ground that there was no 

evidence the charged crimes were gang related or alternatively, to bifurcate the trial of 
3

the gang enhancement allegations. Defendant Rodriquez's counsel joined in the other 

defendants' motions. The court denied the motions to exclude gang evidence and to 

bifurcate the trial.

Defendant Zavala then filed a separate motion to exclude all references by 

Sergeant Livingston, the prosecution's gang expert, to accusatory statements made by 

Kyle Moneyhun and recited in Campbell Police Department reports because their 

admission would violate his right to confrontation under the Sixth Amendment as set 

forth in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] (Crawford) and 

Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266] (Davis).

A jury was selected. Trial commenced on April 7, 2010.

On April 8, 2010, toward the end of the testimony of French, one of the alleged 

victims, an issue arose regarding his conduct in front of the jury while under oath as a 

witness. The trial court separately spoke with two jurors, Jurors No. 9 and 5, excused 

Juror No. 9, denied requests to excuse Juror No. 5 and Jurors No. 2, 3, and 6, and denied 

motions for mistrial.

On April 9, 2010, out of the presence of the jury, the trial court disallowed 

Sergeant Livingston from testifying as to Moneyhun's statements.

The jury returned guilty verdicts and true findings against all defendants.

II

Evidence

A. Prosecution's Case

At trial, R.B., who was then 18 years old, testified that he had been a friend of 

Kyle Moneyhun, whose street name was Ghost. Before the robbery, R.B. was living on 

the streets and spending most of his time with Moneyhun. At that time, R.B. was 

"kick[ing] it with northerners." Most of the people with whom he hung out were 

affiliated with northerners.
4

Earlier on the day of the robbery, R.B. and Moneyhun went to Michelle's house, 

where they had been four or five times before, to drink. Everybody there was drinking. 

R.B. drank beer and smoked a joint.

While at Michelle's house, R.B. heard people "talking about doing a robbery." 

One of the people was Mark, who had dark skin and a ponytail called a "chongo" at the 

back of his head. R.B. had heard other people refer to Mark as "Little Savage." 

Moneyhun was the person who came up with the idea of robbing a marijuana 

dealer named Mitch. Moneyhun had met Mitch through R.B. and both of them had 

bought marijuana from Mitch, who sold it from his garage. R.B. knew that Mitch had a 

safe, in which he kept his marijuana, in his garage. Around July 2008, R.B. was smoking 

marijuana daily, sometimes more than once a day. R.B. did not want to be involved in 

the robbery because Mitch was a "good drug dealer" and he wanted to continue buying 

from him. He was also concerned that Mitch would be able to identify him.

In addition to Mark, J-Dog, and Michelle were among those who "wanted in" on 

the robbery. R.B. had met Mark and J-Dog once or twice before. Mark and Michelle had 

an argument about her participation because "she had a little kid." Mark told Michelle 

that she could not go and Michelle seemed upset. There was discussion about the need for 

cars to get away. The plan was to call SJU, the San Jose United gang, to obtain one or 

two cars for the robbery. Michelle was going to make that call to a friend. R.B. heard 

talk about obtaining guns. Mark indicated that he was willing to shoot if he had to. Mark 

left Michelle's house to get a gun.

At some point, everybody else left Michelle's house. Moneyhun and R.B. went to 

the light rail station. R.B. received a call from his friend Gabby, who lived next door to 

Mitch, while they were waiting for the light rail. Gabby had been Moneyhun's girlfriend 

for a while. Barrgan and Moneyhun took the light rail downtown, where they waited to 

be picked up.
5

The next day, R.B. and Moneyhun returned to Michelle's house. As they were 

leaving, the police arrived and they were taken to the downtown Campbell Police 

Department. R.B. was interviewed by an officer. He remembered telling officers that 

someone named J-Dog had been part of the discussion. R.B. testified that he did not 

want to be a snitch then and he did not want to be a snitch at trial.

R.B. testified that he did not recognize Mark or J-Dog in court but R.B. also 

remarked that the men looked different because their hair had grown out. At trial, R.B.

picked out Mark, who had been at Michelle's house, from a six-photograph lineup, which 

was admitted into evidence. R.B. initially denied mentioning the name Peanut to police. 

After looking at the transcript of his recorded police interview, R.B. acknowledged that it 

appeared he had said Peanut was the person who would get the cars but he did not 

remember saying so and he did not know Peanut.

Jeffrey Allen McBee testified that, at roughly 6 p.m. on July 23, 2008, he was at 

his friend Mitchell French's house on Jones Way in Campbell.2 French had a recording 

studio in his detached garage. A male named Richard (also known as Oso) was there.

Around 6 p.m., McBee left French's detached garage and walked to the street, 

where he came upon four people, one woman and three men. It was a very bright 

summer day. At trial, McBee had no doubt that the three defendants were the three men 

in that group. McBee "got a strange vibe" from the group and asked, "What's happening, 

guys?" McBee had known French since high school and he knew most of his friends but 

he had not seen these individuals before.

McBee followed the group, which had entered French's backyard unannounced. 

McBee heard someone asking in a loud voice for Craig. McBee peered into the backyard 

from the gate and saw French standing outside the doorway to the garage. The people in 

 

2

For the sake of clarity, we will generally refer to Mitchell French as French and to 

Stephanie French, his wife, as Stephanie.
6

the group were walking around the backyard, "checking out things," and asking for Craig. 

McBee estimated he was 15 to 20 feet from defendant Hensley and the others. French 

was telling them that there was no Craig there and they needed to get out of his backyard.

The group left the backyard and filed past McBee. McBee saw them head down 

the sidewalk toward the next door neighbor's house. When McBee asked who those 

people were, French said, " 'I have no idea who those guys were.' " McBee and Richard 

remained with French in the garage.

Sometime later, defendant Zavala, who McBee described as Hispanic, stepped into 

the garage, signaled them to be quiet by putting his finger to his lips, and pulled out a 

revolver, which "looked like a snub nose .38 caliber pistol." Richard hit the deck and lay 

down. Defendant Zavala ordered McBee to get down on the ground but McBee was 

paralyzed in fear. Defendant Hensley entered the doorway and blocked the exit. Hensley 

was holding a pistol and pointed it at French. Someone commanded McBee to " 'put his 

stuff out on the table.' " McBee complied and put his cell phone on an electrical spool 

table.

Defendant Zavala said to McBee, "Get the fuck down or I'll blow your fucking 

head off." He said it a couple of times in an angry and frantic voice and moved closer 

before McBee, who was in shock, lay down. Defendant Hensley, whom McBee 

described as white, was shouting orders at French.

McBee heard defendant Zavala tell defendant Hensley, "Watch those mother 

fuckers." Defendant Hensley said, "I got these mother fuckers. Don't worry. Just get 

going with the money." Defendant Hensley put his knee in McBee's back and put his gun 

to McBee's head.

Out of the corner of his eye, McBee could see that defendant Zavala had his gun 

on French, who was standing. French appeared terrified. Defendant Zavala was striking 

French with a gun, swearing, and shouting commands at him to open his safe.
7

McBee could hear, but could not see, the safe being opened. McBee heard a 

conversation between defendant Zavala and French regarding a second safe. French 

indicated that the safe was not his and he did not know the combination. Zavala or 

Hensley said to the other to make sure to take everything. McBee heard some rustling 

around in the room and then felt hands going through his pockets.

The victims were told to stay down and count to 100. Out of the corner of his eye, 

McBee saw someone grab a guitar. 

When the victims got up, they found that a bass guitar and electric guitar were 

missing and the safe was wide open. McBee had lost a small amount of cash and some 

medical marijuana that had been taken from his pocket. 

When the police arrived, McBee provided descriptions of the robbers. At trial, 

McBee testified that he definitely remembered defendant Hensley's and defendant 

Zavala's faces and the tattoos on Hensley's neck. McBee identified them as two of the 

group that had been there before the robbery.

Defendant Zavala's haircut at trial was different from the haircut he had during the 

robbery. At the time of the robbery, defendant Zavala had a "homey cut," which McBee 

described as "a shaved head with a bun in the back and a little ponytail going down the 

back of the neck." McBee described the second robber, whom he identified as defendant 

Hensley, as Caucasian or white, in his late 20's or early 30's, between five foot, 10 inches 

to six feet tall, and about 180 pounds, with a tattoo on his neck.

McBee admitted at trial that, during the afternoon before the robbery, he had 

smoked approximately half of a marijuana cigarette. He had previously told police and 

testified that medication, by which he had meant marijuana, had been stolen from him 

during the robbery. R.B. indicated that French and he were medical marijuana patients.
8

McBee had reported to police that, on the day before the robbery, he had seen a 

suspicious person hanging out at the corner of Jones Way and Smith. He later learned 

that the person was Ghost.

McBee was shown multiple photographic lineups on different days by different 

officers. McBee believed that Richard Dowdy (Oso) was involved in the robbery 

because he told McBee that he was not going to identify people that he recognized from 

the incident.

Stephanie French testified that Mitchell French was her husband and they had two 

children. On the date of the robbery, her family resided at 835 Jones Way in Campbell 

and she and their children were at home. Her husband had two friends visiting, Jeff 

McBee and a man they knew as Oso, and the three men were in their detached garage. 

They had known McBee for about 10 years and he was a good friend of her husband.

At about 6 p.m. that day, three men and a woman entered through a side gate and 

came to Stephanie's open back door. The woman asked for someone named Craig. 

Stephanie told them no Craig lived there. Her husband came out of the garage and asked, 

" 'Who are you? What are doing in my backyard.' " She heard someone respond, "You 

don't know who you're messing with." Stephanie subsequently put her head back out and 

asked if everything was okay; French indicated they had left. At trial, Stephanie 

recognized defendant Hensley; she was certain that he was one of the people at her back 

door. She indicated the other males may have been Hispanic. 

Stephanie knew that her husband had a safe in the garage. The safe contained over 

$1,000. According to her, French's friend had asked him to keep another safe for a month 

or two. Stephanie acknowledged that French was a medical marijuana patient. She 

denied having any knowledge that he sometimes sold marijuana from the garage.

French and McBee subsequently came into the house; French told Stephanie that 

they had just been robbed. Somebody called 911. The police arrived and separately 
9

interviewed each of them. Stephanie gave police a description of the person whom she 

identified at trial as defendant Hensley.

Wells French, who goes by the name Mitchell, testified. On July 23, 2008, he 

came out of his garage and saw a woman and some men whom he did not recognize in 

his backyard. They asked about a person named Craig and he told them a Craig did not 

live there. The female said, " 'You don't know who you're fucking with." They left 

through the gate.

French returned to the garage. At about 6 o'clock, French was in the garage with 

McBee and Oso. French acknowledged that he had smoked a little marijuana and had 

drunk a few beers.

When the incident began, the first thing French saw was a gun. He later described 

it to police as a snub-nose .38. The gun was pointed at his face and he was told to get 

down. Both his safe and a friend's safe were there. French was ordered to open his safe, 

which was "kind of hidden, but not fully." It contained "some pot and a lot of cash." He 

was struck in the back of the left knee and in his mouth. French subsequently told the 

officers that he was pistol whipped. When asked whether he was scared, French said, 

"Absolutely."

In addition, French's Motley Crue wallet was taken from his person and two 

guitars were taken from the garage, which was thrashed. He was on the ground during 

most of the incident. He heard them talking. He remembered being told to count to 100.

At trial, he said that he could not be 100 percent sure that anyone in the courtroom 

was in his backyard that day. French testified that he could not remember what the 

person holding the gun to his face looked like. He indicated that the incident happened 

very quickly. He gave descriptions to police after the incident and, at trial, he confirmed 

that he told the police the truth and the event was then fresh in his recollection. French 
10

recalled describing one person as a white adult male, about six feet tall, and about 180 

pounds and with a tattoo on the right side of his neck.

French denied telling an officer that he received a death threat on his cell phone or 

that he was hiding out at a friend's house because he was scared for his life. He admitted 

repeatedly telling the prosecutor that he did not want to come to court and he was scared 

for himself and his family. 

On cross-examination, French testified that he did not believe Oso had anything to 

do with setting up the robbery. French had known McBee since he was "a little kid" and 

he was 39 years old at the time of trial. French and McBee both had medical marijuana 

licenses; they smoked marijuana together.

French acknowledged sometimes keeping marijuana in his safe but he claimed that 

he ordinarily kept the money paid for using his recording equipment in it. He thought he 

had $800 to $1200 in the safe at the time he was robbed. He admitted that he had 

marijuana growing in his backyard.

French knew Ghost and he admitted giving marijuana to Ghose. French denied 

ever selling marijuana.

French indicated that the descriptions that he had given police were of the people 

he had seen in his backyard, not the robbers.

On redirect examination, French confirmed that he was 60 percent sure that 

defendants Hensley and Zavala were the people that held him at gunpoint in his garage.

On recross-examination, French recalled that, about a year earlier, he was asked whether 

anybody in court had come to his garage that day and he testified that he could not "make 

100 percent identity" and none of the people looked familiar to him.3

 

3

French testified at the preliminary examination on April 1, 2009.
11

Richard Dowdy, who testified under a grant of use immunity, indicated that he did 

not want to be labeled a snitch. In July 2008, Dowdy was hanging out in French's 

detached garage located in the City of Campbell. McBee was there as well; they were 

playing music and drinking beer. Dowdy looked toward the door, saw a snub-nose 

revolver pointed at his face, and he immediately went to the ground. Dowdy had a prior 

robbery conviction and he knew the routine. He claimed that he kept his face down until 

the robbers left and he was not able to identify anyone.

Dowdy heard people talking to French; French was "making little noises like he's 

getting beat up." At some point, Dowdy was instructed to count to 100. Dowdy lost a 

cell phone, his car keys, and his wallet containing one dollar in the robbery. 

Dowdy knew that French had a safe in the garage and there was another safe that 

belonged to one of French's friends in the garage. He described them as being in plain 

view.

Dowdy remembered talking to an officer shortly after the robbery. He indicated 

that he subsequently spoke with a detective, who treated him as a suspect and executed a 

parole search of his house.

Maria Elena Vasquez lived at 845 Jones Way at the corner of Smith Avenue. She 

testified that at around 6 o'clock in the evening on a day in July 2008, she saw her 

nephew, defendant Rodriguez, whom she identified at trial, outside her house and then he 

knocked on the door. Defendant Rodriguez told her that he had been dropped off. He 

was in her house for about five minutes and then he said he was leaving. At trial, she 

could not remember if she had seen him getting into a car. After she read the police 

report, she stated that he left in a car.

About 25 to 30 minutes later, looking out her south facing window, Vasquez saw a 

black Lexus stopped near the corner of Smith Avenue and Jones Way. Vaquez saw 

defendant Rodriguez standing on the street corner and looking around. Vasquez also saw 
12

a different nephew, Joseph, who was about 37 years old, getting out of a truck parked 

near the corner of Smith and Jones. She denied that she told officers that she saw what 

happened next but she admitted telling officers that she was looking out the south 

window of her house. 

Vasquez acknowledged seeing two people run across the grass in front of her 

house toward Smith Avenue and defendant Rodriguez. She could not recall giving 

descriptions to police. A portion of the police report was read into the record: "Maria 

described S-3 as Hispanic male adult with a long ponytail on the back of his head. S-2 

was described as a white male adult." Vasquez then recalled that the two people, a white 

male and a dark male, were running toward Smith Avenue and defendant Rodriguez and 

one had a guitar.

At trial, Vasquez initially could not recall telling an officer that she saw Joseph 

start running toward the Lexus but she later remembered that she had told the officers 

that information. Vasquez testified that she saw Joseph screaming and running toward 

Smith Avenue and the black Lexus when he was "going after the guys." 

Vasquez saw defendant Rodriguez run from the corner toward the Lexus, but she 

claimed that she did not see defendant Rodriguez get into the Lexus. Vasquez could not 

recall telling an officer that she saw them loading property into the vehicle or she saw 

defendant Rodriguez get into the vehicle's back seat. Another portion of the police report 

was read into the record: "Maria said she was looking out of a window on the south side 

of her house and observed S-2 and S-3 loading the property into the vehicle."

Vasquez denied telling officers that she saw a person on the passenger side of the 

vehicle pull out a gun and shoot at Joseph. She saw the black Lexus drive away.

About 10 to 15 minutes after the incident, Vasquez received a call from defendant 

Rodriguez.
13

Vasquez said that she remembered being shown photographs by police but she had 

been unable to identify a photograph of either the driver or front seat passenger of the 

black Lexus.

Gabriella Vasquez4testified. She lived at 845 Jones Way, which was on the 

corner of Smith Avenue. Mitch and his family lived next door.

Gabriella admitted that, on the night of the incident, she told police officers that 

she was scared to talk to them. She also confirmed that the police had come to her house 

and told her that she had to testify; she had told police that she was scared to testify and 

she did not want to be a snitch. She testified that she did not want to be a snitch.

Gabriella identified defendant Rodriguez in court and confirmed that he was a 

relative. At first, Gabriella could not remember that, on July 23, 2008, her attention was 

drawn to four or five people walking toward the backyard of the house next door. She 

denied seeing defendant Rodriguez walk to the next door neighbor's backyard. She 

admitted talking to a police officer on the night of the incident but she denied saying that 

she saw defendant Rodriguez walking toward that backyard with others. She could not 

remember telling police that she saw a male with a braided ponytail and shaved head, a 

white male with curly hair and glasses, defendant Rodriguez, and a female go to the 

backyard next door.

Gabriella recalled that defendant Rodriguez came to her home, visited, and left. 

She claimed that he was in her house about 30 minutes and she could not remember 

telling officers that he had been there for five to 10 minutes. She had been surprised to 

see defendant Rodriguez because she had not seen him for a year or two. 

Gabriella did not remember telling an officer that she had seen "a black-colored, 

four door car, possibly a Pontiac." She acknowledged that a car drove away but indicated 

 

4

To differentiate her from Maria Vasquez, we will generally refer to Gabriella 

Vasquez as Gabriella.
14

that she did not see the people with whom defendant Rodriguez left. She thought she 

might have told a police officer that they returned 30 minutes later.

Gabriella did not recall telling officers that she had seen defendant Rodriguez on 

the corner and denied saying that she had seen him run over to the car and get into the 

back seat. Gabriella did recall hearing her mother, who was at the window, say, "Oh, 

that's fucked up," and then going to the window herself. Gabriella saw her cousin Joe 

saying something and then being shot at. She heard the gunshot. She could not recall 

telling police that "the guy with the ponytail shot at him." She explained that a "chongo" 

was "a ponytail in the back of the head with no hair around it." After reviewing a 

transcript of her interview with police, Gabriella conceded that the interviewing officer 

had asked the length of the ponytail and she had indicated about six inches.

Although Gabriella could not remember telling the police many things at trial, she 

indicated that, on the evening of the incident, she had tried to tell the officers everything 

that she had seen.

On cross-examination, Gabriella remembered seeing a male with a ponytail and an 

otherwise shaven head, a male with brown, curly hair, defendant Rodriguez, and a 

female. She could not recall seeing a fifth person, specifically an older, more heavyset 

male wearing a white Raiders jersey. When asked where she was when she saw people 

walk toward Mitch's house, she indicated she was in the living room of her house looking 

out a window facing Jones Way. She also remembered the male with curly brown hair 

driving away in the car that had been parked on Smith Avenue facing west.

Gabriella knew Moneyhun and confirmed that he was known as Ghost. Around 

the time of the robbery, Moneyhun was coming over to her house and hanging around 

with her. She denied seeing Moneyhun go to Mitch's house and come back with 

marijuana but she admitted knowing that Mitch had marijuana.
15

Joseph Ramon Esquibel5testified. On the night of the incident, Esquibel was 

returning to his home at 845 Jones Way, which was on the corner. When Esquibel drove 

up to his house, he saw a male, who he has since learned is related to him, standing on the 

corner. As Esquibel was walking toward his house, he saw two males, whom he had 

never seen before, coming from the house of his next-door neighbor Mitch and running 

across his lawn toward Smith Avenue. They passed within a couple feet of him. They 

had guitars and a tin can in their hands. Esquibel told the two, " 'This is not going to 

happen,' " by which he meant "robbing his neighbor." He told the people in his house to 

call 911. The two men went to a dark-colored vehicle facing westbound on Smith and 

jumped in.

Esquibel was on the sidewalk about five feet from the vehicle. The passenger 

pulled out a gun and Esquibel was scared that he was going to be shot. The passenger 

pointed the gun slightly away from Esquibel and fired. The bullet hit one of the rocks on 

the side of Esquibel's house and a piece of rock hit Esquibel in the face. Esquibel started 

running. He ran to the front of his house and then went to check on Mitch.

At trial, Esquibel could not recall telling the police many things or providing 

particular descriptions of the driver and passenger. He could not recall telling officers 

that the person standing on the corner appeared to be a lookout. Esquibel acknowledged 

that he had heard that his cousin, Victor Esquibel, was a category three member of the 

Nuestra Familia. Esquibel could not identify anyone in court but he acknowledged that 

on the night of the incident he gave descriptions of the two people who ran past him to 

police. Esquibel stated that he had told the truth to the police to the best of his ability and 

the incident was then fresher in his recollection than it was at trial. He remembered that 

 

5 Our references to "Esquibel" are to witness Joseph Esquibel, not Victor Esquibel.
16

the day after the incident he identified the shooter from a photographic lineup shown to 

him by an officer.

Esquibel testified that he told the truth to the best of his ability at the preliminary 

examination. His prior testimony regarding the heights of the driver and passenger was 

read into evidence.

Brian Sessions, an officer with the City of Campbell Police Department, testified. 

He was the first officer to arrive at Jones Way on July 23, 2008.

The first person with whom Officer Sessions made contact was Esquibel. 

Esquibel told Officer Sessions that he saw a white male and a Hispanic male running 

from his neighbor's house; they were carrying guitars. Esquibel told them to stop but 

they continued running. Esquibel gave descriptions of the two men. A salient feature of 

the white male was a visible tattoo on his upper chest; he was about five feet, 10 or 11 

inches tall and had a thin build. The Hispanic male had a dark complexion and a braided 

ponytail.

Officer Sessions was told by Esquibel about an individual standing on the corner 

of Smith and Jones. Esquibel referred to him as "a lookout" and described him as a thin 

Hispanic male, five feet, four inches tall, approximately 22 years of age, who was 

wearing a black and white hat.

The officer said that Esquibel reportedly yelled into the house for his mother to 

write down the license plate. The man on the corner ran to the black Lexus, grabbed its 

rear license plate and, Esquibel believed, pulled the plate off the car. That individual then 

got into the back seat. The white male got into the driver's seat and the male with the 

ponytail got into the right, front seat of the black Lexus.

As Esquibel approached the vehicle, the white male told the front seat passenger, 

" 'Cap the mother fucker.' " The front seat passenger had pointed a black, snub-nose 

revolver at him and said something to the effect, " 'I'm going to fucking cap you,' or, 'I'm 
17

going to blast you[.]' " Esquibel feared he was going to be shot and backed up. The front 

seat passenger with a ponytail had turned the gun slightly and fired a shot in Esquibel's 

direction.

Officer Sessions also interviewed Richard Dowdy. Dowdy told him that he 

believed there had been two robbers because he heard them talking to each other but he 

had seen only the pistol pointed at him. He heard one tell the other, "Take everything 

you touch." He described the gun as a black, .38 caliber, snub-nose revolver.

Officer Sessions also spoke with McBee. McBee described the four people who 

had walked up to French's residence before the robbery: (1) a Hispanic male, (2) a white 

male in his late 20s, approximately 180 pounds, about five feet, 10 inches to six feet tall, 

with tattoos on his neck, (3) a Hispanic male adult, possibly with Pacific Islander heritage 

as well, with a dark ponytail and shaved head, and (4) a Hispanic female. McBee 

indicated that, during the robbery, the robber with the ponytail took money and some 

marijuana out of his pocket while he was lying on the garage floor.

Spencer Billman, a police officer with the Campbell Police Department, responded 

to 835 Jones Way at about 6:30 p.m. on July 23, 2008. He interviewed Stephanie French, 

who described four individuals who had come to her home that day. She stated that two 

of them were "possibly Mexican guys." A third was a white male adult, approximately 

six feet, one inch tall, with a thin build and a "snaggle tooth," in his late 20s. The fourth 

person was a Hispanic female adult in her late 20s.

From French, Officer Billman obtained descriptions of four individuals who had 

entered his backyard. French described a Hispanic male adult, a white male adult about 

six feet tall with tattoos on his neck, a black or Hispanic mixed race male adult who had a 

braided ponytail of dark brown or black hair and an otherwise shaved head, and a 

Hispanic female adult.
18

Officer Billman was told by French that two of the original four had returned. The 

male with the ponytail had a handgun, a black snub-nose revolver, which he pointed at 

French. That person demanded to know the location of French's safe; he pushed French 

to the floor and pointed the gun at French's head. That person again asked about the 

location of the safe and pistol-whipped the right side of French's face. French opened the 

safe and the person stated, " 'Grab everything you can.' " 

Carlos Guerrero testified that in July 2008, he was a police officer with the City of 

Campbell. On the night of the Jones Way robbery, Officer Guerrero interviewed 

Gabriella Vasquez. Gabriella indicated that she was scared to talk with him because her 

cousin was one of the suspects and she did not want to be a snitch. She indicated that her 

cousin and the people he hung out with were gang members.

Gabriella told Officer Guerrero that she had seen her cousin, defendant Rodriguez, 

passing by her house and then standing with others in the driveway of her next-door 

neighbor. She thought it was a group of about five people. In addition to defendant 

Rodriguez, she had described a male with a braided ponytail and an otherwise shaved 

head, a white male with curly hair and glasses, a Hispanic female about 17 or 18 years 

old, and an older, stocky Mexican male wearing a white Raiders jersey. She said that she 

saw the male with the braided ponytail and the male with the curly hair and glasses enter 

her next door neighbor's backyard and then come out after a very short time. The group 

began moving back toward her house. Defendant Rodriquez broke off from the group, he 

went to her front door, and he spoke to her very briefly. The rest of the group entered a 

black vehicle parked to the side of her house on the corner of Smith and Jones. The black 

car drove into the court on Jones Way and circled to the front of her house and yelled for 

defendant Rodriguez. He told Gabriella that he had to go, went to the car, and got into its 

back seat. Gabriella described the driver as having a light complexion, glasses, and curly 

brown hair. He had a tattoo on his upper chest and possibly on his right forearm. She 
19

told the officer that he looked "like a nerd" and the other males looked like gang 

members.

Officer Guerrero was told by Gabriella that, about 30 minutes later, she again saw 

a black vehicle. She heard the vehicle's driver say, "Cap that fool." She heard a gunshot.

A short time after the robbery, most likely the next day, Officer Guerrero 

interviewed R.B. R.B. and Moneyhun were together when Officer Guerrero picked them 

up at Michelle Stojkovic's house on the day after the robbery. The officer was under the 

impression they had a close relationship.

R.B. said that, on July 23, while he was at Michelle Stojkovic's house, there was 

talk about robbing someone who lived off Virginia. The intersection of Jones Way and 

Smith is approximately a half block off Virginia. R.B. indicated to him that Moneyhun 

and he were merely smoking and listening to the discussion. He thought J-Dog was there 

and Mark and J-Dog were "the main leaders of the conversation." R.B. did not tell the 

officer that it was Moneyhun's idea to target French.

The officer testified that R.B. had reported that Mark and J-Dog talked about 

being desperate for money and drugs. Mark had said they needed some stolen cars to do 

the robbery. R.B. believed that two cars were going to be used in the robbery; he heard 

that Peanut from SJU was "the person who was going to come up with the cars." R.B.

indicated there was an exchange in which Michelle said that she wanted to be involved 

but Mark told Michelle that she could not be involved in the robbery. Mark had a 

ponytail at the back of his otherwise shaven head, which R.B. referred to as a "chongo," 

which is Spanish for ponytail.

According to Officer Guerrero, R.B. indicated that he did not participate in the 

robbery because the proposed victim was his marijuana dealer, whom he knew 

personally, and he wanted to buy marijuana from French in the future. He told Officer 

Guerrero that he liked French and knew French had a family. R.B. explained that he did 
20

not warn French because he was afraid of retaliation and he did not want to get involved. 

He later backtracked, claiming that he really did not know French was the target.

R.B. told Officer Guerrero that, after leaving Michelle's house, Moneyhun and he 

had walked to the Campbell light rail station to take the light rail to the Discovery 

Museum. R.B. informed the officer that at 6:06 p.m., after reaching the light rail station, 

he received a call from Gabriella Vasquez and learned of the robbery and the gunshot.

Officer Guerrero showed photographic lineups to a number of individuals. French 

identified a photograph of Michelle Stojkovic as the suspect female and rated his 

certainty as eight or nine on a scale of 10. McBee was not able to identify her. French, 

McBee, and Dowdy did not identify defendant Rodriquez in a photographic lineup 

containing his photograph.

Natalie Gedman testified that she had met a person by the name of Peanut through 

acquaintances and seen him a handful of times before July 22, 2008. In court, Gedman 

identified defendant Hensley as Peanut. One night he came to her house and asked to 

borrow her car and she gave him permission to use it. She claimed her car was gone for 

about 24 hours.

At about 6:45 on July 23, 2008, Gedman received a telephone call from an 

unknown male from a private number telling her that her car would be parked outside. 

She opened the front door and discovered her keys were on a table on the front porch; her 

car was outside. She denied noticing that anything was wrong with her car.

At some point, Campbell police officers came to Gedman's house and asked her if 

she drove a black Lexus. She told them she did. She remembered telling the officers that 

she had lent her car to Peanut. She acknowledged that the police mentioned the license 

plate cover. She denied having any recollection that a coworker had pointed out to her 

that the vehicle's license plate frame was bent. 
21

The following day, an officer returned with a photographic lineup. She looked at 

six photographs and picked out a person whom she said looked like Peanut but his hair 

seemed different.

Tom Rogers testified that he had been a Campbell police officer for 19 years at the 

time of trial. He was the primary investigating officer assigned to the case.

On the night of July 23, 2008, Officer Rogers spoke with Maria Vasquez and 

recorded their conversation. Vasquez reported observing, from inside her house, a 

vehicle pull up. Her nephew defendant Rodriquez came to the door and they talked. 

After leaving her house, defendant Rodriguez had entered a black Lexus vehicle with 

chrome rims and the car had driven away. The vehicle had contained three males and 

one female.

Officer Rogers was told by Vasquez that the vehicle returned about 30 minutes 

later. Two individuals, who Vasquez described as a Hispanic male with a long ponytail 

in the back of his head and a white male, started walking toward 835 Jones Way. 

Looking out from the front doorway, she later noticed them running back toward the 

vehicle with some property. She moved to the window. She saw the two men putting the 

property into the car. Defendant Rodriguez, who had been standing in front of her house, 

ran to the vehicle and got into the rear seat. She saw the male with the ponytail pull out a 

gun and fire one bullet in the direction of Esquibel. Officer Rogers had gone to the 

location and seen where the bullet had struck. It was the officer's impression that 

Vasquez was attempting in good faith to cooperate with the police investigation.

The next day, July 24, 2008, Officer Rogers picked up Esquibel and McBee and 

took them to view Moneyhun at another location where he was being held by detectives. 

During the field showup, Esquibel recognized Moneyhun and said, "That's Ghost." He 

said Moneyhun was not present during the robbery but Moneyhun had been at French's 

house a few days earlier. McBee did not recognize Moneyhun.
22

At about 4 o'clock on July 24, 2008, Officer Rogers showed a photographic lineup 

containing a photograph of defendant Zavala to Esquibel. Esquibel identified defendant 

Zavala as the person who had shot at him.

The next day, July 25, 2008, Officer Rogers contacted French at another person's 

house. French would not come out to the living room; he was in a back bedroom with the 

light turned off. The officer went to the bedroom and was able to convince French to turn 

on the light so they could talk. French explained that "he was scared for his life and he 

didn't want to stay home." French said that a death threat had been left in his cell phone's 

voice mail: "You're dead. We're coming after you."

Officer Rogers showed French the same lineup containing defendant Zavala's 

photograph. French stopped at defendant Zavala's photograph and said, "I think that's 

him. The face looks the same." French identified him as the person who entered his 

garage and pointed a gun at him.

Officer Rogers learned from speaking to other officers and witnesses that French 

was a marijuana dealer and he was known to have safes in his garage.

On July 29, 2008, Officer Rogers showed a photographic lineup containing a 

photograph of defendant Hensley to McBee. McBee made a positive identification of 

Hensley.

Officer Rogers also showed a photographic lineup containing a photograph of 

defendant Hensley to Esquibel, but he was unable to identify the defendant. Officer 

Roger also showed a photographic lineup containing a photograph of defendant 

Rodriguez to Esquibel but Esquibel did not identify anyone.

At some point, Officer Rogers spoke to Michelle Stojkovic, who admitted to him 

that she went to French's house. She gave an innocent explanation for her presence. She 

said that she did not know anything about a proposed robbery.
23

Officer Rogers testified that defendant Hensley was arrested late on July 31, 2008 

or in the early morning hours of August 1, 2008. The officer learned that defendant 

Zavala had surrendered to the Campbell Police Department on the morning of August 1, 

2008.

On August 6, 2008, Officer Rogers showed French a lineup containing a 

photograph of defendant Hensley. French was unable to make an identification.

Officer Rogers also questioned Dowdy that day. McBee had shared his suspicion 

that Dowdy had been involved with the robbery because Dowdy told McBee that he was 

not identifying people whom he recognized in lineups because those people would be his 

"homies" if he "went away." When confronted, Dowdy told Officer Rogers that he was 

not going to snitch because that would be a death sentence for him in prison. Dowdy said 

he did not want anything to do with the case.

In the course of the investigation, Officer Rogers received information that the 

suspect vehicle, a black Lexus with chrome rims, may belong to defendant Hensley's 

girlfriend who lived off Branham Lane near Camden Avenue. On August 6, 2008,

Officer Rogers located a black Lexus in that neighborhood in a carport; he noted that its 

rear license plate was bent up. The officer ran a registration check on the vehicle and 

obtained the name and address of the person to whom the vehicle was registered. Officer 

Rogers went to the particular unit and Gedman answered the door. Gedman's boyfriend, 

to whom the vehicle was registered, was already in custody and she was driving the car. 

She denied knowing the suspects and denied loaning her car to anyone.

The next day, officers conducted a probation search of Gedman's apartment. This 

time, Gedman told Officer Rogers that she had loaned the vehicle to Peanut on July 22 

and then received a phone call about the vehicle at about 6:45 on July 23. A coworker 

had pointed out the bent license plate to her. Officer Rogers and another detective 
24

searched the vehicle. Dowdy's DMV medical examiner's certificate was found between 

the center console and the passenger seat.

Under the authority of a search warrant, Officer Rogers examined text messages 

sent from defendant Hensley's cell phone. A message sent at approximately 4:04 p.m. on 

July 22, 2008, said, "[K]eep this to yourself, but I'm pushing against Northern Riders. 

Two hella fools tried to claim the title but they don't want to live the life." Several 

minutes later, he sent the message: "I got my own squad called WAR, Warriors and 

Riders, and we don't accept PCs, period, no rats, no pussies." At approximately 11:20 

p.m. on July 22, 2008, defendant Hensley sent the message: "I got my Lexo and I'm 

mobile, solo. Can we meet?"

Dan Livingston, a sergeant with the City of Campbell, whom the court recognized 

as an expert with respect to Norteno criminal street gangs and street gangs in general, 

provided background information on the Nuestra Familia (NF) and Nortenos. Norteno 

street gangs emulate the NF and identify with the color red, the number 14, and the letter 

"N." Sureno street gangs identify with the color blue, the number 13, and the letter "M" 

for Mexican Mafia, which is basically their parent group. The Nortenos war with the 

Surenos on the streets.

Sergeant Livingston testified that the Shalu Gardens (SLG) gang has 

approximately 20 members, is an ongoing organization, and associates with northerners 

and it shares their common signs and symbols. The focal area of the gang is the 

"Nido/Adler area of Campbell off Winchester." The gang claims the City of Campbell as 

their territory and it had committed assaults throughout the city. When asked about the

primary activities of the gang, the sergeant indicated that the gang had been involved in 

the sale of marijuana and methamphetamine, assault with a deadly weapon, auto theft, 

and robbery. His opinion about the gang's primary activities was based on prior arrests 
25

and investigations, conversations with crime victims and witnesses, and criminal histories 

of active members of the gang.

Sergeant Livingston estimated that he personally had been in contact with at least 

10 separate Shalu Garden gang members. He identified those persons as gang members 

based on their tattoos, talking with them, observing their associates, and talking with 

victims and community members.

In Sergeant Livingston's opinion, the robbery was committed for the benefit of, at 

the direction of, and in association with the Shalu Gardens criminal street gang. That 

opinion was based on his review of the facts of the case, including the persons present at 

the planning stage, those "people who assisted along the way," and the manner in which 

the crime had been planned and carried out. The sergeant indicated that his opinion 

partially rested on the fact that the two primary people planning the crime, defendants 

Zavala and Rodriguez, were influential members of the Shalu Garden gang. This 

information was based upon "prior contacts, speaking with other people, reviewing police 

reports."

In his opinion, everybody else present during the planning stage was either a 

Norteno gang member or an associate. He believed that R.B. associated with Norteno 

gangs, Moneyhun was a Norteno gang member, Michelle Stojkovic was a Norteno gang 

associate.

Sergeant Livingston testified about two "pattern" offenses, one occurring on 

March 21, 2008 and another occurring on June 5, 2007. Certified copies of two 

conviction packages were admitted into evidence.

The March 21, 2008 offense was an assault involving four suspects at an 

elementary school. The victim was chased by the suspects and one of the suspects yelled, 

"Shalu," during the assault. Sergeant Livingston indicated that shouting out the name of 

one's gang during commission of a crime credits the gang, intimidates and scares the 
26

victim, and earns the gang and its member respect in the gang community. A gang 

member gains credibility through assaulting people, committing certain crimes, engaging 

in displays of violence and having lots of money from drug sales.

The June 5, 2007 crime involved three males in a car that approached a male 

walking in the area of 238 Curtner. Two men got out of the car. One of them, Rigoberto 

Patino, an SLG member, struck the male victim with a cane or stick and the other man 

called the victim a "scrap," a derogatory term for a Sureno gang member. When the 

victim tried to get away, the car ran over him and he was injured.

The sergeant explained that anyone who cooperates with police risks being labeled 

a snitch and being physically assaulted or worse. A community member that reports 

gang crimes may be terrorized or harassed by gang members. 

In reaching his opinion that the crime was for the benefit of a criminal street gang, 

Sergeant Livingston also took into consideration the fact that they called on members of 

the Norteno San Jose Unidos to provide transportation for the robbery. He explained that 

"[o]ftentimes Norteno gangs will commit crimes with other Norteno gangs" and "tend to 

associate with each other, based on going into custody, family relationships, [and] going 

to school." The sergeant also considered the statement that was made during planning, "I 

have no problem shooting somebody if I need to." He stated a person is "not going to 

garner much respect in the gang community" if the person is "squeamish about using a 

gun . . . ."

The sergeant's opinion was also buttressed by the fact the target of the robbery was 

a drug dealer. Gangs are involved with the sale of controlled substances and oftentimes 

know who is holding quantities of drugs. A targeted drug dealer is less likely to call or 

cooperate with police because the victim is himself committing a crime and because the 

victim may fear the gang members.
27

With respect to defendant Rodriguez's gang affiliation, Sergeant Livingston 

testified that defendant Rodriguez has four dots tattooed across the knuckles of his left 

hand. Defendant Rodriguez's moniker or street name, which is J-Dog, is tattooed on his 

right arm. The defendant "has an 'S' on his right forearm and a 'J' on his left, which 

stands for San Jose." The sergeant viewed the defendant Rodriguez's "MySpace" page 

and saw a photo of defendant with other gang members in which the defendant is holding 

up a "W" with his fingers, which indicates West Side San Jose. There was also a picture 

of him with Camilo Parra, an SLG member, who is holding up a "W" with his right hand. 

Defendant Rodriguez's "MySpace" page features the "gangster's prayer" on a red 

background. In the "about me" space, he talked "about the gang lifestyle and the 

Nido/Adler area." There is a picture of a handgun with several rounds of ammunition 

next to it and another picture of a bag of marijuana with the caption, "The more you 

smoke, the more . . . I make."

Sergeant Livingston testified to a number of incidents indicating gang 

membership. On March 25, 2002, the San Jose Police Department became involved in an 

incident reportedly involving defendant Rodriguez. Defendant Rodriguez and another 

male had fought. Four days earlier, defendant Rodriguez challenged the male to fight 

after approaching and asking him what gang he was in and telling him that he, defendant 

Rodriguez, was in the West Side Mob. The West Side Mob is one of the larger Norteno 

gangs on the west side of San Jose.

In another reported incident, which occurred September 13, 2003, defendant 

Rodriguez, who at that time had the four dots tattooed on his knuckles and his moniker 

tattooed on his arm and was wearing a red shirt, attacked a Sureno affiliate and punched 

and kicked him. An hour earlier, defendant Rodrieguez had called the victim a "scrapa," 

a derogatory term for a Sureno. The San Jose Police Department report described 

defendant Rodriguez as "a known affiliate with a Norteno gang."
28

During a January 25, 2004 contact between defendant Rodriguez and the San Jose 

Police Department, the defendant had a steak knife concealed in a pocket and a red rag in 

his rear pocket, and he claimed to be a Norteno. Defendant Rodriguez had explained that 

the knife was for his protection and "it's a rough neighborhood."

After a gang-related fight at Prospect High School on March 31, 2004, a vehicle in 

which defendant Rodriguez was a passenger was stopped by the San Jose police. When 

defendant Rodriguez was contacted, he indicated his Norteno gang affiliation. The driver 

was arrested for bringing a knife onto campus.

On August 19, 2005, defendant Rodriguez was contacted by Campbell police in 

the area of Nido and Adler behind 620 Nello, where defendant Zavala lived in unit one 

and Rigoberto Patino lived in unit four. In his pockets, defendant Rodriguez had a knife 

wrapped in a red bandana, a steak knife, and two large rocks. The previous night there 

had been a large fight in that vicinity involving the discharge of a gun. Officers had 

found a black SJ hat, a San Jose Sharks hat, and a bat in the street. Norteno gang 

members identify with the San Jose Sharks hockey team.

On November 19, 2005, the Campbell police received a report of a disturbance at 

a large apartment complex on Nido in the area of Nido and Adler and a complaint that the 

manager was being harassed by a large group. Officers, including Sergeant Livingston, 

responded. A large group walking away from the location was contacted. Some were 

dressed in gang clothing. Defendant Rodriguez was wearing a red jersey and a red and 

black Huelga bird hat; the Huelga bird is a common sign of Nortenos. He had a 

motorcycle chain. Defendant Rodriguez's brother was wearing a red shirt under a red 

sweatshirt. Defendant Zavala was wearing a San Jose Sharks jersey. Victor Hernandez, 

a known SLG member, had a red bandana hanging out of his pocket. Ronald Delgado, a 

known SLG member, was wearing a black and white SL hat for Shalu and other members 

were either wearing red or black and white. Shalu members wear black and white when 
29

they do not want to draw a lot of attention to themselves. Sergeant Livingston spoke to 

Robert Denavario, a known SLG associate, who said all males with him were SLG 

members. A minor female, who said she was a relative of Victor Hernandez, also said all 

males in the group were SLG members.

On December 16, 2005, Sergeant Livingston assisted in a probation search at 620 

Nello, unit two. Defendant Rodriguez was there as well as the probationer. In a room 

containing items associated with defendant Rodriguez, Sergeant Livingston found a 

backpack with XIV written on the bottom and a Huelga bird. Inside the backpack, the 

sergeant found a CD with XIV and SLG written on it. In the closet, he found a shoe box 

containing SLG indicia and mail and other items with defendant Rodriguez's name on 

them. Marijuana packaged for sale was discovered in the backpack. While the search 

was being conducted, defendant Zavala, Rigoberto Patino, and a third male attempted to 

intimidate the officers and were confrontational. Sergeant Livingston later received a 

notarized letter from defendant Rodriguez claiming the marijuana and backpack were his.

On July 24, 2008, during a classification interview, defendant Rodriguez admitted 

northern affiliation.

In an August 20, 2008 letter written to his estranged wife, defendant Rodriguez 

referred to himself as a "mother fucking solider at heart." Sergeant Livingston explained 

that gang members, and Nortenos in particular, often describe themselves as soldiers. 

The letter also indicated that a certain man would "get handled" if he continued to 

disrespect the defendant's mother and son and that his estranged wife could tell that man 

that he was not going to have to deal with only the defendant. According to the sergeant, 

this meant that the person would have to deal with somebody from the gangs.

With regard to defendant Hensley's gang affiliation, Sergeant Livingston's 

information came from four former male gang members who had dropped out. One had 

been a high ranking NF member and three were former members of Nuestra Raza. Three 
30

of the men had pending cases and were hoping to receive a lesser sentence by working 

with the sergeant; the fourth man, Mr. Lastra, had no pending case and was out of 

custody.

Sergeant Livingston had learned that defendant Hensley formerly was a member 

of Nuestra Rasa, which is an arm of the NF, but he had left that organization and joined 

with the Northern Riders, a group forced out of the NF organization. A solid star on the 

left side of the head signifies membership in Nuestra Raza. The sergeant testified that 

defendant Hensley has a broken star on the right side of his forehead, which expresses 

disrespect for the NF organization. The defendant also has "W-A-R" tattooed on his 

neck. Mr. Lastra had told Sergeant Livingston that defendant Hensley claimed to be 

starting a new group called Warriors and Riders, which explained the significance of the 

"W-A-R" tattoo. Defendant Hensley's street name was Peanut.

In a 2002 police report, defendant Hensley was identified as a Norteno gang 

member by his ex-girlfriend's mother. At that time, the women were being harassed and 

were in fear for their safety because of defendant Hensley's gang association. 

In 2007, defendant Hensley was directed to commit an assault at the direction of 

the Northern Riders because he had disrespected some members and, if he did not do so, 

defendant Hensley would be assaulted by an unknown Northern Rider. Sergeant 

Livingston testified about text messages that he believed had been sent by defendant 

Hensley. One message indicated to the sergeant that defendant Hensley was breaking 

away from the Northern Riders. Another text message stated, "I got my own squad called 

WAR, Warriors and Riders. And we don't accept PCs, period, no rats, no pussies." The 

sergeant explained that "PCs" refers to persons who have dropped out of a gang and are 

in protective custody.

As to defendant Zavala's membership in a gang, Sergeant Livingston stated that 

defendant Zavala has "SJ" tattooed on the back of his arms and "408," which is the area 
31

code, tattooed across this stomach. Defendant Zavala also has a tattoo, which reads, "If I 

die today, no worries tomorrow." The sergeant explained that this tattoo reflects the 

mindset of a lot of gang members, who tend to live on the edge and believe if something 

happens to them, it is just part of "the game."

A police report indicated that on November 4, 2005 a police officer made contact 

with a person wearing a red shirt on Adler Avenue. The self-identified Norteno told the 

officer that he had been "jumped in behind 620 Nello at Mark Zavala's direction by an 

associate . . . ." The gang member identified defendant Zavala "as running Shalu Gardens 

at that time."

On March 15, 2006, a search of defendant Zavala's residence, located at 620 

Nello, unit one, was conducted by Sergeant Livingston pursuant to a warrant. The search 

uncovered gang indicia. Scribblings of "Shalu," "SLG," and similar terms and handgun 

ammunition were found in his room. In the garage, the sergeant found SLG graffiti and 

monikers carved into a bench.

On June 20, 2006, defendant Zavala was contacted at 240 Adler after police 

received a call reporting four males fighting and "somebody shouting something about a 

Shalu gang."

On November 24, 2006, defendant Zavala was contacted near 2369 South 

Winchester after a disturbance at a bar and the bouncer had asked certain people to leave. 

He was with Camilo Parra, whom the sergeant identified as an SLG member. Also, on 

November 24, 2006, a man flagged down police officers on Adler Avenue and he told 

them that three males, including defendant Zavala and Parra, had threatened him. Parra 

had said, "This is the north side. We run this area."

On April 3, 2008, defendant Zavala and Victor Hernandez were seen walking 

together through a Safeway parking lot in the area of Nido and Adler. Zavala was 

wearing a red and white hat with "San Jose" printed on it.
32

On July 20, 2008, a San Jose police officer in the area of Lick and Alma advised 

other officers that "multiple car loads" of Nortenos were in the area looking to jump 

somebody. Another officer stopped a vehicle leaving the area; defendant Zavala was a 

passenger. Two other occupants in the vehicle had "NGN" tattoos, which stands for 

"Next Generation Nortenos," and were on probation with gang conditions. The vehicle 

contained a metal wrench and stakes, which the reporting officer believed were weapons.

On cross-examination, Sergeant Livingston explained the police's use of field 

interview cards, which was one way of gathering information, including observations of 

tattoos and admissions of gang membership. In reviewing the material on defendant 

Zavala's past contacts with the Campbell Police Department, the sergeant had never 

found any reference to him being known by the moniker "Little Savage" or "Li'l Savage" 

aside from what R.B. had told police. 

According to Sergeant Livingston, the SLG has been around Campbell since 2001 

and the gang was formed by Camilo Parra. The sergeant stated that one of the primary 

purposes of the Shalu Gardens gang is robbery and at least three members had robbery 

convictions. He admitted that he had previously testified in March 2010, shortly before 

trial, that the SLG had not committed any robberies of which he was aware but he had 

also given the qualification that he would have to check the files. The sergeant believed 

that he had then explained that he had been belatedly brought into the case and he had not 

yet reviewed all the material. He acknowledged that the three robbers were juveniles at 

the time of the crimes. None of those robberies had been committed by defendant 

Rodriguez or Zavala.

Sergeant Livingston acknowledged that the original summary of Shalu Garden's 

predicate offenses, which he had written in about late 2005, did not list any robberies. 

Another summary of predicate offenses included six offenses committed on various dates 

through March 21, 2008 but it did not include any robberies. Defendant Zavala was not 
33

named as a suspect or participant in those offenses. Insofar as the sergeant was aware, 

defendant Zavala had never been previously charged or convicted of robbery or any 

felony. Sergeant Livingston acknowledged that defendant Zavala did not have gang 

tattoos identifying him as a member of the SLG and that the police reports in this case 

that he reviewed did not indicate that any perpetrator identified himself as a Norteno or 

SLG member during the robbery.

On redirect examination, Sergeant Livingston stated that he had a conversation 

with defendant Hensley while he was in custody because the defendant had wanted to 

offer information in exchange for assistance in this case. Even though the sergeant 

specifically informed defendant Hensley that he did not want to talk about the specific 

facts of the present case, defendant Hensley told Sergeant Livingston that he was present 

during the crime.

Sergeant Livingston also testified regarding his 2005 encounter, while on patrol, 

with defendant Zavala and another man across from the defendant's house on Nello. 

Sergeant Livingston had spoken separately to the other man, who told the sergeant that he 

was a former NF member and was currently part of "New Flowers," a group of dropouts 

from the NF organization. The man asked the sergeant not to tell defendant Zavala 

because Zavala was still active in NF and "he knew what Mr. Zavala would do to him if 

[Zavala] found out he was a dropout gang member."

Sergeant Livingston reiterated that the present crime, which he characterized as 

brazen, assisted the gang because it increased its status and provided drugs and property 

that could be sold. The money could be used to buy guns to protect the gang and to buy 

alcohol and marijuana to entice others into the gang.

On further cross-examination, Sergeant Livingston confirmed that he had done 

nothing with the information obtained from defendant Hensley until he was called as an 

expert in this case.
34

On further redirect examination, the sergeant indicated that he does not document 

a conversation with an inmate who is offering information in exchange for help in a 

criminal case. He explained that officers try not to break the trust of the inmates willing 

to provide information to law enforcement since inmates would be less inclined to 

cooperate if they learned another inmate's statement had been used against him.

Janet Lacava testified that she knew defendant Zavala and had worked with him at 

the Safeway on Winchester in Campbell for a couple of years until he was transferred to 

another Safeway about the beginning of April 2008. When she knew him, he had a 

ponytail, which was approximately six to eight inches long. She identified him in court.

David Carmichael, a police captain with the Campbell Police Department, 

photographed defendant Zavala following his arrest on August 1, 2008. Zavala's hair was 

cut "really short" and he did not have a ponytail. Captain Carmichael identified 

photographs of defendant Zavala's tattoos. His left arm has a tattooed "S" and his right 

arm has a tattooed "J." "408" is tattooed on his abdomen. The tattoo on his upper chest 

reads, "If I die today, no worries tomorrow."

B. Defendant Zavala's Evidence

Raj Jayadev, the executive director of Silicon Valley Debug, a community 

organization that provides assistance to families and youth, testified that the organization 

was contacted in late July 2008 by defendant Zavala's family who was seeking assistance 

in helping defendant Zavala turn himself in. Jayadev met with defendant Zavala and, at 

trial, he identified defendant Zavala in court. Jayadev and Aram James, an attorney that 

volunteered for the organization, drove with defendant Zavala by car to the Campbell 

Police Station. Jayadev sat in the rear passenger seat directly behind defendant Zavala, 

who sat in the front passenger seat. Defendant Zavala's hair was "short-cropped" and 

Jayadev did not see anything to distinguish any part of the back of Zavala's head from the 

rest of his haircut.
35

Tiffany Shelton testified that she began dating defendant Zavala when he was 17 

years old and she was 20 or 21 years old and she already had a son. Her son turned one 

while they were together and they later had a daughter.

Shelton was 25 years old at the time of trial. She identified defendant Rodriguez 

in the court room and indicated he was a friend of defendant Zavala. She had heard 

defendant Rodriguez called J-Dog.

Defendant Zavala and Shelton began living together in his mother's Campbell 

home in 2005 and they moved into their own apartment in 2006. He started wearing his 

hair in a ponytail after the birth of their daughter in August 2007. 

During the last week in January 2008, Shelton asked him to leave because he had 

been seeing someone else and lied to her about it. At that time, defendant Zavala was 

still wearing his hair in a "Mongolian," which was a ponytail at the back of his head and 

otherwise "bald."

After Zavala moved out in January 2008, Shelton continued to see defendant 

Zavala and he regularly visited the children two or three times a week. Defendant Zavala 

continued to contribute to her expenses and gave her $500 a month for rent.

According to Shelton, she discovered that defendant Zavala was no longer wearing 

his hair in a ponytail on July 5, 2008 when she was picking up her children from his 

sister's house and saw him. 

Shelton testified that, on the afternoon of July 23, 2008, she got off work around 2 

p.m., and then picked up both of her children, then about 11 months old and four years 

old, from daycare. Around 3:30 or 4 p.m., she met defendant Zavala at his cousin Eric's 

home in east San Jose. Defendant Zavala did not have a ponytail at that time. Defendant 

Zavala and she went to a bedroom and had sex. Her children stayed with Eric, his friend, 

and two or three of Eric's children; the children were in a little pool. Defendant Zavala's 

mother also came to Eric's house but Shelton did not speak with her. Shelton left with 
36

her son when it was starting to get dark; defendant Zavala and their daughter did not go 

with her. According to Shelton, she returned the next morning to pick up her daughter 

and take her to school.

Shelton testified that defendant Zavala lost his Safeway job in about the middle of 

July 2008 and she learned about it approximately a week later. 

Shelton was aware that defendant Zavala had turned himself in to the Campbell 

Police Department on or about August 1, 2008. She had dropped defendant Zavala off at 

the downtown office of Silicon Valley Debug. Since defendant Zavala had turned 

himself in, his family had been helping Shelton with her children, including watching 

them and picking them up from school when needed. She agreed that her life was going 

to be a lot tougher financially without the $500 contribution from defendant Zavala.

Shelton said that, after defendant Zavala surrendered, she read a newspaper article 

about the incident that mentioned the date July 23, 2008. According to Shelton, she

realized that was the date on which she had seen defendant Zavala.

Shelton denied calling the Campbell Police Department to find out the charges or 

the date of the charged offense. She indicated that she had called the county jail to find 

out about the case. Shelton admitted that she had purchased and reviewed the police 

reports in this case. But Shelton denied reading them before giving a statement that 

defendant Zavala and she were together on July 23, 2008.

Shelton conceded that she never called the Campbell Police Department to say that 

they had the "wrong guy." She acknowledged that she knew the location of the police 

department. She visited defendant Zavala twice a week while he was in custody. 

According to Shelton, she told Mr. Braun, defendant Zavala's trial counsel, and his 

investigator that she had not given the information that she had been with Zavala at the 

time of the robbery to the police because of her many negative experiences with the 
37

Campbell Police Department. She claimed to have given that information to defendant 

Zavala's first attorney.

Shelton had attended the preliminary hearing in April 2009. Shelton conceded 

that the first time anyone who was in the courtroom at trial heard that she was with the 

defendant at the time of the robbery was October 2009. Her 2010 trial testimony was the 

first time that she had told anyone in the judicial system that an innocent man was being 

prosecuted.

The parties stipulated that if Detective Rogers were recalled as a witness, he would 

testify that, when he showed the photographic lineup containing defendant Zavala's 

picture to witnesses, Detective Rogers knew that defendant Zavala was the suspect.

Dr. Robert Shomer, an experimental psychologist, was qualified as an expert 

regarding the "psychological factors that go into human perception and eyewitness 

identification." He indicated that under the best of circumstances, an eyewitness 

identification is far less accurate than fingerprints, DNA, or blood samples. He described 

a number of studies. There were studies showing that misidentifications had occurred in 

criminal cases. He discussed the nature of perception and the factors that affect 

perception. Eyewitness identification can be very inaccurate.

Dr. Shomer indicated that a person's perception changes when a gun is being 

pointed at him. Research has shown that people are significantly less accurate about the 

face of a person wielding a weapon than the face of a person holding a pen or something 

innocuous.

According to Dr. Shomer, after 24 hours, the accuracy of remembered perceptions 

of a crime scene declines very steeply. Live lineups are far more accurate than 

photographic lineups because a witness sees the whole body in three dimensions.

Dr. Shomer stated that, in general, showing photographs of suspects one by one is 

more accurate than showing photographs all at the same time. An exception to this 
38

general rule occurs when the administrating officer is aware which photograph shows the 

suspect. In that circumstance, an officer is less likely to inadvertently influence the 

outcome if all the photographs are presented at the same time because the officer has 

difficulty knowing where the viewer is looking. The worst procedure is where the officer 

presenting the photographs knows the suspect's photograph and can tell which 

photograph is being examined. A change in the administrating officer's posture, an intake 

of breath, a focus of attention, or any verbal comment may inadvertently influence an 

identification. Ideally, the officer presenting the photographs should not know which 

photograph shows the suspect in the case.

Two criteria were important for assembling a photographic lineup. First, every 

photograph should match the initial description to the same extent. Second, no photo 

should stick out like a sore thumb. 

Dr. Shomer had an opportunity to view the photographic array for defendant 

Zavala. He criticized the lineup because only one photograph showed an open-mouth 

smile and teeth and the remaining photographs showed closed mouths and the person 

with the darkest complexion had the open-mouth smile. If the suspect was described as a 

Hispanic male with a dark complexion, only two photos met that description. If the 

suspect's description was a Hispanic male with a dark complexion and very short hair 

except for a ponytail, only one photo met that description. The other photograph of a 

dark-skinned male depicted a man who looked Persian, had very long hair, and very 

distinct chin hair.

Dr. Shomer judged the Campbell Police Department admonition given to 

witnesses before viewing a photo lineup to be "[p]retty good."

C. Defendant Henley's Evidence

Defendant Hensley testified in his own behalf. In July 2008, defendant Hensley 

was using drugs on a daily basis. At the time of the robbery, he was "tweaked out on 
39

methamphetamine" and he did not think he would have committed the robbery otherwise. 

But he admitted that he knew he was committing robbery.

According to Hensley, on July 22, 2008, he borrowed a black Lexus from 

Gedman. He then contacted Smiley. He believed that his text message regarding a black 

Lexus, to which Sergeant Rogers had testified, had been sent to Smiley. 

Defendant Hensley testified that, on July 23, 2008, defendant Hensley and Smiley 

drove their cars, picked up someone named Listo who got into Smiley's car, and 

continued to a 7-Eleven. There, the three of them met Michelle and others. Defendant 

Hensley stated that four or five people got into the Lexus with him. Defendant Zavala, 

whom he did not know, got into the front passenger seat. Defendant Rodriguez, whom 

Hensley did not know, Michelle, whom he knew as "Little One," and one or two others 

got into the back seat. As defendant Hensley continued driving, following Smiley's car, 

there was a conversation about "robbing some white connect" "for some drugs." The cars 

stopped; defendant Hensley got out of the Lexus and met with others. He understood that 

they were going to rob a drug dealer for "dope and money."

Defendant Hensley drove to Jones court and parked on the south corner of Smith 

and Jones behind Smiley. Defendant Hensley stated he did not have a gun; only 

defendant Zavala had a gun.

According to defendant Hensley, everyone in the Lexus got out and all of them, 

except defendant Rodriguez, went to a house on Jones court. They knocked on the door, 

a male opened the door and let them in, and Michelle asked for "Craig." They decided 

they were at the wrong house. They proceeded to the house next door and entered the 

backyard through the gate. Michelle asked for "Craig" and spoke with a female. French 

was standing in the doorway of the garage and said that they had the wrong house. They 

left the backyard.
40

Defendant Hensley went back to the Lexus, backed it into the court, and told 

everyone to get in. Defendant Rodriguez had gone to his family's house to draw their 

attention away. Somebody in the Lexus called for defendant Rodriguez.

Defendant Hensley and Smiley drove their cars to a gas station. There, defendants 

Zavala, Hensley, and Rodriguez and Michelle, Smiley and Listo made a plan to go back 

to the house and "rob the connects for everything they had . . . ." Eventually, defendants 

Zavala, Hensley, and Rodriguez headed back to Jones. Defendant Rodriguez stayed on 

the corner to look out for people coming to "make a drug transaction"; defendants Zavala 

and Hensley returned to the targeted residence on Jones court.

Defendant Hensley described the crime. Defendant Zavala entered the garage first 

and said, "Get the fuck on the ground." People were already getting down as defendant 

Hensley entered. Defendant Zavala said to French, who was not yet on the ground, 

"[W]here the fuck's the safe's at?" Defendant Hensley said, "Get on the ground."

At first, French acted as though there was no safe. French eventually "kind of 

crawled" toward the safe and opened it; defendant Zavala was with French. Defendant 

Hensley denied putting a knee on anyone's back. Defendant Zavala demanded a second 

safe and told French, " 'I'm going to blast you. Where's the fucking safe at?' " He put the 

gun's barrel on French. Defendant Hensley may have said, "Take everything you touch." 

Defendant Hensley did go through the victims' pockets. He indicated to defendant 

Zavala that it was time to go.

Defendant Hensley grabbed two guitars on the way out and defendant Zavala was 

carrying a duffle bag. They headed quickly toward the car. A man appeared and tried to 

grab a guitar from defendant Hensley, saying something to the effect, " 'What are you 

doing with my friend's shit?' " Defendant Hensley was telling him, " 'Back the fuck up. 

Just back the fuck up.' " Defendant Hensley heard the male yell, " 'Get the license plate 

number.' " Defendant Hensley handed one guitar to defendant Rodriguez and, with a free 
41

hand, he bent the license plate up so it could not be read. Defendant Hensley threw the 

guitar into the back seat of the Lexus and jumped in.

Defendant Rodriguez was in the back seat and Defendant Zavala was in the front 

passenger seat. Defendant Hensley yelled out to defendant Zavala, " 'Blast that mother 

fucker.' " Defendant Zavala leaned out the window and told the man to back up or he 

was going to blast him. Defendant Zavala fired a shot and defendant Hensley thought the 

man had been hit and he drove away.

Defendant Hensley stopped the car, got out, bent the license plate down, and then 

continued driving. He told defendant Rodriguez to lie down so the car appeared to have 

only two occupants. Eventually, the three went their separate ways.

At trial, defendant Hensley identified defendants Zavala and Rodriguez in the 

courtroom. Defendant Zavala previously had a Mongolian hair style, which is "a short 

haircut with a big ponytail." 

Defendant Hensley explained that the broken star tattoo on his forehead meant 

"[b]reaking free from oppression." He affirmed that the broken star was a symbol of the 

Northern Riders, which is considered to be a gang by law enforcement and the state 

prison system. Defendant Hensley viewed Northern Riders as a movement, not a gang. 

Northern Riders would say that leaders in NF oppress the underlings in their 

organization. Northern Riders are opposed to the philosophies of NF and Nuestra Raza. 

He identified Aaron and Sean, the names tattooed on his wrists, as his blood brothers. 

The tattoo "Sicilian" refers to his mother's side of the family. The tattoo "WAR" on his 

neck was an incomplete tattoo of the word "warrior." Members of Northern Riders 

consider themselves to be warriors. NF or Nuestra Raza members consider themselves to 

be soldiers. Soldiers take orders while "[w]arriors do what they feel is right." Nortenos 

and Northern Riders are enemies. 
42

Defendant Hensley admitted sending the text messages about pushing against 

Northern Riders and WAR. He indicated that he was separating himself from the 

Northern Riders. Defendant Hensley acknowledged saying in the text that he had his 

"own squad called WAR, Warriors and Riders" but he claimed that at the time he sent the 

text he was by himself.

Defendant Hensley asserted that he participated in the July 23, 2008 robbery to 

obtain drugs and money for his own benefit. He did not have a gang-related motive and 

he did not commit the robbery for the benefit of, or in association with, gang members. 

He admitted, however, that at the time of the robbery, he knew Smiley, Listo, and 

defendants Zavala and Rodriguez were Nortenos. Smiley had connections with Varrio 

Horse Shoe, a Norteno street gang. Listo was from SJG or San Jose Grande, which is 

another Norteno street gang. Defendant Hensley had to assuage Smiley's and Listo's 

concerns in order to "hang out" with them. Defendant Hensley confirmed that he was 

known as Peanut.

Defendant Hensley acknowledged his prior convictions of felony assault upon a 

peace officer and grand theft. He was testifying in the hope of receiving a lesser sentence 

than he would otherwise. While in custody, he offered to provide information in 

exchange for consideration in this case. Sergeant Dan Livingston had come to see him.

D. Defendant Rodriguez

Defendant Rodriguez presented no evidence.

E. Stipulations

The People and defendant Hensley stipulated that SJU or San Jose Unidos or 

United is a Norteno street gang. They also stipulated that Stephanie French was briefly 

present in the courtroom during the preliminary hearing. The People and defendant 

Zavala stipulated that his last day with Safeway was July 13, 2008. The People and all 

the defendants stipulated that, if Officer Billman were recalled to testify, he would testify 
43

that when he responded to the crime scene on the night of the crime, he spoke to Mitchell 

French and French said that he believed he lost approximately $2,200 from the safe 

during the robbery.

III

Discussion

A. Denial of Motions to Bifurcate Trial

Defendants argue that the court erred in refusing to bifurcate the trial and the 

failure to bifurcate trial denied them a fair trial because the gang evidence was highly 

prejudicial and minimally relevant.6

"On a motion to bifurcate trial of a gang enhancement, a defendant has the burden 

to clearly establish that a unitary trial creates a substantial danger of undue prejudice that 

requires the gang enhancement to be separately tried. (People v. Hernandez (2004) 33 

Cal.4th 1040, 1051.) A denial of such motion is reviewed for abuse of discretion. (See 

id. at pp. 1048-1050.)

The abuse of discretion standard is deferential and "asks in substance whether the 

ruling in question 'falls outside the bounds of reason' under the applicable law and the 

relevant facts [citations]." (People v. Williams (1998) 17 Cal.4th 148, 162.) Our review 

is based on the facts as they appeared at the time of the motion. (Cf. People v. Lewis

(2008) 43 Cal.4th 415, 452 [denial of severance motion is reviewed for abuse of 

discretion based on the facts as they appeared when court ruled].)

In People v. Hernandez, supra, 33 Cal.4th 1040, the California Supreme Court 

recognized that sometimes bifurcation of the trial of guilt and gang enhancements is 

appropriate: "The predicate offenses offered to establish a 'pattern of criminal gang 

 

6 Defendant Hensley also asserts that denial of his motion to bifurcate violated his 

right to an impartial jury but he offers no separate argument on that claim. We address 

only the due process claim. (See People v. Stanley (1995) 10 Cal.4th 764, 793.)
44

activity' (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and 

evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. 

Moreover, some of the other gang evidence, even as it relates to the defendant, may be so 

extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the 

jury to convict regardless of the defendant's actual guilt." (Id. at p. 1049.)

On the other hand, since a "criminal street gang enhancement is attached to the 

charged offense and is, by definition, inextricably intertwined with that offense" (People 

v. Hernandez, supra, 33 Cal.4th at p. 1048), "less need for bifurcation generally exists 

with the gang enhancement than with a prior conviction allegation. (See People v. 

Martin (1994) 23 Cal.App.4th 76, 81.)" (Ibid.) "To the extent the evidence supporting 

the gang enhancement would be admissible at a trial of guilt, any inference of prejudice 

would be dispelled, and bifurcation would not be necessary. (See People v. Balderas

(1985) 41 Cal.3d 144, 171–172 . . . [discussing severance of charged offenses].)" (Id. at 

pp. 1049-1050.)

"Even if some of the evidence offered to prove the gang enhancement would be 

inadmissible at a trial of the substantive crime itself—for example, if some of it might be 

excluded under Evidence Code section 352 as unduly prejudicial when no gang 

enhancement is charged—a court may still deny bifurcation. In the context of severing 

charged offenses, [the Supreme Court has] explained that 'additional factors favor 

joinder. Trial of the counts together ordinarily avoids the increased expenditure of funds 

and judicial resources which may result if the charges were to be tried in two or more

separate trials.' [Citation.]" (Id. at p. 1050.) Although bifurcation is not a perfect analogy 

to severance because "[s]everance of charged offenses is a more inefficient use of judicial 

resources than bifurcation" (ibid.), "a trial court's discretion to deny bifurcation of a 

charged gang enhancement is broader than its discretion to admit gang evidence when the 
45

gang enhancement is not charged. (See People v. Balderas, supra, 41 Cal.3d at p. 173.)" 

(Ibid.)

A defendant's "not guilty" plea generally puts all elements of the charged crime in 

issue for purposes of determining admissibility. (See People v. Daniels (1991) 52 Cal.3d 

815, 858.) "In general, '[t]he People are entitled to "introduce evidence of gang

affiliation and activity where such evidence is relevant to an issue of motive or intent." 

[Citation.]' (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)" (People v. 

McKinnon (2011) 52 Cal.4th 610, 655.)

Defendants did not demonstrate that gang evidence would be irrelevant to issues 

of defendants' motive and intent or witness credibility. (See Evid. Code, §§ 210, 351.) In 

addition, "[t]he rule is without exception that evidence which tends to show preparation 

looking to the commission of a crime, as well as acts and circumstances in pursuance of 

its accomplishment . . . , is admissible against one charged with crime. [¶] So, too, the 

meeting together of persons, prior to the commission of a crime with which they are 

charged, and the circumstances thereof may be relevant to the questions of preparation 

and concert of action, and therefore may be properly brought to the attention of the jury." 

(People v. Arnold (1926) 199 Cal. 471, 492.)

In this case, gang monikers connected defendants Hensley and Rodriguez to the 

crimes. There was evidence that "J-Dog" participated in the planning of the robbery, 

preparations involved contacting the SJU gang to obtain cars, "Peanut" was the person 

who was going get the cars, and defendant Rodriguez's street name was "J-dog" and 

defendant Hensley's street name was "Peanut." There was evidence that defendant 

Rodriguez was wearing a black and white hat or cap while standing on the corner of 

Jones Way and Smith Avenue and those colors are sometimes worn by Shalu Gardens 

gang members. Also, some of the gang evidence was relevant to show why certain 

witnesses were reluctant to testify or gave testimony that was inconsistent with earlier 
46

statements to police. (See Evid. Code, §§ 210, 351.) Defendant Zavala recognizes that 

gang evidence was relevant and admissible "to explain the testimony and conduct of 

prosecution witnesses . . . ." 

As in Hernandez, "defendants did not meet their burden 'to clearly establish that 

there is a substantial danger of prejudice requiring that the charges be separately tried[]' 

. . ." and the trial court "acted within its discretion in denying bifurcation." (People v. 

Hernandez, supra, 33 Cal.4th at p. 1051.) Neither have defendants shown that the failure 

to bifurcate violated due process.

In Spencer v. State of Texas (1967) 385 U.S. 554, the contention was that "the Due 

Process Clause of the Fourteenth Amendment requires the exclusion of prejudicial 

evidence of prior convictions even though limiting instructions are given and even though 

a valid state purpose -- enforcement of the habitual-offender statute -- is served." (Id. at 

p. 563.) The court rejected the argument: "To say that the two-stage jury trial in the 

English-Connecticut style is probably the fairest, as some commentators and courts have 

suggested, and with which we might well agree were the matter before us in a legislative 

or rule-making context, is a far cry from a constitutional determination that this method 

of handling the problem is compelled by the Fourteenth Amendment. Two-part jury 

trials are rare in our jurisprudence; they have never been compelled by this Court as a 

matter of constitutional law, or even as a matter of federal procedure." (Id. at pp. 567-

568, fns. omitted.) It also stated: "Cases in this Court have long proceeded on the 

premise that the Due Process Clause guarantees the fundamental elements of fairness in a 

criminal trial. [Citations.] But it has never been thought that such cases establish this 

Court as a rule-making organ for the promulgation of state rules of criminal procedure." 

(Id. at pp. 563-564.)

The U.S. Supreme Court has also observed: "Beyond the specific guarantees 

enumerated in the Bill of Rights, the Due Process Clause has limited operation. We, 
47

therefore, have defined the category of infractions that violate 'fundamental fairness' very 

narrowly." (Dowling v. U.S. (1990) 493 U.S. 342, 352 [110 S.Ct. 668] [evidence of prior 

crime of which the defendant had been acquitted did not violate due process].) More 

recently, the Supreme Court has stated: "Only when evidence 'is so extremely unfair that 

its admission violates fundamental conceptions of justice,' Dowling v. United States, 493 

U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (internal quotation marks omitted), 

have we imposed a constraint tied to the Due Process Clause. See, e.g., Napue v. Illinois, 

360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (Due process prohibits the 

State's 'knowin[g] use [of] false evidence,' because such use violates 'any concept of 

ordered liberty.')" (Perry v. New Hampshire (2012) ___ U.S. ___, ___ [132 S.Ct. 716, 

723]; see People v. Falsetta (1999) 21 Cal.4th 903, 913 ["The admission of relevant 

evidence will not offend due process unless the evidence is so prejudicial as to render the 

defendant's trial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 70, 112 

S.Ct. 475, 116 L.Ed.2d 385; Spencer v. Texas (1967) 385 U.S. 554, 562–564, 87 S.Ct. 

648, 17 L.Ed.2d 606.)"]; cf. People v. Fuiava (2012) 53 Cal.4th 622, 695-700 [admission 

of evidence of defendant's violent character did not offend due process].)

Further, in this case, the jury was instructed not to conclude from the evidence of 

gang activity that "the defendant is a person of bad character or that he has a disposition 

to commit crime." "We presume that jurors comprehend and accept the court's directions. 

(E.g., People v. Bonin (1988) 46 Cal.3d 659, 699.)" (People v. Mickey (1991) 54 Cal.3d 

612, 689, fn. 17; see People v. Waidla (2000) 22 Cal.4th 690, 725 ["The presumption is 

that limiting instructions are followed by the jury"].)

We are not persuaded that the trial court's refusal to bifurcate trial of the gang 

enhancements "so infused the trial with unfairness as to deny due process of law." 

(Lisenba v. California (1941) 314 U.S. 219, 228 [62 S.Ct. 280].)
48

People v. Albarran (2007) 149 Cal.App.4th 214, on which defendants Hensley and 

Zavala rely to argue that failure to bifurcate resulted in a fundamentally unfair trial, is 

distinguishable. "Albarran filed a motion for a new trial asserting sufficient evidence did 

not support the gang allegations and that admission of irrelevant and prejudicial gang 

evidence warranted a new trial on all charges. The trial court granted the new trial 

motion with respect to the gang allegations based upon insufficiency of the evidence, but 

denied it as to the charged offenses, finding the gang evidence was relevant to issues of 

intent." (Id. at p. 217.) In a split decision, the majority agreed that the gang evidence 

was irrelevant and extremely prejudicial as to the charged offenses and directed the trial 

court to enter a new order granting the defendant's motion for a new trial on all charges 

because the gang evidence was " ' "of such quality as necessarily prevents a fair trial." ' 

[Citation.]" (Id. at pp. 217, 231-232.)

Albarran can be distinguished first because it did not concern a ruling on a pretrial 

motion to bifurcate. Second, unlike the situation in Albarran, defendants have not 

established that the evidence was insufficient to prove the gang enhancement allegations 

or the gang evidence had no legitimate evidentiary purpose.

Defendant Hensley additionally argues that the court's refusal to bifurcate trial 

compelled him "to select a strategy to minimize the damage that the gang charges could 

cause" and to waive his privilege against self incrimination and admit his involvement in 

the crimes but deny the gang allegations. Like many defendants facing a strong 

prosecution case, defendant Hensley was required to decide whether to exercise his 

constitutional right to remain silent or testify in his own behalf. In People v. Caro (1988) 

46 Cal.3d 1035, abrogated on another ground as recognized in People v. Whitt (1990) 51 

Cal.3d 620, 657, fn. 29, the California Supreme Court rejected a defendant's argument 

that "by allowing the introduction of evidence of killings for which he might at some 

future date be tried, the court forced him to surrender his right to testify at penalty phase 
49

in order to preserve his state constitutional privilege against self-incrimination as to the 

uncharged offenses." (Id. at p. 1055.) It stated: "The forced choice of which defendant 

complains is permissible under the federal Constitution. (See McGautha v. California

(1971) 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711.)" (Id. at p. 1056.) The same is true 

here. As "the McGautha court observed: 'The criminal process . . . is replete with 

situations requiring the "making of difficult judgments" as to which course to follow. 

[Citation.] Although a defendant may have a right, even of constitutional dimensions, to 

follow whichever course he chooses, the Constitution does not by that token always 

forbid requiring him to choose.' (402 U.S. at p. 213, 91 S.Ct. at p. 1470.)" (Ibid.)

B. Witness French's Volunteered Statement and Gestures

1. Procedural History

Before French left the witness stand, the court and counsel were made aware of a 

note written by Juror No. 9 indicating that French had been making facial gestures at 

defendants and, at one point, he had faced the jury, shielded his mouth, pointed at 

defendants, and mouthed, "They did it." The note stated that French had also made a 

" 'FU' " finger gesture at defendants.

On further cross-examination at the end of French's testimony, defendant Zavala's 

counsel asked French whether he had said or mouthed anything to the jury or made any 

gestures indicating one or more of the defendants while the attorneys were conferring 

with the judge. French answered, "Nope." 

Following an unreported sidebar conference with counsel and outside the presence 

of witness French, the court ascertained that two jurors (Jurors No. 5 and 9) had seen or 

heard French mouth or make a statement not in response to questioning by counsel and 

three jurors (Jurors No. 2, 3, and 6) had seen some sort of a nonverbal or attempted 

communication by French. The record indicates that the court confirmed that the jurors 

who had heard French say something or had read his lips were Jurors No. 5 and 9 and 
50

asked the deputy to remove the other jurors The court separately spoke with Jurors No. 5 

and 9.

Juror No. 9 confirmed that she had witnessed what she had written in her note. 

The juror indicated that she would not be able to assess French's credibility without 

considering what had been seen and the conduct was coloring her perception of French's 

testimony. The court ultimately excused Juror No. 9.

Juror No. 5 had also seen French point to defendants and mouth, "They did it." 

This juror indicated that she had not seen any other kind of verbal or nonverbal 

communication by French. The juror understood that jurors were the sole judges of 

witness credibility and that testimony constitutes the evidence. The juror affirmed that 

she could put aside what she had seen, she could keep those observations from entering 

into deliberations, and she could judge French's testimony and credibility without 

reference to that conduct. The court told the juror that the matter could not enter into her 

deliberations and could not be discussed with fellow jurors. The court found that there 

was no need to rehabilitate Juror No. 5 because she had not "indicated in any fashion that 

she's prejudiced as a result" of observing French's volunteered statement.

The court refused the request of defendant Zavala's counsel to further question 

Juror No. 5. The court denied the requests of defendants' counsel to remove Juror No. 5.

With regard to the other three jurors, the court determined that it was unnecessary 

to question them and they could consider what they had seen because French's conduct 

constituted demeanor, which was relevant to his credibility. Defendant Zavala's counsel 

asked for Jurors No. 2, 3 and 6 to be excused and moved for mistrial since there would be 

an insufficient number of jurors to continue and because the jury had been "hopelessly" 

infected. The court denied the motion for mistrial.
51

2. Refusal to Discharge Juror No. 5

Defendant Zavala maintains that Juror No. 5's observation of French's volunteered 

communication created a presumption of prejudice that was not rebutted and "the court's 

refusal to dismiss the juror was manifestly erroneous" and impliedly in violation of his 

right to an impartial jury. Defendant Rodriguez argues that the trial court's denial of the 

defendants' request to dismiss Juror No. 5 was error and violated his right to trial by an 

impartial jury. Defendant Rodriguez recognizes, however, that the trial court is the judge 

of credibility. Defendant Hensley also asserts that the court erred in failing to dismiss 

Juror No. 5.

"A defendant accused of a crime has a constitutional right to a trial by unbiased, 

impartial jurors. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; Irvin v. 

Dowd (1961) 366 U.S. 717, 722 [81 S.Ct. 1639, 1642, 6 L.Ed.2d 751]; In re Hitchings

(1993) 6 Cal.4th 97, 110.)" (People v. Nesler (1997) 16 Cal.4th 561, 578 (lead opn. of 

George, C.J.) (Nesler).) "An impartial juror is someone 'capable and willing to decide the 

case solely on the evidence' presented at trial. (Smith v. Phillips, supra, 455 U.S. at p. 

217 [102 S.Ct. at p. 946]; In re Carpenter, supra, 9 Cal.4th at pp. 648, 656.)" (Id. at p. 

581.)

"When juror misconduct involves the receipt of information about a party or the 

case from extraneous sources, the verdict will be set aside only if there appears a 

substantial likelihood of juror bias. (In re Carpenter [(1995) 9 Cal.4th 634,] 653.) Such 

bias may appear in either of two ways: (1) if the extraneous material, judged objectively, 

is so prejudicial in and of itself that it is inherently and substantially likely to have 

influenced a juror; or (2) even if the information is not 'inherently' prejudicial, if, from the 

nature of the misconduct and the surrounding circumstances, the court determines that it 

is substantially likely a juror was 'actually biased' against the defendant." (Nesler, supra, 
52

16 Cal.4th at pp. 578-579.) Defendants do not argue that French's communication met 

the first test.7

The California Supreme Court has "found juror misconduct where a juror actively 

or passively obtains information about a case from outside sources. (E.g., People v. 

Ramos (2004) 34 Cal.4th 494, 518-520 . . . [consideration of outside newspaper articles 

during trial]; People v. Danks (2004) 32 Cal.4th 269, 306-307 . . . [conversation with 

pastor about the case]; People v. Nesler, supra, 16 Cal.4th at pp. 579-580 . . . 

[overhearing information about the case in a bar and revealing it to fellow jurors].)" 

(People v. Gamache (2010) 48 Cal.4th 347, 398.) "Although inadvertent exposure to outof-court information is not blameworthy conduct, as might be suggested by the term 

'misconduct,' it nevertheless gives rise to a presumption of prejudice, because it poses the 

risk that one or more jurors may be influenced by material that the defendant has had no 

opportunity to confront, cross-examine, or rebut." (Nesler, supra, 16 Cal.4th at p. 579.) 

"Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the 

entire record in the particular case, including the nature of the misconduct or other event, 

and the surrounding circumstances, indicates there is no reasonable probability of 

prejudice, i.e., no substantial likelihood that one or more jurors were actually biased 

against the defendant. [Citations.]" (In re Hamilton (1999) 20 Cal.4th 273, 296.)

In Nesler, a juror had remained "in a bar while a woman revealed damaging 

information about defendant for half an hour," the juror "did not identify herself as a 

juror," "[s]he did not disclose the outside information or its source to the court," and she 

 

7

The inherently and substantially likely test "is analogous to the general standard 

for harmless error analysis under California law." (In re Carpenter (1995) 9 Cal.4th 634, 

653.) "Under this standard, a finding of 'inherently' likely bias is required when, but only 

when, the extraneous information was so prejudicial in context that its erroneous 

introduction in the trial itself would have warranted reversal of the judgment. 

Application of this 'inherent prejudice' test obviously depends upon a review of the trial 

record to determine the prejudicial effect of the extraneous information." (Ibid.)
53

disclosed this information to other jurors during deliberations and attempted "to persuade 

them to change their views." (Nesler, supra, 16 Cal.4th at p. 579.) The Supreme Court 

characterized the juror's behavior as "serious misconduct." (Id. at pp. 579-580.) The 

court stated that it was required on review to "independently determine whether, from the 

nature of [the juror's] misconduct and all the surrounding circumstances, there is a 

substantial likelihood [the juror] was actually biased, i.e., was unable to put aside her 

impressions or opinions based upon the extrajudicial information she received and to 

render a verdict based solely upon the evidence received at trial." (Id. at pp. 582-583.) It 

determined that "[the juror's] repeated, improper use of the damaging information 

concerning defendant leads us to conclude that there is a substantial likelihood [the juror] 

was influenced to defendant's detriment by the information she had received outside of 

court and, therefore, that she was actually biased." (Id. at p. 585 and fn. 8.)

In this case, as a threshold matter, it is not clear that Juror No. 5's observation of 

French's communication constitutes juror misconduct. French was under oath on the 

witness stand when he volunteered a communication and gestured while counsel and the 

court were conferring. Evidence Code section 766 provides: "A witness must give 

responsive answers to questions, and answers that are not responsive shall be stricken on 

motion of any party." According to a well respected treatise, "[t]estimony of a witness 

that is not in response to any question falls into the same category as a completely 

nonresponsive answer." (Jefferson's Cal. Evidence Benchbook (4th ed. 2012) § 28.60, p. 

536.) In contrast, in Caliendo v. Warden of California Men's Colony (9th Cir. 2004) 365 

F.3d 691, upon which defendants Zavala and Rodriguez rely, a critical prosecution 

witness spoke with multiple jurors in the hallway for approximately 20 minutes. (Id. at 

pp. 693, 698.) 

Although defendant Zavala's counsel questioned French about his volunteered 

communication and gestures, none of the defense counsel, presumably for tactical 
54

reasons, chose to draw any further attention to French's volunteered statement by asking 

the court to strike it. A party's failure to timely move to strike volunteered evidence 

waives any claim that the evidence was erroneously admitted. (Evid. Code, § 353, subd. 

(a); see People v. Jennings (1991) 53 Cal.3d 334, 373-375 [objection to witnesses' 

volunteered, nonresponsive answers waived by failing to object, move to strike, or 

request curative admonition]; cf. People v. Cooper (1991) 53 Cal.3d 771, 836 ["When . . . 

a jury innocently considers evidence it was inadvertently given, there is no misconduct" 

and there is reversible error only if it is reasonably probable that a result more favorable 

to the defendant would have been reached in the absence of the error].)

Even assuming that Juror No. 5's observation of French's volunteered 

communication indicating defendants' guilt gave rise to a presumption of prejudice, the 

presumption was adequately rebutted during the trial court's exchange with Juror No. 5. 

"We accept the trial court's credibility determinations and findings on questions of 

historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose 

from juror misconduct, however, is a mixed question of law and fact subject to an 

appellate court's independent determination. [Citations.]" (People v. Nesler, supra, 16 

Cal.4th 561, 582.) "Courts may properly rely on [a juror's] statements to determine 

whether a juror can maintain his or her impartiality after an incident raising a suspicion of

prejudice. [Citations.]" (People v. Harris (2008) 43 Cal.4th 1269, 1304.) We defer to 

the trial court's implicit credibility determinations regarding Juror No. 5's repeated 

assurances that she could evaluate French's testimony and credibility without considering 

his volunteered communication. (Id. at p. 1305.) "We may not substitute our reading of 

the 'cold transcript' in this case for the credibility determinations reached by the trial court 

after making its inquiry, observing the juror, and listening to his responses. [Citation.]" 

(People v. Stanley (2006) 39 Cal.4th 913, 951.) Moreover, unlike the situation in Nesler, 

the record does not disclose that Juror No. 5 shared French's volunteered communication 
55

with other jurors or considered that communication in her deliberations. Based upon the 

record before us, we conclude there is no substantial likelihood that the juror was actually 

biased against any defendant. Any presumption of prejudice was rebutted and the trial 

court properly refused to discharge Juror No. 5.

3. Refusal to Discharge Jurors No. 2, 3, and 6 and Grant Mistrial

Defendant Zavala contends that Jurors No. 2, 3, or 6 may have seen the same 

mouthed communication as Jurors No. 5 and 9 but they have regarded it "as 'non verbal 

communication or attempted communication,' rather than as a statement." He suggests 

that if questioned, they might have "reported the same irremediable prejudice" disclosed 

by Juror No. 9, who was dismissed from the jury. He asserts that the trial court erred in 

denying his motion to dismiss Jurors No. 2, 3, and 6 and his motion for mistrial. 

Defendant Rodriguez joins in defendant Zavala's arguments. Defendant Hensley argues 

that a presumption of prejudice arose from their observation of French's nonresponsive 

conduct, the trial court should have questioned those jurors to ascertain whether they 

were improperly influenced, and the presumption of prejudice was not rebutted since the 

court "failed to make any inquiry to ascertain whether the jurors were affected by 

extraneous communications." He maintains that the trial court committed reversible error 

and violated his due process rights to a fair and impartial jury by denying the mistrial 

motion.

The word "verbal" ordinarily means "of, relating to, or consisting of words." 

(Merriam-Webster's Collegiate Dict. (10th ed. 1999) p.1311.) Jurors No. 2, 3, and 6 did 

not respond when the court asked, "Did any members of the jury see—hear any statement 

made by Mr. French . . . ." Rather, in response to further inquiry by the trial court, Jurors 

No. 2, 3, and 6 indicated, apparently by a show of hands, they had seen nonverbal or 

attempted communication. The court stated: "Aside from the jurors who say that they 

heard something or that they read his lips, I'm going to include that, and that was Juror[s] 
56

No. 9 and No. 5, right? Okay." The trial court impliedly inferred from its exchange with 

the jurors that Jurors No. 2, 3, and 6 had not heard French speak or mouth any words and 

this appears to be a reasonable inference based on the record before us.

As a general rule, the "jury may consider in determining the credibility of a 

witness any matter that has any tendency in reason to prove or disprove the truthfulness 

of his testimony at the hearing, including but not limited to" the witness's "demeanor 

while testifying and the manner in which he testifies" and the witness's "attitude toward 

the action in which he testifies or toward the giving of testimony." (Evid. Code, § 780, 

subds. (a) and (j).) "A witness's demeanor is 'part of the evidence' and is 'of considerable 

legal consequence.' [Citations.]" (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 

1358; see People v. Harris (2013) 57 Cal.4th 804, 856.)

As discussions between counsel and the judge out of the jury's presence indicate, 

French had exhibited an aggressive demeanor and had exuded an "air of anger and 

danger" during his questioning. Defendant Zavala's counsel stated on the record that 

French was "staring in the direction of the defendants" "for the last half of his testimony 

. . . ." The trial court was concerned that further inquiry would "run the risk of 

magnifying out of proportion" the " 'F you' gesture." French's brief gestures while 

counsel and the court were otherwise engaged apparently conveyed a hostile or 

aggressive attitude toward defendants similar to the demeanor the jurors had observed 

while he was testifying. We question whether his gestures were the type of extrajudicial 

information that gives rise to a presumption of prejudice. (Cf. People v. Harris, supra,

57 Cal.4th at pp. 854-856; People v. Cooper, supra, 53 Cal.3d at p. 836.)

In any case, "[t]he trial judge is afforded broad discretion in deciding whether and 

how to conduct an inquiry to determine whether a juror should be discharged. 

[Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 971.) "When a court has been put 

on notice that there may be good cause to discharge a juror, it 'must conduct a sufficient 
57

inquiry to determine facts alleged as juror misconduct.' [Citation.]" (Ibid.) "Our 

assessment of the adequacy of a court's inquiry into juror misconduct is deferential: We 

have long recognized that, except when bias is apparent from the record, the trial judge is 

in the best position to assess the juror's state of mind during questioning. [Citation.]" 

(Ibid.) The trial court did not abuse its discretion by declining to make further inquiries 

concerning Jurors Nos. 2, 3, and 6 after determining they had not observed French's 

volunteered communication. We find no substantial likelihood that any of the three 

jurors who saw French's gestures was actually biased against the defendant.

" ' "A mistrial should be granted if the court is apprised of prejudice that it judges 

incurable by admonition or instruction. [Citation.] Whether a particular incident is 

incurably prejudicial is by its nature a speculative matter, and the trial court is vested with 

considerable discretion in ruling on mistrial motions . . . ." [Citation.] A motion for a 

mistrial should be granted when " ' "a [defendant's] chances of receiving a fair trial have 

been irreparably damaged." ' " ' (People v. Collins (2010) 49 Cal.4th 175, 198.) 

'Although most cases involve prosecutorial or juror misconduct as the basis for the 

motion, a witness's volunteered statement can also provide the basis for a finding of 

incurable prejudice.' (People v. Wharton (1991) 53 Cal.3d 522, 565.)" (People v. 

Dement (2011) 53 Cal.4th 1, 39.) "In reviewing rulings on motions for mistrial, we apply 

the deferential abuse of discretion standard. (People v. McLain (1988) 46 Cal.3d 97, 

113.)" (People v. Wallace (2008) 44 Cal.4th 1032, 1068.)

French's volunteered gestures did not result in any incurable prejudice. As the 

court presumably anticipated, the jury received basic instructions regarding setting aside 

bias and prejudice, what constituted evidence, and evaluating witness testimony and 

credibility. The jurors could consider French's testimony denying that he had engaged in 

any volunteered communication or gesture while counsel and the court conferred. The 

trial court did not abuse its discretion by denying a mistrial.
58

4. Refusal to Give Proposed Instruction

After the parties rested, defendant Zavala's counsel requested the following jury 

instruction: "This relates to during the discussion at the bench between the attorneys and 

the Court, the witness, Mr. French, made certain signals and gestures which were 

observed by some members of the jury which he denied making. You may not discuss or 

consider any information conveyed by these gestures, but you may consider the fact that 

he made the gestures as serious misconduct on his part, and the fact that he falsely denied 

making them in assessing his credibility." The trial court declined to give that proposed 

instruction.

On appeal, defendant Zavala argues that the jurors who did not see French make 

any signal or gesture may have learned of it from one or more of the jurors who saw 

something and may have been prejudiced. He maintains that the court's refusal to give 

the proposed instruction created the "substantial possibility that one or more jurors was 

biased" against him as a result of French's behavior and violated his rights to jury trial 

and due process. Defendant Rodriguez attempts to join in these contentions.8

Reviewing courts "will not presume greater misconduct than the evidence shows." 

(In re Carpenter (1995) 9 Cal.4th 634, 657.) Moreover, it is "the general rule that a trial 

court may properly refuse an instruction offered by the defendant if it incorrectly states 

the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not 

supported by substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30.) 

It is a trial court's duty to "inform the jury in all cases that the jurors are the exclusive 

 

8 Defendant Rodriguez asserts that he may raise this instructional error even though 

he did not join in defendant Zavala's request for the proposed instruction, citing section 

1259. Defendant Rodriguez's claim of error was not preserved for review. (See People v.

Lee (2011) 51 Cal.4th 620, 638 [defendant's "failure to request clarification of an 

otherwise correct instruction forfeits the claim of error for purposes of appeal"]; People v. 

Mitcham (1991) 1 Cal.4th 1027, 1048 [defendant's claim of error was deemed waived 

because he did not join in codefendant's motion].) In any case, the trial court did not err.
59

judges of all questions of fact submitted to them and of the credibility of the witnesses." 

(§ 1127.) An instruction that " 'invite[s] the jury to draw inferences favorable to one of 

the parties from specified items of evidence,' " is "considered 'argumentative' and 

therefore should not be given. [Citations.]" (People v. Earp (1999) 20 Cal.4th 826, 886.) 

Defendant Zavala's proposed instruction improperly invited the jury to draw unfavorable 

inferences regarding French's credibility and the trial court properly declined to give it.

The trial court provided the jurors with adequate guidance on their evaluation of 

witness credibility and what constituted "evidence" that could be considered by them. 

They were directed not to let bias or prejudice influence their decision. They were told 

not to be "biased against the defendants just because they have been arrested, charged 

with a crime, or brought to trial." They were instructed that, in deciding the facts, they 

must "use only the evidence that was presented in this courtroom," and "[e]vidence is the 

sworn testimony of witnesses, the exhibits admitted into evidence, anything else [the 

judge] told [the jurors] to consider as evidence." The jurors were also told that the 

attorneys' questions were not evidence and "[o]nly the witness[es]' answers are evidence." 

The court instructed them to "disregard anything you saw or heard when the court was 

not in session, even if it was done or said by one of the parties or witnesses." The court 

gave specific guidance regarding the factors relevant to their evaluation of witness 

testimony and told them to set "aside any bias or prejudice you may have." The court 

instructed: "If you decide that a witness deliberately lied about something significant in 

this case, you should consider not believing anything that witness says; or, if you think 

the witness lied about some things but told the truth about others, you may simply accept 

the part that you think is true, and ignore the rest." The trial court's refusal to give 

defendant Zavala's proposed instruction did not deprive any defendant of a fair trial.
60

C. Instructional Error Related to Accomplice Testimony

1. Failure to Give Accomplice Instructions

Defendant Zavala contends that the trial court erred in failing to instruct the jury 

regarding accomplice testimony and the requirement of corroborating evidence and this 

error violated his constitutional rights to jury trial and due process. He maintains that 

both witness R.B. and co-defendant Hensley qualified as accomplices. Defendant 

Rodriguez joins in defendant Zavala's arguments.

Section 1111 states: "A conviction cannot be had upon the testimony of an 

accomplice unless it be corroborated by such other evidence as shall tend to connect the 

defendant with the commission of the offense . . . ." It defines an accomplice as "one 

who is liable to prosecution for the identical offense charged against the defendant on 

trial in the cause in which the testimony of the accomplice is given." The statutory 

definition of accomplice "encompasses all principals to the crime (People v. Tewksbury

(1976) 15 Cal.3d 953, 960), including aiders and abettors and coconspirators. (People v. 

Gordon (1973) 10 Cal.3d 460, 468.)" (People v. Stankewitz (1990) 51 Cal.3d 72, 90.)

"It is well settled that the phrase 'liable to prosecution' in section 1111 means, in 

effect, properly liable. Any issues of fact determinative of the witness's factual guilt of 

the offense must be submitted to the jury. Only when such facts are clear and undisputed 

may the court determine that the witness is or is not an accomplice as a matter of law. 

[Citations.]" (People v. Rodriguez (1986) 42 Cal.3d 730, 759; see People v. Williams

(1997) 16 Cal.4th 635, 679 ["Whether a person is an accomplice within the meaning of 

section 1111 presents a factual question for the jury 'unless the evidence permits only a 

single inference.' [Citation.]"].)

"When a jury receives substantial evidence that a witness who has implicated the 

defendant was an accomplice, a trial court on its own motion must instruct it on the 

principles regarding accomplice testimony. (Boyer, supra, 38 Cal.4th at pp. 466–467.) 
61

This includes instructing the jury that an accomplice's testimony implicating the 

defendant must be viewed with caution and corroborated by other evidence. (Ibid.; see 

CALJIC Nos. 3.11, 3.18; CALCRIM Nos. 334, 335.)" (People v. Houston (2012) 54 

Cal.4th 1186, 1223-1224.) Since there was evidence showing that defendant Hensley 

was a principal in the charged crimes (see § 31) and, therefore, an accomplice, the court's 

failure to give the appropriate accomplice instruction constituted error. (See People v. 

Avila (2006) 38 Cal.4th 491, 562; People v. Box (2000) 23 Cal.4th 1153, 1209, 

disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.)

On the other hand, the evidence was not sufficient to support a finding that witness 

R.B. was an accomplice. A defendant has the burden of proving that a witness is an 

accomplice by a preponderance of the evidence. (People v. Tewksbury (1976) 15 Cal.3d 

953, 968.) A person's mere knowledge that a crime might be committed by another in the 

future or failure to prevent it does not make the person an aider or abettor and, therefore, 

an accomplice. (See People v. Horton (1995) 11 Cal.4th 1068, 1116; People v. 

Stankewitz, supra, 51 Cal.3d at pp. 90-91, People v. Moran (1974) 39 Cal.App.3d 398, 

413.) "Providing assistance without sharing the perpetrator's purpose and intent is 

insufficient to establish that a person is an accomplice. (People v. Sully (1991) 53 Cal.3d 

1195, 1227.)" (People v. Carrington (2009) 47 Cal.4th 145, 191.) There was insufficient 

evidence from which to draw a reasonable inference that R.B. intended to, and did in fact, 

aid, facilitate, promote, encourage or instigate the robbery. (See People v. Houston, 

supra, 54 Cal.4th at pp. 1224-1225.) There was also insufficient evidence from which to 

draw a reasonable inference that R.B. had the requisite specific intents to be a 

coconspirator in the robbery. (See People v. Jurado (2006) 38 Cal.4th 72, 120, 123.) 

Evidence of mere association with conspirators is not sufficient to support a finding that a 

person is a member of a conspiracy. (See People v. Cummings (1959) 173 Cal.App.2d 

721, 728; see CALCRIM (2012 ed.) Nos. 415, 416, pp. 186, 193.)
62

"A trial court's failure to instruct on accomplice liability under section 1111 is 

harmless if there is sufficient corroborating evidence in the record. (People v. Hayes, 

supra, 21 Cal.4th at p. 1271.)" (People v. Lewis (2001) 26 Cal.4th 334, 370.) 

" '[E]vidence independent of the testimony of the accomplice must tend to connect a 

defendant with the crime itself (and not simply with its perpetrators).' [Citations.]" 

(People v. Szeto (1981) 29 Cal.3d 20, 44.) "Corroborating evidence may be slight, 

entirely circumstantial, and entitled to little consideration when standing alone. (People 

v. Nelson (2011) 51 Cal.4th 198, 218; People v. Gonzales (2011) 52 Cal.4th 254, 303.) It 

need not be sufficient to establish every element of the charged offense or to establish the 

precise facts to which the accomplice testified. (People v. Hayes, supra, 21 Cal.4th at p. 

1271; People v. Negra (1929) 208 Cal. 64, 69–70.) It is 'sufficient if it tends to connect 

the defendant with the crime in such a way as to satisfy the jury that the accomplice is 

telling the truth.' (Fauber, supra, 2 Cal.4th at p. 834.)" (People v. Valdez (2012) 55 

Cal.4th 82, 147-148.)

Here, the record contains adequate corroborating evidence, independent of 

defendant Hensley's testimony (and even independent of witness R.B.'s testimony), 

tending to connect defendants Zavala and Rodriguez to the commission of the crimes. At 

trial, victim McBee was certain the three defendants were in the group that had gone into 

French's backyard and recognized the faces of defendants Zavala and Hensley from the 

robbery. Victims French and Esquibel identified defendant Zavala as a perpetrator in 

photographic lineups. Defendant Rodriguez was identified to police by relatives who had 

seen him at the time and in the vicinity of the crimes. The California Supreme Court has 

indicated that courts apply the Watson standard of review (People v. Watson (1956) 46 
63

Cal.2d 818, 836) only in the absence of sufficient corroboration.9 (People v. Gonzales 

(2011) 52 Cal.4th 254, 304.)

Defendant Zavala nevertheless argues that a court's failure to give an accomplice 

instruction violated his rights to a jury trial and due process and the judgment must be 

reversed unless the instructional omission was harmless beyond a reasonable doubt. He 

compares the failure to give an accomplice instruction to a failure to instruct on an 

element of the offense. He cites Neder v. U.S. (1999) 527 U.S. 1 (119 S.Ct. 1827), which 

held that a court's failure to instruct a jury on an element of a charged offense is subject 

to review under the Chapman harmless-error standard of review. (Neder v. U.S., supra, 

527 U.S. at pp. 8-16; see Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824] 

["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"].) The Supreme Court 

concluded in Neder that an erroneous jury instruction that omits an element of the offense 

did not "render Neder's trial 'fundamentally unfair,' as that term is used in our cases." 

(Neder v. U.S., supra, 527 U.S. at p. 9.) Likewise, a failure to give an accomplice 

instruction did not result in a fundamentally unfair trial in this case.

Further, defendant Zavala has not cited any authority establishing that accomplice 

instructions are grounded in or effectuate any federal constitutional right. We have found 

only law that undermines his contention. (See People v. Gonzales, supra, 52 Cal.4th at 

pp. 303-304 [discussing standard of review]; Cummings v. Sirmons (10th Cir. 2007) 506 

F.3d 1211 ["there is no constitutional requirement that the testimony of an accomplice be 

corroborated by independent evidence"], cert. den. (2008) 554 U.S. 907 [128 S.Ct. 

2943].) Section 1111 merely "codifies common law concerns about the reliability of 

 

9

Even if the Watson standard of review were applicable, we would find no 

reversible error.
64

accomplice testimony. (People v. Tewksbury (1976) 15 Cal.3d 953, 967 . . . .)"10 (People 

v. Gonzales, supra, 52 Cal.4th at p. 303.) The failure to give an accomplice instruction 

did not violate the defendants' constitutional right to have a jury determine whether every 

element of a charged offense was proved beyond a reasonable doubt (see Apprendi v. 

New Jersey (2000) 530 U.S. 466, 477 [120 S.Ct. 2348]); it is not subject to the Chapman

standard of review.

2. Instruction Regarding Sufficiency of the Testimony of a Single Witness

In a claim related to the failure to give an accomplice instruction, defendant 

Zavala argues that the court erred by instructing the jury that the testimony of a single 

witness sufficed to prove any fact. Defendant Rodriguez joins in these arguments.

The trial court instructed: "The testimony of only one witness can prove any fact. 

Before you conclude that the testimony of one witness proves a fact, you should carefully 

review all the evidence." That instruction correctly states the general law with respect to 

witness testimony (see Evid. Code, § 411 ["Except where additional evidence is required 

by statute, the direct evidence of one witness who is entitled to full credit is sufficient for 

proof of any fact"]). The court failed, however, to explain the exception to that rule for 

accomplice testimony. (See § 1111; CALCRIM (2012 ed.) No. 301, p. 81.)11

 

10 "The cautionary instructions governing accomplice testimony have their roots in 

English common law. [Citations.] The reason most often cited in support of these 

instructions is that an accomplice is inherently untrustworthy because he or she 'usually 

testif[ies] in the hope of favor or the expectation of immunity.' (People v. Coffey (1911) 

161 Cal. 433, 438 . . . .) In addition, an accomplice may try to shift blame to the 

defendant in an effort to minimize his or her own culpability. [Citation.]" (People v. 

Tobias (2001) 25 Cal.4th 327, 331.) "The limitation based on the common law distrust of 

accomplices as now embodied in section 1111 is much harsher than the common law 

limitation." (People v. Tewksbury, supra, 15 Cal.3d at p. 967.)

11 CALCRIM No. 301 presently provides: "[Except for the testimony of <insert 

witness's name>, which requires supporting evidence [if you decide (he/she) is an 

accomplice],] (the/The) testimony of only one witness can prove any fact. Before you 
65

Even though the court erred by failing to explain the accomplice testimony 

exception to the general rule regarding the sufficiency of a single witness's testimony, the 

error was harmless. First, the court admonished the jury to carefully review all the 

evidence. Second, the court gave detailed and lengthy instructions to the jurors regarding 

assessing witness credibility. Third, there was ample corroborating evidence. It is not 

reasonably probable that defendant Zavala would have obtained a more favorable result if 

the court had instructed regarding the accomplice testimony exception to the general rule 

regarding the sufficiency of a single witness's testimony. (Cal. Const., art. VI, § 13; 

People v. Watson, supra, 46 Cal.2d at p. 836.)

3. Due Process

Defendant Rodriguez asserts that the trial court's instructional errors related to 

accomplice testimony deprived him of due process. Although we agree that the trial 

court erred, its errors did not result in a denial of due process.

"Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process 

Clause has limited operation." (Dowling v. U.S. (1990) 493 U.S. 342, 352 [110 S.Ct. 

668].) "As applied to a criminal trial, denial of due process is the failure to observe that 

fundamental fairness essential to the very concept of justice. In order to declare a denial 

of it we must find that the absence of that fairness fatally infected the trial; the acts 

complained of must be of such quality as necessarily prevents a fair trial." (Lisenba v. 

People of State of California (1941) 314 U.S. 219, 236 [62 S.Ct. 280].)

More than 100 years ago, the U.S. Supreme Court stated: "It is undoubtedly the 

better practice for courts to caution juries against too much reliance upon the testimony of 

accomplices, and to require corroborating testimony before giving credence to them." 

(Holmgren v. U.S. (1910) 217 U.S. 509, 523-524 [30 S.Ct. 588].) In that case, since "no 

 

conclude that the testimony of one witness proves a fact, you should carefully review all 

the evidence."
66

such charge was asked to be presented to the jury by any proper request in the case" and 

the requested instruction did not properly state the applicable law, there was no error. 

(Ibid.) The high court subsequently observed: "Accomplice instructions have long been 

in use and have been repeatedly approved. See, e.g., Holmgren v. United States, 217 U.S. 

509, 523-524, 30 S.Ct. 588, 591-592, 54 L.Ed. 861 (1910). In most instances, they 

represent no more than a commonsense recognition that an accomplice may have a 

special interest in testifying, thus casting doubt upon his veracity. See, e.g., Crawford v. 

United States, 212 U.S. 183, 204, 29 S.Ct. 260, 268, 53 L.Ed. 465 (1909)." (Cool v. U. S.

(1972) 409 U.S. 100, 103 [93 S.Ct. 354].)

In this case, the jury was instructed at length on the evaluation of witness 

testimony and told to consider, among other things, whether a witness's testimony was 

"influenced by a factor such as bias or prejudice, a personal relationship with someone 

involved in the case, or a personal interest in how the case is decided." The instructional 

errors related to accomplice testimony did not violate due process or render the trial 

fundamentally unfair.

D. Right to Confrontation

1. Procedural History

In support of his in limine motion to exclude hearsay evidence of prior offenses 

and activities allegedly connected to him, defendant Hensley contended that there was a 

danger of improper use of "evidence of prior activities or offenses of the Shalu Gardens 

gang, or the Northern Hispanic gangs" and asserted that he was not associated with those 

gangs. He raised a general objection to "any hearsay evidence which the prosecution 

may proffer under the guise of expert or other law enforcement testimony." He asserted 

that "[i]t would be improper for the prosecution to use the gang expert to establish 

necessary elements of the offense or the gang enhancement as a substitute for testimony 

by a percipient witnesses, and in a manner which may violate defendant's fundamental 
67

rights of due process, confrontation and a fair trial as guaranteed by the Sixth and 

Fourteenth Amendments to the United States Constitution." (Italics added.) No 

particular out-of-court statement was identified. His contemporaneous in limine motion 

to bifurcate trial of the gang enhancements was based on the prejudicial effect of the gang 

evidence, not the confrontation clause of the Sixth Amendment to the U.S. Constitution.

Defendant Zavala's in limine motion to exclude gang-related evidence or, 

alternatively, to bifurcate the trial of the gang enhancement allegations, was brought on 

the grounds that there was no evidence the charged crimes were gang related or the 

evidence of "gang-relatedness" was so weak that its admission in the case in chief would 

be unduly prejudicial. The written motion did not cite Crawford v. Washington (2004) 

541 U.S. 36 [124 S.Ct. 1354] (Crawford) or mention his constitutional right to 

confrontation.

At the beginning of the hearing on the in limine motions, the court indicated that 

defendant Rodriguez's counsel had joined in the codefendants' motions to preclude 

evidence that the crimes were gang-related. The court described the gist of defendant 

Zavala's argument as the prosecution's lack of evidence relating to gangs and his counsel 

agreed. The People called Sergeant Dan Livingston as a witness. Defense counsel 

stipulated that, for purpose of the hearing, Sergeant Livingston was an expert in northern 

Hispanic criminal street gangs. The sergeant testified at length.

Following Sergeant Livingston's testimony at the hearing on the in limine motions, 

defendant Zavala's counsel presented argument. He contended that the court should 

exclude gang-related evidence altogether because the charged robbery was not a gang 

crime. Zavala's counsel was concerned that the People's gang expert, Sergeant 

Livingston, was going to recount statements made by Kyle Moneyhun to police. He 

mentioned that, if Sergeant Livingston were to testify regarding what Moneyhun had told 

him, those statements would be coming into evidence in violation of defendant Zavala's 
68

confrontation rights under the Sixth Amendment as set forth in Crawford, supra, 541 

U.S. 36 and Davis, supra, 547 U.S. 813. Counsel urged the court to at least bifurcate the 

trial, maintaining that the gang evidence was not cross admissible on issues of guilt and 

Sergeant Livingston's testimony as a gang expert would include prejudicial hearsay 

statements. 

Defendant Zavala's counsel did not specifically interpose a confrontation objection 

but he mentioned in the course of argument that he was also going to bring a separate in 

limine motion based on Crawford and noted that several California cases had discussed 

hearsay related by an expert in relation to Crawford but he had not brought case citations 

with him. Counsel was aware that those cases had found the trial courts had not abused 

their discretion in allowing the experts to testify to hearsay but he attempted to 

distinguish those cases on the ground that the hearsay in those cases concerned the 

defendant's membership in a gang while hearsay in this case would bear on the 

defendant's guilt. He referred to the New York case of People v. Goldstein, 6 N.Y.3d 

119.12 In closing, he argued that the court must bifurcate the trial of the gang 

enhancements because of the potential "very serious problems" that would be created if 

Sergeant Livingston testified to his opinion that the robbery was gang related "because of 

the way it was planned and because of what Mr. Zavala said . . . ." Counsel for 

defendants Hensley and Rodriguez joined in those arguments.

The prosecutor responded that the gang expert's testimony would not violate 

Crawford because the court would instruct the jury that the sergeant's "testimony as it 

 

12 In People v. Goldstein (2005) 843 N.E.2d 727, New York's high court concluded 

that statements made to a forensic psychiatrist, whom the People retained to testify at 

trial, were testimonial hearsay offered for their truth. (Id. at pp. 729, 733.) The court 

concluded that the defendant's rights under the confrontation clause were violated when 

the expert recounted the interviewees' statements without giving the defendant an 

opportunity to cross-examine them. (Id. at pp. 732-734.)
69

relates to the underlying facts" was not admitted for its truth but only to evaluate the 

expert's testimony. The court indicated that there was sufficient evidence from which a 

jury could infer that the crime was gang-related and the gang evidence might be 

admissible on issues of intent and motive and, accordingly, bifurcation was inappropriate 

because there was sufficient cross-admissibility. The court denied the motions to exclude 

gang evidence and the motions to bifurcate the trial.13

On April 5, 2011, defendant Zavala filed a separate motion to exclude all 

references by Sergeant Livingston, the prosecution's gang expert, to accusatory 

statements made by Moneyhun and recited in Campbell Police Department reports 

because their admission would violate his right to confrontation under the Sixth 

Amendment as set forth in Crawford, supra, 541 U.S. 36 and Davis, supra, 547 U.S. 813. 

The motion urged the court to reconsider its denial of bifurcation and, absent bifurcation, 

to "preserve his right to confront the witnesses against him by precluding Sgt. Livingston 

from making reference to hearsay reports that Zavala and Rodriguez planned the crime 

and that Zavala threatened to kill a victim or a witness."

A jury was selected. On April 7, 2010, trial commenced. 

 

13 It is critical to note that defendant Hensley's and Zavala's written motions in limine 

to exclude gang-related evidence because of the danger of improper use or potential 

prejudice targeted all out-of-court statements related by the prosecution's expert, not 

specifically testimonial statements. Nontestimonial "basis evidence" to explain expert 

testimony is clearly not inadmissible under Crawford and its progeny (see e.g. Michigan 

v. Bryant, supra,131 S.Ct. at p. 1155 [admissibility of nontestimonial statement is not the 

concern of the confrontation clause]; Crawford, supra, 541 U.S. at pp. 53 [testimonial 

hearsay is the primary object of Sixth Amendment's confrontation clause], 68 ["it is 

wholly consistent with the Framers' design" to exempt nontestimonial hearsay statements 

"from Confrontation Clause scrutiny altogether"]) and People v. Gardeley (1996) 14 

Cal.4th 605, 617-619. We would find that those pretrial motions were properly denied as 

overbroad if we were to treat them as motions invoking the Sixth Amendment right to 

confrontation.
70

On April 9, 2010, out of the presence of the jury, defendant Zavala's attorney 

renewed the motion to exclude gang evidence or to bifurcate trial. He also separately 

moved to exclude Sergeant Livingston's references to gang incidents that did not result in 

either an arrest or conviction of defendant Zavala because it was "simply a way of 

spreading Mr. Zavala's bad character in front of the jury . . . ." The court indicated that it 

would not allow Sergeant Livingston to testify as to Moneyhun's statements but its ruling 

on bifurcation would stand.

During the extended exchange, defendant Rodriguez's counsel asked the court to 

not admit evidence of prior arrests because they were not relevant and Sergeant 

Livingston could explain his opinion based on defendant "Rodriquez's prior admissions 

and the people he hangs out with and the colors and so forth." The trial court indicated 

that, once the prosecutor decided which prior arrests he wished to introduce into 

evidence, the court would discuss it with counsel.

The discussion continued and defendant Hensley's counsel asked the court to 

exclude evidence that the mother of defendant Hensley's girlfriend identified him as a 

Norteno gang member because counsel did not "know how any expert can give that any 

kind of weight" in determining the defendant is a gang member. The court expressed its 

belief that one question was whether or not the statement by the girlfriend's mother was 

testimonial. No ruling was made on the request of defendant Hensley's counsel to 

exclude the evidence and counsel never expressly objected to that evidence on 

confrontation grounds on the record.

Defendant Zavala's counsel noted there were several individuals who made 

statements regarding defendant Zavala's gang membership. Counsel moved to amend his 

prior in limine motion to include that evidence within the motion but he did not state any 

confrontation objection. Defendant Hensley's counsel then renewed the defendant's 

motion to bifurcate trial of the gang enhancements. Defendant Zavala's counsel asserted 
71

that the sergeant's testimony regarding his opinion would entail the admission of 

otherwise inadmissible evidence and bifurcation was the only proper solution. The court 

suggested that the issue was whether Crawford applies to statements relied upon by an 

expert that would be otherwise inadmissible under the confrontation clause. Defendant 

Zavala's counsel agreed that was issue. The court indicated that it was still thinking. No 

ruling was obtained on these matters before the People called Sergeant Livingston to 

testify.

During his testimony, Sergeant Livingston indicated his belief that the robbery 

was committed in association with, for the benefit of, and partly at the direction of the 

Shalu Gardens street gang. One of the circumstances contributing to his opinion was the 

persons present for the planning of the crime. Sergeant Livingston testified without 

objection: "The two primary people initially who were planning the crime were Mark 

Zavala and Jonathan Rodriguez, two influential members of Shalu Gardens." When 

asked why he had said that, the sergeant replied, "Based on prior contacts, speaking with 

other people, reviewing police reports." Counsel for defendant Zavala objected.

Out of the jury's presence, defendant Zavala's counsel explained that the problem 

with Sergeant Livingston's testimony was that it implied that he had some knowledge 

from reading the reports beyond the information provided by witness R.B. Counsel for 

defendant Rodriguez indicated that Evidence Code section 352 should be applied to the 

hearsay evidence of planning. Zavala's counsel asserted there was a confrontation issue 

because Moneyhun and Stojkovic had also made statements to police.

The court noted that the expert had not revealed Moneyhun's and Stojkovic's 

specific out-of-court statements and indicated the general rule permitted an expert to rely 

on otherwise inadmissible evidence, including hearsay statements, if the evidence is of 

the type that experts rely upon in forming an opinion. It ruled that the prosecution's 

expert could rely on out-of-court statements of other gang members, witnesses, and 
72

officers and those statements were admissible with a limiting instruction that they were 

not offered for their truth.

Defendant Zavala's counsel argued that the sergeant needed to affirmatively say 

that he was relying on R.B.'s statements because otherwise the jury would be left with 

"the impression that he's relying on statements made by other people. The court ruled 

that the expert could not refer to statements made by Moneyhun and Stojkovic regarding 

defendants Zavala's and Rodriguez's planning of the crime.

The trial court gave a limiting instruction to the jurors, informing them that, 

although Sergeant Livingston may be relying on the statements of others in reaching an 

opinion, evidence of those statements were not offered for the truth of the matter and the 

jurors could not consider the statements for their truth.

Sergeant Livingston then began testifying regarding "pattern" offenses. When the 

prosecutor asked about an offense committed on June 5, 2007, defendant Zavala's 

counsel asked to approach and there was an unreported sidebar conference. When the 

prosecutor continued with questioning and the witness began to answer, counsel 

interrupted and stated that he had the same objection to the details of that offense and "all 

other pattern offenses." The court overruled the objection. The record does not indicate 

the legal ground for the objection.

In connection with his opinions on the defendants' gang membership, Sergeant 

Livingston testified to, among other things, a number of incidents involving police. The 

sergeant recounted an incident that occurred on November 19, 2005 where, following a 

report of harassment, the police contacted a group that included several individuals, 

including defendants Zavala and Rodriguez, who were dressed in gang clothing. Two 

known SLG gang members and an SLG associate were present. Two individuals 

indicated that the males present were all SLG members. After the testimony was
73

adduced, defendant Zavala's counsel objected on hearsay and confrontation grounds. The 

court overruled the objection.

During redirect-examination of Sergeant Livingston, the trial court reminded the 

jury that Sergeant Livingston's testimony about others' statements fell under the court's 

previous instruction and the testimony was being admitted for the limited purpose of 

showing the basis of the sergeant's opinion and not for the truth of the matter stated.

2. Appellate Contentions

On appeal, defendant Hensley complains that Livingston's testimony regarding the 

basis for his expert opinion whether the robbery was committed in association with, for 

the benefit of, and partly at the direction of the Shalu Gardens street gang "informed the 

jury that Livingston was not relying exclusively on [R.B.]." He also attacks Livingston's 

testimony regarding the defendants' gang membership that was based on out-of-court 

statements "from persons not offered for cross-examination." He now asserts that the 

statements made by Moneyhun, Stojkowicz, and others were testimonial hearsay and 

"Sergeant Livingston was not offering expert opinion testimony but rather serving as [a] 

conduit for hearsay . . . ." Defendant Zavala joins in defendant Hensley's arguments and 

asserts that the testimonial hearsay recited by Officer Livingston violated his state and 

federal right to confront the adverse witness against him. (See U.S. Const. 6th Amend.; 

Cal. Const., art. I, § 15.)

Defendant Rodriguez similarly argues that the admission of out-of-court 

statements to show the basis of Sergeant Livingston's opinion that the crime was gangrelated violated his Sixth Amendment right to confront witnesses since those statements 

were hearsay and often testimonial. He states that "it is clear on the record that many of 

the statements on which Livingston relied are testimonial hearsay, and with respect to 

others the prosecution failed to meet its burden to establish their admissibility by showing 

that they did not constitute testimonial hearsay." 
74

3. Crawford and its Progeny

The Sixth Amendment to the United States Constitution provides: "In all criminal 

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses 

against him. . . ." "The Fourteenth Amendment renders the Clause binding on the States. 

Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)."14 (Michigan 

v. Bryant (2011) ___ U.S. ___, ___ [131 S.Ct. 1143, 1152].) "In Crawford v. Washington

(2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the high court held that this 

provision prohibits the admission of out-of-court testimonial statements offered for their 

truth, unless the declarant testified at trial or was unavailable at trial and the defendant 

had had a prior opportunity for cross-examination. (See Davis v. Washington (2006) 547 

U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224; People v. Cage (2007) 40 Cal.4th 965, 

969.)" (People v. Livingston (2012) 53 Cal.4th 1145, 1158.) "[W]hen the declarant 

appears for cross-examination at trial, the Confrontation Clause places no constraints at 

all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 

162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)." (Crawford, supra, 541 U.S. at p. 59, fn. 9.)

In Crawford, the Supreme Court declined to provide a comprehensive definition of 

testimonial statements. (Crawford, supra, 541 U.S. at p. 68.) But it gave some guidance: 

"Various formulations of this core class of 'testimonial' statements exist: 'ex parte incourt testimony or its functional equivalent-that is, material such as affidavits, custodial 

examinations, prior testimony that the defendant was unable to cross-examine, or similar 

pretrial statements that declarants would reasonably expect to be used prosecutorially,' 

 

14 Article I, section 15 of the California Constitution provides: "The defendant in a 

criminal cause has the right . . . to be confronted with the witnesses against the 

defendant." The California Constitution also states: "In criminal cases the rights of a 

defendant . . . to confront the witnesses against him or her . . . shall be construed by the 

courts of this State in a manner consistent with the Constitution of the United States." 

(Cal. Const., art. I, § 24.)
75

[citation]; 'extrajudicial statements . . . contained in formalized testimonial materials, 

such as affidavits, depositions, prior testimony, or confessions,' [citation]; 'statements that 

were made under circumstances which would lead an objective witness reasonably to 

believe that the statement would be available for use at a later trial' [citation]." (Id. at pp. 

51-52.)

Out-of-court statements, even if offered for their truth, are not ipso facto 

testimonial. (See Crawford, supra, 541 U.S. at p. 51 ["not all hearsay implicates the 

Sixth Amendment's core concerns"].) The Supreme Court explained by way of example: 

"An off-hand, overheard remark might be unreliable evidence and thus a good candidate 

for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses 

the Confrontation Clause targeted." (Ibid.) The court recognized that "[w]here 

nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to 

afford the States flexibility in their development of hearsay law . . . as would an approach 

that exempted such statements from Confrontation Clause scrutiny altogether." (Id. at p. 

68.) It also reiterated that the confrontation clause "does not bar the use of testimonial 

statements for purposes other than establishing the truth of the matter asserted. See 

Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)." (Id. at 

p. 60, fn. 9.)

In Davis, the United States Supreme Court held that a victim's initial statements to 

a 911 operator that identified her assailant, who was at the premises, were not 

testimonial. (Id. at pp. 829) The court made clear the Confrontation Clause applies only 

to testimonial hearsay. (Davis, supra, 547 U.S. at pp. 823-824.) "It is the testimonial 

character of the statement that separates it from other hearsay that, while subject to 

traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." 

(Id. at p. 821.) The court explained that statements "are nontestimonial when made in the 

course of police interrogation under circumstances objectively indicating that the primary 
76

purpose of the interrogation is to enable police assistance to meet an ongoing 

emergency." (Id. at p. 822.) In contrast, statements made during police interrogation "are 

testimonial when the circumstances objectively indicate that there is no such ongoing 

emergency, and that the primary purpose of the interrogation is to establish or prove past 

events potentially relevant to later criminal prosecution." (Ibid., fn. omitted.) Thus, a 

domestic violence victim's statements to police concerning the past actions of her 

husband, which presented no ongoing emergency, were testimonial. (Id. at pp. 829-832.)

In Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [129 S.Ct. 2527] 

(Melendez-Diaz), "Melendez–Diaz was charged with distributing cocaine and with 

trafficking in cocaine in an amount between 14 and 28 grams. [Citations.]" (Id. at p. 

308.) At trial, the prosecution placed into evidence "three 'certificates of analysis' 

showing the results of the forensic analysis performed on the seized substances." (Ibid.) 

The certificates, which "were sworn to before a notary public," "reported the weight of 

the seized bags" and the analyst's finding that the substance contained cocaine. (Ibid.)

The U.S. Supreme court determined in Melendez-Diaz that the analysts' 

certificates were testimonial because they were "quite plainly affidavits" and were made 

under circumstances that provided an objectively reasonable basis for believing they 

would be available for use at a later trial. (Id. at pp. 310-311.) Consequently, the 

certificates were "functionally identical to live, in-court testimony" and "the analysts 

were 'witnesses' for purposes of the Sixth Amendment." (Ibid.) It held that "[a]bsent a 

showing that the analysts were unavailable to testify at trial and that petitioner had a prior 

opportunity to cross-examine them, petitioner was entitled to ' "be confronted with" ' the 

analysts at trial. Crawford, supra, at 54, 124 S.Ct. 1354." (Id. at p. 311, fn. omitted.)

In the course of its analysis, the Supreme Court explained "the relationship 

between the business-and-official-records hearsay exceptions and the Confrontation 

Clause." (Id. at p. 324.) "As we stated in Crawford: 'Most of the hearsay exceptions 
77

covered statements that by their nature were not testimonial—for example, business 

records or statements in furtherance of a conspiracy.' 541 U.S., at 56, 124 S.Ct. 1354. 

Business and public records are generally admissible absent confrontation not because 

they qualify under an exception to the hearsay rules, but because—having been created 

for the administration of an entity's affairs and not for the purpose of establishing or 

proving some fact at trial—they are not testimonial." (Ibid.)

In Bullcoming v. New Mexico (2011) ___ U.S. ___ (131 S.Ct. 2705), the defendant 

was charged with aggravated driving while intoxicated. (Id. at p. 2711.) The principal 

evidence against him was a forensic laboratory report certifying that his "blood-alcohol 

concentration was well above the threshold for aggravated DWI." (Id. at p. 2709.) "At 

trial, the prosecution did not call as a witness the analyst who signed the certification. 

Instead, the State called another analyst who was familiar with the laboratory's testing 

procedures, but had neither participated in nor observed the test on Bullcoming's blood 

sample." (Ibid.) The U.S. Supreme Court held that the confrontation clause does not 

permit "the prosecution to introduce a forensic laboratory report containing a testimonial 

certification—made for the purpose of proving a particular fact—through the in-court 

testimony of a scientist who did not sign the certification or perform or observe the test 

reported in the certification" unless "the analyst who made the certification . . . is 

unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that 

particular scientist." (Id. at p. 2710.) The court stated that "the Clause does not tolerate 

dispensing with confrontation simply because the court believes that questioning one 

witness about another's testimonial statements provides a fair enough opportunity for 

cross-examination." (Id. at p. 2716.)

In Michigan v. Bryant, supra, 131 S.Ct. 1143, the U.S. Supreme Court held that 

statements made by a shooting victim to police officers who discovered him mortally 

wounded in a gas station parking lot were nontestimonial because the objective 
78

circumstances indicted that "the 'primary purpose of the interrogation' was 'to enable 

police assistance to meet an ongoing emergency.' Davis, 547 U.S., at 822, 126 S.Ct. 

2266." (Id. at p. 1150.) The court observed: "Whether formal or informal, out-of-court 

statements can evade the basic objective of the Confrontation Clause, which is to prevent 

the accused from being deprived of the opportunity to cross-examine the declarant about 

statements taken for use at trial." (Id. at p. 1155.) It explained: "When, as in Davis, the 

primary purpose of an interrogation is to respond to an 'ongoing emergency,' its purpose 

is not to create a record for trial and thus is not within the scope of the Clause. But there 

may be other circumstances, aside from ongoing emergencies, when a statement is not 

procured with a primary purpose of creating an out-of-court substitute for trial testimony. 

In making the primary purpose determination, standard rules of hearsay, designed to 

identify some statements as reliable, will be relevant. Where no such primary purpose 

exists, the admissibility of a statement is the concern of state and federal rules of 

evidence, not the Confrontation Clause." (Ibid., fn. omitted.) The court advised that 

"when a court must determine whether the Confrontation Clause bars the admission of a 

statement at trial, it should determine the 'primary purpose of the interrogation' by 

objectively evaluating the statements and actions of the parties to the encounter, in light 

of the circumstances in which the interrogation occurs." (Id. at p. 1162.)

More recently, in Williams v. Illinois (2012) ___ U.S. ___ (132 S.Ct. 2221), in a 

court trial for rape, the prosecution's expert witness confirmed that an outside laboratory, 

Cellmark, produced a DNA profile matching a DNA profile produced by the state police 

laboratory based upon the defendant's blood sample that had been obtained when he was 

arrested on another occasion. (Id. at pp. 2227-2231, 2236 (plur. opn. of Alito, J.).) 

Cellmark's report was not admitted into evidence. (Id. at p. 2230.) The expert testified 

that Cellmark's business records indicated that the state laboratory had sent the rape 

victim's vaginal swabs to Cellmark. (Id. at pp. 2227, 2230.) A fractured Supreme Court 
79

affirmed the judgment of the Illinois Supreme Court, which had upheld the judgment of 

conviction against a claim that the expert's testimony had violated the defendant's 

confrontation rights. (Id. at pp. 2231-2232, 2244.)

The plurality opinion in Williams articulated two independent rationales for its 

conclusion. (Id. at pp. 2228, 2244.) The first reason was that the challenged expert 

testimony regarding Cellmark's out-of-court statements was not admitted for the purpose 

of proving the truth of the matter asserted but rather for "the legitimate nonhearsay 

purpose of illuminating the expert's thought process." (Id. at pp. 2228, 2239-2240.) The 

second basis was that the out-of-court statement was nontestimonial under the objective 

"primary purpose" test. (Id. at pp. 2228, 2242-2243.) The plurality reasoned that the 

outside laboratory report's "primary purpose," "viewed objectively," was "to catch a 

dangerous rapist who was still at large" and "not to obtain evidence for use against 

petitioner, who was neither in custody nor under suspicion at that time," and "not to 

accuse petitioner or to create evidence for use at trial." (Id. at p. 2243.)

In a separate opinion concurring in the Williams judgment, Justice Thomas also 

concluded that Cellmark's out-of-court statements were not testimonial but for an entirely 

different reason, namely their lack of formality and solemnity. (Id. at p. 2225.) He stated 

that "[t]he Cellmark report lacks the solemnity of an affidavit or deposition, for it is 

neither a sworn nor a certified declaration of fact," and "although the report was produced 

at the request of law enforcement, it was not the product of any sort of formalized 

dialogue resembling custodial interrogation." (Id. at p. 2260.)

4. Forfeiture by Failure to Make a Specific and Timely Objection

"The right to confrontation may, of course, be waived, including by failure to 

object to the offending evidence . . . ." (Melendez-Diaz v. Massachusetts, supra, 557 

U.S. at p. 314, fn. 3; see also Evid. Code, § 353.) In California, "[t]he general rule is that 

'when an in limine ruling that evidence is admissible has been made, the party seeking 
80

exclusion must object at such time as the evidence is actually offered to preserve the 

issue for appeal' (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3), although a 

sufficiently definite and express ruling on a motion in limine may also serve to preserve a 

claim (People v. Ramos, supra, 15 Cal.4th at p. 1171 . . . )." (People v. Brown (2003) 31 

Cal.4th 518, 547.)

"[A] motion in limine to exclude evidence is a sufficient manifestation of 

objection to protect the record on appeal when it satisfies the basic requirements of 

Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced 

and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable 

body of evidence; and (3) the motion is made at a time before or during trial when the 

trial judge can determine the evidentiary question in its appropriate context. When such a 

motion is made and denied, the issue is preserved for appeal. On the other hand, if a 

motion in limine does not satisfy each of these requirements, a proper objection satisfying 

Evidence Code section 353 must be made to preserve the evidentiary issue for appeal." 

(People v. Morris (1991) 53 Cal.3d 152, 190, overruled on another ground in People v. 

Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)

The mere mention of Crawford or its progeny in the context of arguing a motion 

to exclude all potentially prejudicial gang-related evidence does not convert the motion 

into a confrontation objection. Neither do we believe that a blanket, pretrial objection to 

all "hearsay" evidence proffered under the "guise" of expert testimony suffices to 

preserve a confrontation claim because the admission of out-of-court statements does not 

necessarily implicate the confrontation clause; the statements must be both hearsay and 

testimonial.15 (Crawford, supra, 541 U.S. at pp. 51, 60, fn. 9; see People v. Loy (2011) 

 

15 The California Supreme Court has stated: " 'On direct examination, the expert may 

explain the reasons for his opinions, including the matters he considered in forming them. 

However, prejudice may arise if, " 'under the guise of reasons,' " the expert's detailed 

explanation " '[brings] before the jury incompetent hearsay evidence.' " [Citations.]' 
81

52 Cal.4th 46, 66 [" 'Not all erroneous admissions of hearsay violate the confrontation 

clause. . . . Only the admission of testimonial hearsay statements violates the 

confrontation clause. . . .' [Citations.]"].) Further, a global hearsay or Evidence Code

section 352 objection to the admission of evidence of the basis of an expert's opinion 

 

[Citation.]" (People v. Carpenter (1997) 15 Cal.4th 312, 403, superseded by statute on 

another ground as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-

1107.) "Ordinarily, the use of a limiting instruction that matters on which an expert 

based his opinion are admitted only to show the basis of the opinion and not for the truth 

of the matter cures any hearsay problem involved, but in aggravated situations, where 

hearsay evidence is recited in detail, a limiting instruction may not remedy the problem. 

[Citations.]" (People v. Coleman (1985) 38 Cal.3d 69, 92, disapproved on another point 

in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32; see id. at p. 93 ["trial court 

abused its discretion by permitting extensive questioning of the expert witnesses on the 

contents of the letters in which defendant's wife claimed, inter alia, that he had previously 

threatened her with violence"].) "Although an expert may base an opinion on hearsay, 

the trial court may exclude from the expert's testimony 'any hearsay matter whose 

irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.' 

(People v. Montiel (1993) 5 Cal.4th 877, 919 . . . .)" (People v. Pollock (2004) 32 Cal.4th 

1153, 1172; see Evid. Code, § 352.) Further, a trial court " 'has considerable discretion 

to control the form in which the expert is questioned to prevent the jury from learning of 

incompetent hearsay.' (People v. Price (1991) 1 Cal.4th 324, 416 . . . .)" (People v. 

Gardeley, supra, 14 Cal.4th at p. 619.) Trial courts seem to have lost sight of these 

principles with respect to gang evidence and reviewing courts should carefully scrutinize 

their rulings under Evidence Code section 352. To avoid undue prejudice from gang 

evidence not admitted for its truth, trial courts may find it necessary in certain cases to 

require counsel to examine its gang expert in the form of hypothetical questions. (See 

People v. Xue Vang (2011) 52 Cal.4th 1038, 1048 [an expert may "express an opinion, 

based on hypothetical questions that tracked the evidence, whether the [crime], if the jury 

found it in fact occurred, would have been for a gang purpose"]; see also Williams v. 

Illinois, supra, 132 S.Ct. at p. 2228 (plur. opn. of Alito, J.) ["Under settled evidence law, 

an expert may express an opinion that is based on facts that the expert assumes, but does 

not know, to be true. It is then up to the party who calls the expert to introduce other 

evidence establishing the facts assumed by the expert. While it was once the practice for 

an expert who based an opinion on assumed facts to testify in the form of an answer to a 

hypothetical question, modern practice does not demand this formality and, in 

appropriate cases, permits an expert to explain the facts on which his or her opinion is 

based without testifying to the truth of those facts. [Citation.]".) In this appeal, however, 

defendants are not challenging any adverse ruling under Evidence Code section 352.
82

does not allow a particular out-of-court statement to be considered in its appropriate 

context with regard to whether it is in fact testimonial.

In the absence of a timely and specific objection to a particular statement on 

confrontation grounds, which places the burden on the government to establish the 

admissibility of the statement (cf. Idaho v. Wright (1990) 497 U.S. 805, 816 [110 S.Ct. 

3139] [the state, as the proponent of evidence presumptively barred by confrontation 

clause, has burden of proof]), reviewing courts should not presume that an out-of-court 

statement given to a law enforcement officer under unclear circumstances, possibly 

without testimonial purpose, is testimonial. (See Denham v. Superior Court (1970) 2 

Cal.3d 557, 564 [error must be affirmatively shown].)

Out-of-court statements obtained by law enforcement officers during criminal 

interrogations in the course of an investigation of past crime under nonemergency 

circumstances or in preparation for trial are presumably testimonial. (See Crawford, 

supra, 541 U.S. 36, 52 ["Statements taken by police officers in the course of 

interrogations are also testimonial under even a narrow standard"].) Statements given to 

police for other purposes, however, may not be testimonial. (See Davis v. Washington, 

supra, 547 U.S. at p. 822 [statement is not testimonial where "primary purpose of the 

interrogation is to enable police assistance to meet an ongoing emergency"]; Michigan v. 

Bryant, supra, 131 S.Ct. at p. 1155 [statement is not testimonial where it is "not procured 

with a primary purpose of creating an out-of-court substitute for trial testimony"].) 

Where the primary purpose of questioning by law enforcement is not to "establish or 

prove past events potentially relevant to later criminal prosecution" (Davis v. 

Washington, supra, 547 U.S. at p. 822, fn. omitted), perhaps such as where information is 

provided to merely deter future criminal activity or maintain institutional security or the 

safety of those incarcerated, the statement may not be testimonial and not implicate the 

Sixth Amendment's confrontation clause.
83

In his dissenting opinion, Presiding Justice Rushing assumes that most, if not all, 

of the extrajudicial gang-related statements conveyed by Sergeant Livingston were 

testimonial. His assumption demonstrates the vital importance of requiring a timely and 

specific confrontation objection to identified evidence and the wisdom of not treating 

sweeping motions to exclude a nebulous body of out-of court statements relied upon by 

an expert in reaching an opinion as preserving a claim of Crawford error as to any such 

statement ultimately admitted. The People should be given the opportunity to show that a 

particular out-of-court statement that will by disclosed by its expert is not testimonial in 

response to a specific and timely confrontation objection.

Justice Rushing also assumes that unreported side bar conferences or unspecified 

objections involved the confrontation issue. "Under California law, error in admitting 

evidence may not be the basis for reversing a judgment or setting aside a verdict unless 

'an objection to or a motion to exclude or to strike the evidence . . . was timely made and 

so stated as to make clear the specific ground of the objection or motion.' (Evid. Code, 

§ 353, subd. (a), italics added.) 'In accordance with this statute, [the California Supreme 

Court has] consistently held that the "defendant's failure to make a timely and specific 

objection" on the ground asserted on appeal makes that ground not cognizable. 

[Citation.]' (People v. Seijas (2005) 36 Cal.4th 291, 302.) Although no 'particular form 

of objection' is required, the objection must 'fairly inform the trial court, as well as the 

party offering the evidence, of the specific reason or reasons the objecting party believes 

the evidence should be excluded, so the party offering the evidence can respond 

appropriately and the court can make a fully informed ruling.' ([People v. Partida (2005) 

37 Cal.4th 428,] 435.)" (People v. Zamudio (2008) 43 Cal.4th 327, 354; see Assem. 

Com. on Judiciary com, 29B, Pt.1A West's Ann. Evid. Code (2011 ed.) foll. § 353, p. 

599.) "A general objection to the admission or exclusion of evidence, or one based on a 

different ground from that advanced at trial, does not preserve the claim for appeal." 
84

(People v. Marks (2003) 31 Cal.4th 197, 228; but see People v. Boyer (2006) 38 Cal.4th 

412, 441, fn. 17 [but a new constitutional claim may be considered on appeal if defendant 

is merely asserting that "the trial court's act or omission, insofar as wrong for the reasons 

actually presented to that court, had the additional legal consequence of violating the 

Constitution"; the reviewing court's "rejection, on the merits, of a claim that the trial court 

erred on the issue actually before that court necessarily leads to rejection of the newly 

applied constitutional 'gloss' as well"].) In general, where a defendant does not expressly 

object on confrontation grounds at trial, the constitutional claim is not preserved for 

appeal. (See Melendez-Diaz v. Massachusetts, supra, 557 U.S. at p. 314, fn. 3; People v. 

Catlin (2001) 26 Cal.4th 81, 138, fn. 14; Evid. Code, § 353.)

Although confrontation concerns were repeatedly mentioned, defendants Hensley 

and Rodriguez have not pointed to any particular out-of-court statement admitted into 

evidence after a timely and specific confrontation objection was overruled by the court. 

Although defendant Hensley's counsel objected to an out-of-court statement made by the 

defendant's ex-girlfriend's mother regarding his gang membership, counsel did not 

specifically object on confrontation grounds.16 Defendant Zavala's counsel raised a 

 

16 On the record before us, it is not completely out of the realm of possibility that this 

particular statement was made in an emergency context and, therefore, not testimonial 

since the police report stated that defendant Hensley's ex-girlfriend and her mother were 

in fear for their safety. (See Davis, supra, 547 U.S. at p. 822.) Moreover, Hensley's 

counsel merely complained on the record that counsel "did not know how any expert can 

give [such a statement] any kind of weight" with respect to gang membership. The U.S. 

Supreme Court has not held that an expert's mere reliance on out-of-court statements in 

forming an opinion violates the confrontation clause. (See Williams v. Illinois, supra, 

132 S.Ct. at p. 2238, fn. omitted (plur. opn. of Alito, J.) [lack of independent proof of the 

extrajudicial basis of an expert's opinion may render it irrelevant but "the Confrontation 

Clause, as interpreted in Crawford, does not bar the admission of irrelevant evidence, 

only testimonial statements by declarants who are not subject to cross-examination"], 

2257, fn. omitted (concurring opn. of Thomas, J.) ["It is the expert's disclosure of those 

[extrajudicial] facts that raises Confrontation Clause concerns."].) We query whether the 

paucity of independent evidence to establish the truth of the extrajudicial underpinnings 
85

confrontation objection concerning Moneyhun's and Stojkovic's statements to police and 

the trial court ultimately ruled that Sergeant Livingston could not refer to their statements 

regarding defendants Zavala's and Rodriguez's planning of the robbery. Although 

defendant Zavala's counsel also objected to the admission of evidence of the details of the 

"pattern offenses," the basis of that objection was not preserved on the record. 

Defendants have forfeited all Sixth Amendment confrontation claims except to the extent 

that their "claims rely on the same facts and legal standards the trial court itself was asked 

to apply . . . ." (People v. Riccardi (2012) 54 Cal.4th 758, 801.) It bears repeating that 

the trial court granted the only in limine Crawford motion, which was brought by 

defendant Zavala and directed at Moneyhun's statements.

Also, to the extent defendants failed to secure rulings on their confrontation 

concerns, they were not preserved for appellate review. "As [the California Supreme 

Court has] held, '[f]ailure to press for a ruling on a motion to exclude evidence forfeits 

appellate review of the claim because such failure deprives the trial court of the 

opportunity to correct potential error in the first instance. [Citation.]' (People v. Lewis

(2008) 43 Cal.4th 415, 481; see also People v. Morris (1991) 53 Cal.3d 152, 195 

 

of an expert's opinion goes to only its weight. (Cf. Delaware v. Fensterer (1985) 474 

U.S. 15 [106 S.Ct. 292] (per curiam), 22 [admission of an expert's opinion "did not 

offend the Confrontation Clause despite his inability to recall the basis for that opinion" 

because an expert's "inability to recall on the stand the basis for his opinion presents none 

of the perils from which the Confrontation Clause protects defendants in criminal 

proceedings" and "the Confrontation Clause is generally satisfied when the defense is 

given a full and fair opportunity to probe and expose these infirmities through crossexamination, thereby calling to the attention of the factfinder the reasons for giving scant 

weight to the witness' testimony"], 22 ["[N]othing in the Federal Constitution forbids the 

conclusion reached by the trial court in this case: that the expert's inability to recall the 

basis for his opinion went to the weight of the evidence, not its admissibility. 

[Citations.]"], 22-23 [declining to "decide whether the introduction of an expert opinion 

with no basis could ever be so lacking in reliability, and so prejudicial, as to deny a 

defendant a fair trial"].)
86

[defendant forfeited appellate challenge to admission of testimony by failing 'to press for' 

a ruling 'until he obtained one'].)" (People v. Valdez (2012) 55 Cal.4th 82, 143.)

The U.S. Supreme Court has stated that the "States may adopt procedural rules 

governing the exercise of [confrontation] objections." (Melendez-Diaz v. Massachusetts, 

supra, 557 U.S. at p. 314, fn. 3.) We cannot overstate the importance of having a 

governing rule that demands timely, specific, and on-the-record confrontation objections 

to identified out-of-court statements. Where such an objection is made, the prosecution 

has the opportunity to show that a particular out-of-court statement is not testimonial and 

the trial court can then determine, in the first instance and in the appropriate context, 

whether the challenged statement is testimonial. Such a procedure is even-handed and 

orderly and might reduce appeals raising confrontation claims in California.

5. Constitutional Right to Confrontation

Even assuming defendants' confrontation objections were fully preserved for 

appeal, we find no basis for reversal.

The trial court did overrule defendant Zavala's confrontation objection to Sergeant 

Livingston's testimony explaining that his opinion that the crime was gang-related was 

based in part on "prior contacts, speaking with other people, reviewing police reports" 

indicating that the two primary people planning the crime were defendants Zavala and 

Rodriguez, two influential members of Shalu Gardens. The essence of Zavala's objection 

was that Livingston's testimony implied that other nontestifying witnesses had made 

statements to police concerning their planning of the crime. The trial court could 

properly reject that argument since R.B. had already testified to the planning of the 

robbery and Sergeant Livingston did not allude to any other statement by a nontestifying 

witness to the planning of the robbery. Defendants have not pointed to any trial 

testimony recounting Moneyhun's or Stojkovic's statements to police concerning that 

planning.
87

The trial court also overruled defendant Zavala's express confrontation objection 

to two out-of-court statements concerning the defendant's membership in the SLG gang, 

which were made to officers responding to a reported disturbance on November 19, 2005. 

Sergeant Livingston was one of the responding officers. The basis evidence was 

explicitly not admitted for its truth.17

In this case, the trial court permitted Sergeant Livingston to testify to the 

extrajudicial basis of his opinion as a gang expert based on principles of California law. 

(See People v. Gardeley, supra, 14 Cal.4th at pp. 617-619 [gang expert "could reveal the 

information on which he had relied in forming his expert opinion, including hearsay"].) 

"Expert testimony may . . . be premised on material that is not admitted into evidence so 

long as it is material of a type that is reasonably relied upon by experts in the particular 

 

17 We take note that matters within the sergeant's personal knowledge established a 

strong basis for Sergeant Livingston to believe that defendants Zavala and Rodriguez 

were SLG gang members. They both had gang-related tattoos and SLG gang indicia 

associated with them was found during searches in which Sergeant Livingston was 

personally involved. Sergeant Livingston was one of the responding officers to the 

November 19, 2005 incident involving a reported disturbance by a large group and 

defendants Zavala and Rodriguez, who were part of the group, were dressed in gangrelated attire. In addition, defendant Hensley admitted at trial that he knew defendants 

Zavala and Rodriguez were Nortenos. While "[n]ot every crime committed by gang 

members is related to a gang" (People v. Albillar (2010) 51 Cal.4th 47, 60), where 

defendants "actively assist[] each other in committing crimes" and "their common gang 

membership ensure[s] that they can rely on each other's cooperation in committing these 

crimes," there may be substantial evidence to find that the "defendants came together as 

gang members" to commit crimes and, accordingly, "they committed these crimes in 

association with the gang. [Citations.]" (Id. at p. 62.) As to defendant Hensley, it is 

important to remember that the gang enhancement established by section 186.22(b)(1) 

"does not depend on membership in a gang at all." (Id. at p. 68.) "Rather, it applies when 

a defendant has personally committed a gang-related felony with the specific intent to aid 

members of that gang." (Ibid.) "[I]f 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 gang members." (Ibid.)
88

field in forming their opinions. [Citations.]" (Id. at p. 618.) "[B]ecause Evidence Code 

section 802 allows an expert witness to 'state on direct examination the reasons for his 

opinion and the matter . . . upon which it is based,' an expert witness whose opinion is 

based on such inadmissible matter can, when testifying, describe the material that forms 

the basis of the opinion. [Citations.]" (Id. at pp. 618-619.)

An out-of-court statement is not "hearsay evidence" if it is not admitted for the 

truth of the matter stated. (Evid. Code, § 1200, subd. (a); see Sen. Com. on Judiciary 

com., 29B, Pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 1200, p. 4 [A "statement that 

is offered for some purpose other than to prove the fact stated therein is not hearsay. 

[Citations.]"]; cf. Fed. Rules of Evid., rule 801(c).) The California Supreme Court has 

established that an expert witness's recitation of out-of-court statements for the 

nonhearsay purpose of showing the basis of the expert's opinion "does not transform 

inadmissible matter into 'independent proof' of any fact. [Citations.]"18 (People v. 

Gardeley, supra, 14 Cal.4th at p. 619.) Here, the trial court repeatedly admonished the 

jury that the out-of-court statements relied upon by Sergeant Livingston could not be 

considered for the truth of the matters stated.

 

18 On appeal, defendants did not raise an insufficiency of the evidence claim, 

asserting that the evidence admitted for its truth was insufficient to support the criminal 

street gang enhancements. Accordingly, that issue is not before us. We nevertheless note 

that, in addition to the evidence mentioned ante, at footnote 17, Sergeant Livingston 

testified that he had personal contact with at least 10 separate SLG gang members and his 

opinion regarding SLG being a criminal street gang rested in part on the criminal 

histories of active gang members. Certified copies of two conviction packages were 

admitted into evidence. (See People v. Perez (2011) 195 Cal.App.4th 801, 804 [certified 

"prison packets" not testimonial]; People v. Larson (2011) 194 Cal.App.4th 832, 836-838 

[certified records of prior convictions not testimonial]; People v. Morris (2008) 166 

Cal.App.4th 363, 373 [certified California Law Enforcement System (CLETS) rap sheet 

not testimonial].) When considering a challenge to the sufficiency of the evidence to 

support a gang enhancement, appellate courts must review the entire record in the light 

most favorable to the judgment. (People v. Albillar, supra, 51 Cal.4th at pp. 59-60.)
89

The California Supreme did not effectively overturn or limit Gardeley in its 2012 

trio of Sixth Amendment confrontation cases: People v. Rutterschmidt (2012) 55 Cal.4th 

650, 661 [any confrontation clause violation in admitting toxicology analysis of victim's 

blood was harmless because evidence of guilt was overwhelming]; People v. Dungo

(2012) 55 Cal.4th 608, 621 [no confrontation violation since criminal investigation was 

not the primary purpose for the autopsy report's description of victim's body]; People v. 

Lopez (2012) 55 Cal.4th 569, 582 [critical portions of nontestifying analyst's laboratory 

report on defendant's blood alcohol concentration were not made with the requisite 

degree of formality or solemnity to be considered testimonial], 585 [notation in report 

linking defendant's name to blood sample was not prepared with the formality required 

for testimonial statements].) "[O]nly the ratio decidendi of an appellate opinion has 

precedential effect [citation] . . . ." (Trope v. Katz (1995) 11 Cal.4th 274, 287.) None of 

the above cases even mentioned Gardeley.

We are well aware that Gardeley did not address a Sixth Amendment 

confrontation issue. But it is important to recognize that under California law, the mere 

admission of evidence of the basis for an expert's opinion, for the limited purpose of 

assessing the soundness of the expert's reasoning, does not transform the evidence into 

independent proof of any fact. (People v. Gardeley, supra, 14 Cal.4th at p. 619.) We 

therefore remain obliged to follow Gardeley until a U.S. or California Supreme Court 

decision dictates a different result.

In Crawford, the U.S. Supreme Court confirmed, consistent with its prior decision 

in Tennessee v. Street (1985) 471 U.S. 409, 414 (105 S.Ct. 2078), that evidence not

admitted for the truth of the matter stated does not implicate a defendant's constitutional 

right of confrontation. (Crawford v. Washington, supra, 541 U.S. at p. 60, fn. 9; see 

Williams v. Illinois, supra, 567 U.S. at p. 2228] (plur. opn. of Alito, J.) ["Out-of-court 

statements related by the expert solely for the purpose of explaining the assumptions on 
90

which that opinion rests are not offered for their truth and thus fall outside the scope of 

the Confrontation Clause"]; but see id. at p. 2257 (opn. of Thomas, J., concurring in 

judgment) ["statements introduced to explain the basis of an expert's opinion are not 

introduced for a plausible nonhearsay purpose"]; id. at pp. 2268-2269 (dis. opn. of 

Kagan, J., joined by Scalia, Ginsburg, and Sotomayor, JJ.) [admission of an out-of-court 

statement to show the basis of an expert's conclusion "has no purpose separate from its 

truth"].) Post-Crawford, the California Supreme has stated: "Out-of-court statements 

that are not offered for their truth are not hearsay under California law (Evid. Code, § 

1200, subd. (a); Smith v. Whittier (1892) 95 Cal. 279, 293-294 . . .), nor do they run afoul 

of the confrontation clause. (See Crawford v. Washington (2004) 541 U.S. 36, 60, fn. 9, 

124 S.Ct. 1354, 158 L.Ed.2d 177.)" (People v. Ervine (2009) 47 Cal.4th 745, 775-776.) 

A plurality of the U.S. Supreme Court has observed that "there is simply no way around 

the proviso in Crawford that the Confrontation Clause applies only to out-of-court 

statements that are 'use[d]' to 'establis[h] the truth of the matter asserted.' 541 U.S., at 

59–60, n. 9, 124 S.Ct. 1354 . . . )." (Williams v. Illinois, supra, 132 S.Ct. at p. 2240 (plur. 

opn. of Alito, J.).)

"The crucial assumption underlying our constitutional system of trial by jury is 

that jurors generally understand and faithfully follow instructions. [Citation.]" (People v. 

Mickey, supra, 54 Cal.3d at p. 689, fn. 17; see Richardson v. Marsh (1987) 481 U.S. 200, 

211 [107 S.Ct. 1702] ["The rule that juries are presumed to follow their instructions is a 

pragmatic one, rooted less in the absolute certitude that the presumption is true than in the 

belief that it represents a reasonable practical accommodation of the interests of the state 

and the defendant in the criminal justice process"].) "[T]he assumption that jurors are 

able to follow the court's instructions fully applies when rights guaranteed by the 

Confrontation Clause are at issue. [Citation]" (Tennessee v. Street, supra, 471 U.S. 409, 

415, fn. 6 [admission of accomplice's confession for nonhearsay purpose accompanied by 
91

limiting instruction raised no confrontation clause concerns]; see Williams v. Illinois, 

supra, 132 S.Ct. at p. 2241 (plur. opn. of Alito, J.) [jury instruction that "out-of-court 

statements cannot be accepted for their truth" is safeguard against misuse].)

The Williams decision does not change our analysis. When the U.S. Supreme 

Court issues an opinion, "it is not only the result but also those portions of the opinion 

necessary to that result by which we are bound. [Citations.]" (Seminole Tribe of Florida 

v. Florida (1996) 517 U.S. 44, 67 [116 S.Ct. 1114], italics added.) "When a fragmented 

Court decides a case and no single rationale explaining the result enjoys the assent of five 

Justices, 'the holding of the Court may be viewed as that position taken by those 

Members who concurred in the judgments on the narrowest grounds . . . .' [Citation.]" 

(Marks v. U.S. (1977) 430 U.S. 188, 193 [97 S.Ct. 990], italics added (Marks).) As 

Justice Chin observed in his concurring opinion in People v. Dungo, supra, 55 Cal.4th 

608, "neither the plurality opinion nor Justice Thomas's concurring opinion [in Williams] 

can be viewed as a logical subset of the other. Indeed, to some extent they are 

contradictory." (Id. at p. 628 (conc. opn. of Chin, J.).) In Dungo, Justice Chin noted that 

"[i]t took a combination of two opinions—each containing quite different reasoning—to

achieve the majority result." (Ibid.) Further, as the California Supreme Court has stated 

concerning Williams, "dissenting opinions are not binding precedent. [Citations.]" 

(People v. Lopez, supra, 55 Cal.4th at p. 585.) We do not believe that the common view 

expressed in Justice Thomas's concurring opinion (in which no other justice joined) and 

the dissenting opinion in Williams, that the extrajudicial basis of an expert's opinion is 

necessarily considered for its truth, regardless of its admission for a nonhearsay purpose 

with a limiting instruction, may be taken as a holding of the U.S. Supreme Court since it 

is not yet the basis of any judgment.

While dicta or a dissenting opinion may signal the future direction of a court, 

especially when a view is subscribed to by a majority of justices presently on the court, 
92

we must follow the U.S. Supreme Court's binding precedents and leave to that court the 

prerogative of overruling its own decisions. (See Agostini v. Felton (1997) 521 U.S. 203, 

237-238 [117 S.Ct. 1997].) Lower courts must be cognizant that the justices' individual 

views and court membership may change. As Justice Liu has stated: "[N]ose-counting is 

a job for litigators, not jurists. As a court tasked with applying an evolving line of 

jurisprudence, our role is not simply to determine what outcome will likely garner five 

votes on the high court. Our job is to render the best interpretation of the law in light of 

the legal text and authorities binding on us." (People v. Lopez, supra, 55 Cal.4th at pp. 

593-594 (dis. opn. of Liu, J.).)

Every appellate justice is bound by controlling precedent, no matter how 

vehemently or persuasively the justice disagrees with it and no matter how accurately the 

justice can predict future high court decisions overturning or qualifying that precedent. 

The doctrine of stare decisis "permits society to presume that bedrock principles are 

founded in the law rather than in the proclivities of individuals, and thereby contributes to 

the integrity of our constitutional system of government, both in appearance and in fact." 

(Vasquez v. Hillery (1986) 474 U.S. 254, 265-266 [106 S.Ct. 617].)

"Courts exercising inferior jurisdiction must accept the law declared by courts of 

superior jurisdiction. It is not their function to attempt to overrule decisions of a higher 

court. [Citations.]" (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 

455.) "[Lower] [c]ourts are not at liberty to set aside or disregard the decisions of [the 

California Supreme] Court because it may seem to them that the decisions are unsound. 

Until reversed or modified by [the] Court, its decisions must be accepted by all inferior 

tribunals." (People v. McGuire (1872) 45 Cal. 56, 57-58.)

Of course, this court, like all state courts, is duty bound to follow the controlling 

precedent of the U.S. Supreme Court's decisions. (see U.S. Const., art. VI, cl. 2 

[supremacy clause]; People v. Fletcher (1996) 13 Cal.4th 451, 469, fn. 6 [The U.S. 
93

Supreme Court's "decisions on questions of federal constitutional law are binding on all 

state courts under the supremacy clause of the United States Constitution. [Citations.]"].) 

The United States Supreme Court has "final authority to determine the meaning and 

application" of the federal Constitution. (Pennekamp v. State of Fla. (1946) 328 U.S. 

331, 335 [66 S.Ct. 1029].) Its decisions on questions of federal law are "binding upon the 

state courts, and must be followed, any state law, decision, or rule to the contrary 

notwithstanding." (Chesapeake & O. Ry. Co. v. Martin (1931) 283 U.S. 209, 221 [51 

S.Ct. 453].)

We will not try to count potential votes of the justices on either the U.S. Supreme 

Court or the California Supreme Court. As of yet, there is no U.S. or California Supreme 

Court case holding that testimony regarding the basis for an expert's opinion, which was 

not admitted for its truth at trial, must nevertheless be regarded as admitted for its truth 

for purposes of the Sixth Amendment's right of confrontation even when a limiting 

instruction is given.19 Presently, binding precedent is to the contrary.

Like the trial court, we are bound by the decisions of higher courts regardless of 

our personal views. The trial court properly concluded that, under presently controlling 

law, extrajudicial statements not admitted for their truth, but only to show the basis for an 

expert's opinion, do not implicate the confrontation clause. (See Williams v. Illinois, 

supra, 132 S.Ct. at pp. 2228 (plur. opn. of Alito, J.) [It is "settled that the Confrontation 

 

19 We would agree that the current instruction regarding expert opinion testimony 

should be rewritten for the sake of clarity and avoiding potential misuse of evidence not 

admitted for its truth. But none of the defendants raised a claim of instructional error on 

appeal, arguing that the trial court erred by giving the standard instruction regarding 

expert testimony or refusing a different instruction that was requested by a defendant. Of 

course, counsel for defendants were free in closing argument to remind the jury that the 

"basis evidence" could not be considered for its truth and was not independent proof of 

any fact and to argue that Sergeant Livingston's opinions should be disregarded or given 

no weight because they were unsupported by the evidence admitted for its truth.
94

Clause does not bar the admission of statements not admitted for their truth"], 2235 (plur. 

opn. of Alito, J.) ["Crawford, while departing from prior Confrontation Clause precedent 

in other respects, took pains to reaffirm the proposition that the Confrontation Clause 

'does not bar the use of testimonial statements for purposes other than establishing the 

truth of the matter asserted.' [Citations.]"]; Crawford v. Washington, supra, 541 U.S. at 

p. 60, fn. 9 [The confrontation clause "does not bar the use of testimonial statements for 

purposes other than establishing the truth of the matter asserted. [Citation.]"]; Tennessee 

v. Street, supra, 471 U.S. 409, 413-414, 417 [extrajudicial accomplice confession 

introduced not for its truth, but for nonhearsay purpose of assessing defendant's testimony 

that his own confession was coerced, raised no confrontation clause concerns]; People v. 

Ervine, supra, 47 Cal.4th at p. 776; People v. Thomas (2005) 130 Cal.App.4th 1202, 

1209-1210; cf. People v. Hill (2011) 191 Cal.App.4th 1104, 1127-1128, 1131.)

E. "Hidden Testimonial Hearsay" and the Right to Jury Trial

Defendant Rodriguez indicates that Sergeant Livingston "did not precisely identify 

all the sources for his opinion . . . ." He contends that the admission of expert testimony 

predicated on "hidden testimonial hearsay" not revealed to the jury violates the 

defendant's right to a jury trial as construed in Apprendi v. New Jersey (2000) 530 U.S. 

466 [120 S.Ct. 2348] (Apprendi). Defendant Rodriguez declares an expert witness 

relying on testimonial hearsay has "ipso facto determined that the hearsay is reliable, i.e. 

true," but the "right to jury trial makes the jury the only arbiter of whether reliability has 

been established." He argues that "the trial court's error in permitting the gang expert to 

rely on testimonial hearsay had the additional legal consequence of infringing [his] right 

to jury trial."

Defendant Rodriguez forfeited this challenge to the admission of the expert's 

testimony by not objecting on these grounds below. (Evid. Code, § 353.) In any case, it 

is without merit.
95

The Sixth Amendment to the U.S. Constitution guarantees criminal defendants a 

trial by jury and that right applies to the states through the Fourteenth Amendment 

(Duncan v. Louisiana (1968) 391 U.S. 145, 150 [88 S.Ct. 1444]). Apprendi held: "Other 

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond 

the prescribed statutory maximum must be submitted to a jury, and proved beyond a 

reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) "[T]he 'statutory maximum' 

for Apprendi purposes is the maximum sentence a judge may impose solely on the basis 

of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] . . . 

When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has 

not found all the facts 'which the law makes essential to the punishment' [citation], and 

the judge exceeds his proper authority." (Blakely v. Washington (2004) 542 U.S. 296, 

303-304 [124 S.Ct. 2531].) Defendant Rodriguez has failed to identify any fact found 

true by the judge that increased the penalty beyond the statutory maximum based on the 

facts reflected in the jury's verdicts.

"The purpose of trial by jury . . . is to prevent government oppression by providing 

a 'safeguard against the corrupt or overzealous prosecutor and against the compliant, 

biased, or eccentric judge.' [Citation.]" (Burch v. Louisiana (1979) 441 U.S. 130, 135 

[99 S.Ct. 1623].) Defendant Rodriguez has not cited any authority establishing that

admission of an expert opinion without disclosing to the jury its entire testimonial 

hearsay basis, including the declarants, implicates the constitutional right to jury trial. 

(See ante, fn. 16.)

F. Judicial Assurance that Witness French's Address Would Not Be Disclosed

Defendant Hensley contends that the trial court violated his right to due process 

and a fair trial by improperly injecting itself into the case by assuring French that the 

witness's then current address would not be disclosed. He asserts that "[o]nly if the 
96

defendants were guilty could French need assurance that no one would learn where he 

lived and therefore his testimony would not endanger him."

At trial, the prosecutor asked witness French whether he lived in Campbell at the 

time of the incident. The prosecutor then asked French to confirm that he did not live 

there anymore. The court interjected, "Just whether or not you live in that house in 

Campbell." French indicated that he longer lived there. The prosecutor inquired, 

"Without asking where you live, you live in another state right now?" French responded, 

"Sir?" The court then asked, "Do you live in California?" French replied, "No." The 

court then stated, "No one's going to get your address." The prosecutor then asked 

whether this case was the cause of or a reason for defendant's move.

"A court commits misconduct if it creates the impression that it is denigrating the 

defense or otherwise allying itself with the prosecution. [Citation.]" (People v. Houston

(2012) 54 Cal.4th 1186, 1219.) But a defendant forfeits a claim of judicial misconduct if 

the defendant fails to object or request a curative admonition in the trial court. (Id. at p. 

1231.) Defendant Hensley's claim of judicial misconduct was forfeited because there was 

no defense objection and request for admonition.

Defendant Hensley alternatively argues that his trial counsel provided ineffective 

assistance of counsel by failing to object to the court's comment. He has not made the 

requisite showing of either deficient performance or prejudice. (See Strickland v. 

Washington (1984) 466 U.S. 668, 687-689, 694, 700 [104 S.Ct. 2052]; see also 

Harrington v. Richter (2011) ___ U.S. ___, ___ [131 S.Ct. 770, 791-792].)

First, it does not appear his counsel had a basis to object. A trial judge has the 

duty "to control all proceedings during the trial, and to limit the introduction of evidence 

and the argument of counsel to relevant and material matters, with a view to the 

expeditious and effective ascertainment of the truth regarding the matters involved." 

(§ 1044.) The judicial comment appears to fall within the court's proper authority.
97

Further, the decision whether to object is inherently tactical and a failure to object 

rarely establishes ineffective assistance of counsel. (People v. Lopez (2008) 42 Cal.4th 

960, 972.) A defendant has the burden of demonstrating there was no tactical reason for 

his counsel's failure to object and the objection would have been meritorious. (People v. 

Mattson (1990) 50 Cal.3d 826, 876.)

Even assuming arguendo that defense counsel should have objected, defendant 

Hensley's ineffective assistance claim fails. The court instructed the jury: "Do not take 

anything I said or did during the trial as an indication of what I think about the evidence, 

the witnesses, or what your verdict should be." Hence, there is no reasonable probability 

that the result of the proceeding would have been different had defendant Hensley's 

counsel objected to the court's comment to witness French. (See Strickland v. 

Washington, supra, 466 U.S. at p. 694 ["defendant must show that there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the proceeding 

would have been different"]; Harrington v. Richter, supra, 131 S.Ct. at p. 792 ["The 

likelihood of a different result must be substantial, not just conceivable. [Citation.]"].)

G. Anonymous Threat

At trial, French repeatedly denied receiving a death threat message on his cell 

phone or telling an officer that he had. He denied telling an officer that he was hiding at 

a friend's house because he was scared for his life. French did admit, however, that he 

had told the prosecutor that he was scared and he did not want to come to court. Without 

objection, Officer Rogers testified that, on July 25, 2008, he contacted French at another 

residence, where French was holed up in a back bedroom with the lights off. French 

explained that he was at that location because "he was scared for his life and he didn't 

want to stay home." French told the officer that he had received a voice mail death threat 

on his phone, which stated, "You're dead. We're coming after you."
98

Defendant Hensley maintains that evidence of the threat was irrelevant and 

inadmissible because French denied being afraid at trial and its admission violated due 

process. These claims were not preserved (Evid. Code, § 353) and, in any case, they are 

without merit. " 'Evidence that a witness is afraid to testify or fears retaliation for 

testifying is relevant to the credibility of that witness and is therefore admissible. 

[Citations.] An explanation of the basis for the witness's fear is likewise relevant to her 

credibility and is well within the discretion of the trial court. [Citations.]' [Citations.] 

Evidence of possible intimidation would help explain why the witnesses might repudiate 

earlier truthful statements." (People v. Gonzalez (2006) 38 Cal.4th 932, 946; see Evid. 

Code, §§ 210, 351; see also Evid. Code, §§ 785, 1235.) "For such evidence [of the basis 

for a witness's fear] to be admissible, there is no requirement to show threats against the 

witness were made by the defendant personally or the witness's fear of retaliation is 

'directly linked' to the defendant. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 

1142, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)

Defendant Hensley also argues that the trial court's failure to give a limiting 

instruction violated his due process and jury trial rights, citing People v. Collie (1981) 30 

Cal.3d 43, where the Supreme Court theorized "[t]here may be an occasional 

extraordinary case in which unprotested evidence of past offenses is a dominant part of 

the evidence against the accused, and is both highly prejudicial and minimally relevant to 

any legitimate purpose." (Id. at p. 64.) Trial courts generally have no duty to give a 

limiting instruction sua sponte. (People v. Valdez, supra, 55 Cal.4th 82, 139; see Evid. 

Code, § 355.) As in Valdez, the "[d]efendant's reliance on Collie fails because the 

evidence of the witnesses' fear was more than minimally relevant to a legitimate purpose 

. . . and was not 'a dominant part of the evidence against' defendant. [Citation.]" (Id. at p. 

139 [no sua sponte duty to give limiting instruction that evidence of witnesses' fear in 
99

testifying could be considered only to assess credibility].) The trial court did not err by 

failing to give a limiting instruction.

Defendant Hensley finally argues that his counsel's failure to request a limiting

instruction constituted ineffective assistance. We reject this claim since defense counsel 

may have made a tactical decision not to request a limiting instruction because it might 

draw the jurors' attention to the threat and increase the risk that they would credit 

French's incriminating testimony or improperly attribute the threat to the defendant. (See 

People v. Maury (2003) 30 Cal.4th 342, 394 ["A reasonable attorney may have tactically 

concluded that the risk of a limiting instruction . . . outweighed the questionable benefits 

such instruction would provide. [Citation.]"].) In any case, no prejudice has been shown 

since defendant Hensley testified to his participation in the crimes and, given the 

evidence, there is no reasonable probability that any defendant would have obtained a 

more favorable result if a limiting instruction had been given. (See Strickland v. 

Washington, supra, 466 U.S. at pp. 687-689, 694, 700; Harrington v. Richter, supra, 131 

S.Ct. at pp. 791-792].)

H. Codefendants' Arguments

Defendants Hensley and Rodriguez join in all appellate arguments made by others 

insofar as those arguments would benefit them. We have found no reversible errors.

I. Cumulative Impact of Alleged Errors

Defendants assert that the cumulative impact of alleged errors deprived them of a 

fundamentally fair trial consistent with due process. We recognize that "a series of trial 

errors, though independently harmless, may in some circumstances rise by accretion to 

the level of reversible and prejudicial error. [Citations.]" (People v. Hill (1998) 17 

Cal.4th 800, 844 -845.) That is not the situation in this case. Defendants were "entitled 

to a fair trial but not a perfect one. [Citations.]" (People v. Cunningham (2001) 25 

Cal.4th 926, 1009.)
100

DISPOSITION

The judgments are affirmed.

______________________________

ELIA, J.

I CONCUR:

_____________________________

PREMO, J.
1

RUSHING, P.J., Dissenting 

I respectfully dissent. I believe the trial court erred by permitting a police ―gang 

expert‖ to recite numerous incriminating extrajudicial statements which had been 

gathered by police officers while investigating criminal street gangs and their activities. 

They were admitted on the rationale that the jury would not take them as proof of their 

contents but only to help in evaluating the gang expert‘s opinion that the defendants were 

members or associates of a gang and that the robbery jointly carried out by them was 

committed for the benefit of, or in association with, a gang. I would hold that the 

California practice of admitting such statements regardless of their testimonial or 

nontestimonial character violates a defendants‘ rights under the confrontation clause of 

the United States Constitution as applied in Crawford v. Washington (2004) 541 U.S. 36 

(Crawford), and its progeny. I do not believe this conclusion is foreclosed by any 

paramount authority, and I believe it is consistent with the opinions of a majority of 

members of the United States Supreme Court. Nor do I believe defendants can fairly be 

held to have forfeited their confrontation clause objections by failing to repeat them often 

enough in the trial court. The admission of these statements was therefore constitutional 

error. Because there is little other evidence that this garden-variety robbery of a drug 

dealer was committed in association with or for the benefit of a criminal street gang, I am 

unable to declare the admission of this evidence harmless beyond a reasonable doubt. I 

would therefore reverse the judgment.

I. Preservation of Objection

The testimony in question has been referred to as ―basis evidence,‖ i.e., hearsay or 

other incompetent evidence admitted on the rationale that it is not introduced to establish 

its substantive content but only to demonstrate the basis for an expert opinion. (See 

People v. Hill (2011) 191 Cal.App.4th 1104, 1127; Williams v. Illinois (2012) ___ U.S. 

___ (Williams) [132 S.Ct. 2221, 2239, 2258, 2269, 2271].) The question is whether such 
2

evidence, when otherwise violative of a defendant‘s right to confront his or her accusers, 

is nonetheless admissible under this rationale. The majority seems to conclude that 

defendants failed to adequately raise this issue in the trial court with respect to some or 

all of the statements now complained of. (See maj. opn. at pp. 78-86, ante.) In my view 

the record amply establishes that the objection was repeatedly brought to the attention of 

the trial court, which overruled it both expressly and impliedly. That is all the law 

requires, and all it should require, to avoid a forfeiture of the objection.

―To preserve an evidentiary issue for appeal, the complaining party generally is 

required to make a timely and meaningful objection in the trial court. (Evid.Code, § 353, 

subd. (a).) The purpose of this rule  ̳is to encourage a defendant to bring any errors to the 

trial court‘s attention so the court may correct or avoid the errors and provide the 

defendant with a fair trial.‘ (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060.) 

Thus, an objection will be deemed sufficient so long as it  ̳fairly apprises the trial court of 

the issue it is being called upon to decide. [Citations.]‘ (People v. Scott (1978) 21 Cal.3d 

284, 290.)‖ (People v. Carrillo (2004) 119 Cal.App.4th 94, 101.) 

Here defendants repeatedly objected to basis evidence while invoking the 

confrontation clause as articulated under Crawford. In his written motion in limine, 

defendant Hensley asserted, ―It would be improper for the prosecution to use the gang 

expert to establish necessary elements of the offense or the gang enhancement as a 

substitute for testimony by percipient witnesses, and in a manner which may violate 

defendant‘s fundamental rights of due process, confrontation and a fair trial as guaranteed 

by the Sixth and Fourteenth Amendments to the United States Constitution.‖ At the 

ensuing hearing, defendant Zavala raised a confrontation-clause objection to any 

extrajudicial statements by Kyle Moneyhun, and more generally urged the confrontation 

clause as a ground to bifurcate trial of the gang enhancements from the underlying 

charges. The prosecutor manifestly understood the scope of the objection, arguing that 
3

Crawford did not apply because any extrajudicial statements repeated by Livingston 

would be offered only as a basis for his opinion and not as proof of their contents. In a 

further written motion in limine, Zavala again objected on confrontation grounds to any 

statements by Moneyhun and also to ―hearsay reports that Zavala and Rodriguez planned 

the crime and that Zavala threatened to kill a victim or a witness.‖

The trial court appeared to understand that the application of the confrontation 

clause was at issue with respect to all extrajudicial statements Livingston might relate. 

The court exhibited this understanding when counsel for defendant Hensley objected to 

evidence that the mother of his client‘s girlfriend had identified Hensley as a Norteño 

gang member. Counsel failed to specify any statutory or constitutional ground for the 

objection, stating only that he did not ―know how any expert can give [such a statement] 

any kind of weight‖ in determining a defendant‘s gang membership. But the court stated 

that in determining the admissibility of that and similar statements, the ―question 

becomes whether or not the statement by the girlfriend‘s mother is testimonial in my 

view; or despite the fact that it‘s the type of thing that is relied upon by experts, it has no 

relevance unless it‘s true, and that, therein, lies the issue.‖ Counsel for Zavala then 

referred to ―at least three or four such incidents where Sergeant Livingston intended to 

testify . . . , where Sergeant Livingston was told by single individuals that Mr. Zavala was 

the shot-caller or the leader in SLG; that he was one of the three top leaders of SLG; and 

that he was in SLG; each one relying on the statement of a single witness who was not 

present and which was not corroborated by anything else at the time that the statements 

were made.‖ Counsel went on to give details of those particular statements, concluding, 

―There are at least those three that I can recall, where he relies specifically on the 

statements by a single individual. [¶] And . . . I move to include those within my motion 

. . . to exclude for the reasons given in the in limine motion.‖ After some further 

colloquy the court stated, ―I think the issue is whether—if Crawford says you can‘t admit 
4

this evidence that otherwise would be admissible because it violates confrontation clause, 

does that ruling apply in the context of an expert relying on that statement?‖ Counsel for 

Zavala agreed: ―That is, indeed, the issue.‖ The prosecutor agreed that this was the issue 

being raised by defendants, but stated that a ―fair, close reading‖ of the cases would 

disclose that ―it‖ (the confrontation clause) was ―not applicable to this situation.‖ He 

agreed with the court‘s observation that, under this view, ―it then becomes a 352 issue,‖ 

i.e., a question of discretionary exclusion under Evidence Code section 352.

The court clearly adopted the prosecution‘s view of the confrontation question. 

The trial included a number of unreported sidebar conferences, some of which almost 

certainly concerned these issues.1 On at least one occasion, counsel for Zavala explicitly 

urged the confrontation clause against particular testimony of the type at issue—

specifically, recapitulated statements reportedly made to police officers by third parties 

during an encounter with a group of men including defendants Zavala and Rodriguez. 

 

1

 My colleagues describe me as ―assum[ing]‖ that some of the sidebar 

conferences concerned confrontation issues. (Maj. Opn., ante at p. 83.) This is not an 

assumption but an inference I draw from the circumstances in which the conferences took 

place. The fact that these conferences were not recorded or otherwise memorialized is 

quite troubling. It is true that a court reporter is only required to transcribe proceedings if 

requested to do so. (See Code Civ. Proc., § 269, subd. (a)(2) [reporter must take down all 

proceedings in felony case ―on the order of the court or at the request of the prosecution, 

the defendant, or the attorney for the defendant‖]; see People v. Manson (1976) 61 

Cal.App.3d 102, 214 [―In the absence of request that a record be made of a conference 

between court and counsel, none is required.‖].) Here, however, counsel for defendant 

Zavala objected to the court‘s practice of requiring all evidentiary objections to be 

addressed in unrecorded sidebar conferences. Counsel asserted, quite reasonably I think, 

that ―it is just too difficult, in the heat of battle as it were, to remember all of the precise 

objections that are made and deferred to some later time when we have time‖ to put them 

on the record. The court refused to diverge from its practice, which had ―served [it]

well,‖ of excusing the reporter from recording such conferences and casting the burden 

upon counsel to memorialize their contents by recital when opportunity arose. This clear 

violation of the statutory mandate has not been urged as error on appeal, but that hardly 

requires us to compound it by citing the very deficiencies of which counsel quite properly 

complained in support of our imposition of an appellate forfeiture.
5

The court overruled the objection. The record amply demonstrates that the court would 

have ruled similarly on any other specific objection on this ground. ―The duty to object 

will be excused when an  ̳objection or request for admonition would have been 

futile . . . .‘ (People v. McDermott (2002) 28 Cal.4th 946.)‖ (People v. Carrillo, supra, 

119 Cal.App.4th 94, 100-101.) ―  ̳Where a party has once formally taken exception to a 

certain line or character of evidence, he is not required to renew the objection at each 

recurrence thereafter of the objectionable matter arising at each examination of other 

witnesses; and his silence will not debar him from having the exception reviewed.‘ ‖ (3 

Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 393, p. 549, quoting Green 

v. Southern Pac. Co. (1898) 122 Cal. 563, 565.)

In sum, I cannot conclude that defendants forfeited their objections under the 

confrontation clause. The rule of Crawford pervaded the pretrial proceedings and was 

clearly understood by both the trial court and the prosecutor to be at the heart of 

defendants‘ objections to Sergeant Livingston‘s recital of extrajudicial statements.2 The 

trial court‘s rulings plainly demonstrate that it viewed Crawford as posing no impediment 

whatever to testimony of the type at issue. It follows that any further objections on that 

score, however technically perfect, would have been futile. Accordingly, I deem the 

point available on appeal.

II. Stare Decisis

Perhaps the strangest question posed by this case is whether the California 

Supreme Court‘s decision in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), 

somehow precludes us from sustaining defendants‘ confrontation clause objections. The 

answer should be an obvious negative, because Gardeley—which was decided some 

 

2

 Nor does respondent suggest otherwise. Rather, in a supplemental brief 

respondent states, ―During the [Evidence Code section 402] hearing and at trial, 

appellants repeatedly challenged the proposed testimony on confrontation grounds.‖ 
6

eight years before Crawford reshaped the confrontation clause landscape—does not 

address, consider, or even mention that clause. ―  ̳ ―It is axiomatic that language in a 

judicial opinion is to be understood in accordance with the facts and issues before the 

court. An opinion is not authority for propositions not considered.‖ ‘ [Citation.]  ̳An 

appellate decision is not authority for everything said in the court‘s opinion but only ―for 

the points actually involved and actually decided.‖ ‘ [Citation.]‖ (People v. Knoller

(2007) 41 Cal.4th 139, 154-155.) Yet the majority treats Gardeley as binding authority 

on this subject. (Maj. Opn. at pp. 91-92, 94, ante.) And it is not the first court to do so. 

(See People v. Hill, supra, 191 Cal.App.4th 1127-1128.)3

Although the precise manner in which the relevant issues were framed in Gardeley

is less than entirely clear from that opinion, it appears that the only evidentiary issue the 

court actually addressed was the competence of expert testimony, founded on 

extrajudicial statements not admissible in their own right, to establish elements of a gang 

enhancement. A hearsay objection had been lodged in the trial court when a gang expert 

was asked about certain extrajudicial statements made to him by a particular person. In 

overruling that objection, the trial court ―informed the jury that certain  ̳hearsay‘ would 

be introduced,‖ and that the jury was not to consider these statements ―for the truth of the 

matter, but only as they give rise . . . to the expert opinion . . . .‖ (Gardeley, supra, 14 

Cal.4th at p. 612.) Nowhere does the opinion indicate that this ruling, as such, was 

charged as error on appeal. Rather the matter came before the Supreme Court on the 

 

3

 Indeed, I am sorry to say that among the many unpublished decisions relying on 

Gardeley in this context, I have joined in several and even authored one or two. In theory 

I can simply ignore those cases because, not being published, they possess no 

precedential value. (See Cal. Rules of Court, rule 8.1115.) In fact of course one cannot 

remain wholly insensible to the appearance of inconsistency. Suffice it to say that my 

opinion in those cases rested on assumptions I have always considered dubious and now 

find constitutionally unsound, particularly in view of Williams, supra, ___ U.S. ___ [132 

S.Ct. 1121].
7

state‘s petition for review after the Court of Appeal held that (1) the prosecution was 

required to prove that certain ―predicate offenses,‖ and not only the charged offense, 

were ―  ̳gang related,‘ ‖ and (2) the expert‘s opinion was not competent to prove gangrelatedness because it rested on matters not in evidence or personally known to him. (Id.

at p. 614.) The Supreme Court rejected both holdings. (Id. at pp. 621-624.) With respect 

to the second, it explained at length ―how the prosecution here satisfied the[] statutory 

requirements‖ for a gang enhancement with expert testimony. (Id. at p. 617, see pp. 617-

626.) This included a recital of general principles governing the admissibility of expert 

opinion and the foundational facts on which an expert witness may rely. (Id. at pp. 617-

620, see 625.) It is this passage of the opinion that the majority treats as binding 

authority on the question of the admissibility of such statements over a confrontation 

clause objection. 

It is true that Gardeley generally endorsed the admission of testimony by gang 

experts, and the recital by them of data, including otherwise objectionable extrajudicial 

statements, on which they relied in concluding, e.g., that a crime was committed for the 

benefit of a gang‘s members. It is far from clear that this endorsement can be properly 

viewed as a holding concerning the admissibility of such evidence, since it does not 

appear that any such issue was squarely raised or addressed. But assuming the court‘s 

discussion may be viewed as an actual holding on that point, it still cannot be treated as 

binding with respect to a ground of objection the court never considered or even 

acknowledged—particularly an objection arising under the federal constitution, the last 

word on which is entrusted not to any state court, but to the United States Supreme Court. 

(See Chesapeake & O. Ry. Co. v. Martin (1931) 283 U.S. 209, 221 [determination by 

court on issue of federal law ―is binding upon the state courts, and must be followed, any 

state law, decision, or rule to the contrary notwithstanding‖].)
8

I am not dissuaded from these views by People v. Hill, supra, 191 Cal.App.4th 

1104, 1127. The court there agreed with me that testimonial hearsay admitted as basis 

evidence offends the confrontation clause, but declared itself powerless to reverse on that 

ground in light of Gardeley. The court did not attempt to reconcile this conclusion with 

the fundamental rule that cases are not authority for questions they do not consider. It 

simply cited Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, which 

states the familiar proposition that ―[u]nder the doctrine of stare decisis, all tribunals 

exercising inferior jurisdiction are required to follow decisions of courts exercising 

superior jurisdiction.‖ (See People v. Hill, supra, 191 Cal.App.4th at pp. 1127-1128.) 

But this rule requires that one properly identify the ―decision‖ embodied in a cited 

precedent. ―  ̳The doctrine of precedent, or stare decisis, extends only to the ratio 

decidendi of a decision, not to supplementary or explanatory comments which might be 

included in an opinion‖ (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 272.) 

―To determine the precedential value of a statement in an opinion, the language of that 

statement must be compared with the facts of the case and the issues raised.‘ [Citation.]‖ 

(Ibid., italics added.) The application of the confrontation clause to testimonial basis 

evidence was not among the ―issues raised‖ in Gardely. The ―decision‖ in that case 

therefore cannot extend to that question. 

Other published decisions appear to recognize this. They cite Gardeley in the 

Crawford context, but none of them suggests that it is controlling authority. (See People 

v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210; People v. Cooper (2007) 148 

Cal.App.4th 731, 747 [citing Gardeley with a ―see also‖ signal]; People v. Sisneros

(2009) 174 Cal.App.4th 142, 153 [―[s]ee‖]; People v. Steppe (2013) 213 Cal.App.4th 

1116, 1127 [holding that admission of challenged evidence did not offend confrontation 

clause and, citing Gardeley,―was proper under California authority as well‖].) Indeed, 

the earliest of these decisions noted that Gardeley concerned an analogous issue, but went 
9

on to acknowledge that ―no published California case has yet addressed whether 

Crawford applies to hearsay statements that are used not as direct evidence against the 

defendant but merely as the basis for an expert‘s opinion.‖ (People v. Thomas, supra, 

130 Cal.App.4th at p. 1210.) It concluded that the evidence at issue did not offend the 

confrontation clause, but it relied for that conclusion on decisions from other 

jurisdictions. (Ibid..) 

I agree that Gardeley implicates an analogous question under state law, in that it 

discussed general principles concerning the admissibility of basis evidence over a hearsay

objection, including the rules that ―matter that is ordinarily inadmissible can form the 

proper basis for an expert‘s opinion testimony,‖ and ―an expert witness whose opinion is 

based on such inadmissible matter can, when testifying, describe the material that forms 

the basis of the opinion.‖ (Gardeley, supra, 14 Cal.4th at p. 618.) However, the court 

noted, the expert‘s recital of such matter does not ―transform [it] into  ̳independent proof‘ 

of any fact.‖ (Id. at p. 619, quoting Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 

1516, 1524-1525.)

The court thus alluded, if somewhat obliquely, to the proposition that evidence 

introduced solely to establish the basis of an expert opinion falls outside our code‘s 

definition of hearsay as an out-of-court statement ―that is offered to prove the truth of the 

matter stated.‖ (Evid. Code, § 1200, subd. (a).) The decision has been understood to 

approve this not-for-truth rationale as a ground to overrule hearsay challenges to basis 

evidence from gang experts. And that rationale does have some conceptual bearing on 

the scope of the confrontation clause, for it too is inapplicable to statements admitted ―for 

purposes other than establishing the truth of the matter asserted.‖ (Crawford, supra, 541 

U.S. at p. 59, fn. 9.)

It follows that the rule attributed to Gardeley, if applied identically to 

confrontation clause objections, would require that they be overruled. But nothing in 
10

Gardeley or in general principles of stare decisis requires that the not-for-truth rationale, 

as viewed by it, be extended to the confrontation clause. States are of course free to 

define the scope of their own evidentiary rules, and to adopt any rationale in doing so that 

seems meet to them, subject only to constitutional constraints. But nothing prevents the 

United States Supreme Court from rejecting the state rules, and their rationales, when 

delineating analogous areas of constitutional jurisprudence. As Justice Thomas wrote in 

Williams, supra, ___ U.S. ___ [132 S.Ct. 2221, 2256], ―concepts central to the 

application of the Confrontation Clause are ultimately matters of federal constitutional 

law that are not dictated by state or federal evidentiary rules. See Barber v. Page, 390 

U.S. 719, 724–725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (defining a constitutional 

standard for whether a witness is ―unavailable‖ for purposes of the Confrontation 

Clause); see also Ohio v. Roberts, 448 U.S. 56, 76, 100 S.Ct. 2531, 65 L.Ed.2d 597 

(1980) (recognizing that Barber ―explored the issue of constitutional unavailability‖ 

(emphasis added)).‖4

The question whether to follow Gardeley‘s treatment of the confrontation clause 

should begin and end with the fact that the case contains no treatment of that subject. It 

cannot be good law—or bad law—on a subject it did not purport to consider.5 Given this 

 

4

 Similarly, Justice Kagan described ―the plurality‘s not-for-the-truth rationale‖ as 

an ―abdication to state-law labels.‖ (Williams, supra, ___ U.S. at p. ___ [132 S.Ct. at 

p. 2272].) ―[T]he plurality thinks this case decided by an Illinois rule holding that the 

facts underlying an expert‘s opinion are not admitted for that purpose. [Citations.] But 

we do not typically allow state law to define federal constitutional requirements. . . . 

[E]ven before Crawford, we did not allow the Clause‘s scope to be  ̳dictated by state or 

federal evidentiary rules.‘ . . . So the plurality‘s state-law-first approach would be an 

about-face.‖ (Id. at p. ____ [132 S.Ct. at p. 2272], citations omitted.)

5

 The same is true of People v. Linton (2013) 56 Cal.4th 1146, 1199-1200, which 

respondent cites in a supplemental brief while conceding that it ―did not involve a 

confrontation clause challenge to an expert‘s reliance on hearsay.‖ I find the case 

remarkable chiefly for its refusal to allow a capital defendant to exploit the same loophole 

in the hearsay rule that the prosecutor exploited here, and that prosecutors around the 
11

conclusion, I believe the central question is more properly framed as whether we should 

extend the not-for-truth rationale so as to allow the introduction of basis evidence by a 

gang expert over the objection that it violates a defendant‘s right to confront his accusers. 

For the reasons that follow, I believe that we should not.

III. The Confrontation Clause vs. The “Not-for-Truth” Rationale

It appears likely to me that if squarely faced with the issue, the United States 

Supreme Court, as currently constituted, would rule that the wholesale admission of 

incriminating extrajudicial statements through police ―experts,‖ as occurred here, cannot 

be reconciled with the Sixth Amendment right of a criminal defendant to confront his or 

her accusers, at least when those statements are the product of police questioning, and 

thus ―testimonial.‖ I agree with the majority that our function is not to count noses but 

to ―  ̳render the best interpretation of the law in light of the legal text and authorities 

binding on us.‘ (People v. Lopez (2012) 55 Cal.4th 569, 594 (dis. opn. of Liu, J.).‖ (Maj. 

opn. at p. 92, ante.) But since there are no binding texts or authorities on the precise 

point before us, I believe our job is to render ―the best interpretation of the law‖ of which 

we are able in view of the existing non-binding authorities. This manifestly includes 

opinions of justices of the United States Supreme Court, five of whom have offered 

compelling and to me entirely persuasive reasons for repudiating the not-for-truth 

 

state have routinely exploited to introduce mountains of prejudicial hearsay against gang 

and other defendants. The trial court there refused to allow a defense expert to recite 

extrajudicial statements made by the defendant. The Supreme Court upheld the trial 

court‘s finding that the statements had been ―  ̳made under circumstances‘ indicating a 

 ̳lack of trustworthiness.‘ ‖ (Id. at p. 1200, quoting Evid.Code, § 1252.) Similar results 

have been reached elsewhere. (See People v.Bell (2007) 40 Cal.4th 582, 607-608 [trial 

court properly barred psychological defense expert from repeating statements by 

defendant about killing; trial court may have overestimated prejudicial effect of 

testimony, but did not act arbitrarily or capriciously in finding that admonition would not 

cure prejudice].)
12

rationale as a basis to admit incriminating extrajudicial statements, over a confrontation 

clause objection, in support of expert opinion evidence. 

Justice Thomas, who concurred in Williams on the ground that the statements at 

issue there were not testimonial, nonetheless emphatically repudiated the not-for-truth 

rationale as a ground for admitting basis evidence over a confrontation-clause objection. 

―There is no meaningful distinction,‖ he wrote, ―between disclosing an out-of-court 

statement so that the factfinder may evaluate the expert‘s opinion and disclosing that 

statement for its truth.  ̳To use the inadmissible information in evaluating the expert‘s 

testimony, the jury must make a preliminary judgment about whether this information is 

true.‘ D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: A Treatise on 

Evidence: Expert Evidence § 4.10.1, p. 196 (2d ed.2011) (hereinafter Kaye).  ̳If the jury 

believes that the basis evidence is true, it will likely also believe that the expert‘s reliance 

is justified; inversely, if the jury doubts the accuracy or validity of the basis evidence, it 

will be skeptical of the expert‘s conclusions.‘ Ibid.‖ (Williams, supra, ___ U.S. at p. ___ 

[132 S.Ct. at p. 2257], fn. omitted (conc. opn. of Thomas, J.).) 

The four dissenting justices shared this view. Writing on their behalf, Justice 

Kagan described reasoning to the contrary as ―a prosecutorial dodge.‖ (Williams, supra, 

___ U.S. at p. ___ [132 S.Ct. at p. 2265 (dis. opn. of Kagan, J.).) Where ―a witness, 

expert or otherwise, repeats an out-of-court statement as the basis for a conclusion,‖ she 

wrote, ―the statement‘s utility is . . . dependent on its truth. If the statement is true, then 

the conclusion based on it is probably true; if not, not. So to determine the validity of the 

witness‘s conclusion, the factfinder must assess the truth of the out-of-court statement on 

which it relies. That is why the principal modern treatise on evidence variously calls the 

idea that such  ̳basis evidence‘ comes in not for its truth, but only to help the factfinder 

evaluate an expert‘s opinion  ̳very weak,‘  ̳factually implausible,‘  ̳nonsense,‘ and  ̳sheer 

fiction.‘ D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: Expert Evidence § 
13

4.10.1, pp. 196–197 (2d ed.2011); id., § 4.11.6, at 24 (Supp.2012).  ̳One can 

sympathize,‘ notes that treatise,  ̳with a court‘s desire to permit the disclosure of basis 

evidence that is quite probably reliable, such as a routine analysis of a drug, but to 

pretend that it is not being introduced for the truth of its contents strains credibility.‘ Id., 

§ 4.10.1, at 198 (2d ed.2011); see also, e.g., People v. Goldstein, 6 N.Y.3d 119, 128, 810 

N.Y.S.2d 100, 843 N.E.2d 727, 732–733 (2005) ( ̳The distinction between a statement 

offered for its truth and a statement offered to shed light on an expert‘s opinion is not 

meaningful‘). . . . [A]dmission of the out-of-court statement in this context has no 

purpose separate from its truth; the factfinder can do nothing with it except assess its truth 

and so the credibility of the conclusion it serves to buttress.‖ (Id. at pp. ___-___ [132 

S.Ct. at pp. 2268-2269], fn. omitted.)

The limiting instruction given on this point by the trial court here reflects this 

same logical contradiction, or circularity. At the time of Sergeant Livingston‘s 

testimony, the court advised the jury that extrajudicial statements repeated by him ―are 

not offered for the truth of the matter that is said to him or said that he relies upon, and 

they cannot be considered by you for their truth. You can only consider [such a] 

statement insofar as it makes sense to you that he relies upon it and forms the basis of his 

opinion. . . . [¶] . . . They‘re not offered for the truth; they‘re only offered, and only can 

be considered by you, to support the witness‘ opinion, and you‘ll get more instructions 

about that at the end of the case.‖6 But the jury could not use the statements to evaluate 

the expert‘s opinion without finding them to be either true or false. They could not—in 

the trial court‘s words—―support the witness‘s opinion‖ unless they were true. Simply 

telling the jurors that the extrajudicial statements might support the opinion was an 

 

6

 In fact, as discussed post (pt. V(B)), the jury received contradictory instructions 

at the end of the case, being told that it should ―consider . . . the facts or information on 

which the expert relied in reaching that opinion,‖ and ―must decide whether information 

on which the expert relied was true and accurate.‖ (Italics added.)
14

invitation to accept them as true. To be sure, the limiting instruction declared them to be 

―not offered for the truth‖; but faced with the rest of the instruction, the jurors could only 

find this, as the court described it too mildly, ―a little bit complex.‖

Even without these baffling directions the basis evidence was highly likely to 

prejudice defendants. A jury required to choose between believing or doubting the 

accuracy of ―basis evidence‖ will rarely have any basis to doubt it, precisely because its 

source—the out-of-court declarant—is insulated from cross-examination and immune 

from the visual and other scrutiny to which live witnesses are necessarily exposed. Here, 

for example, the officer was permitted to testify that one of the defendants was accused of 

gang membership by his girlfriend‘s mother. The jury had no way of judging whether the 

mother was a reliable witness or whether her accusation might have been the product of 

misperception, resentment, animosity, or some combination of such factors. All the 

jurors had to go on was a naked assertion of fact by a disembodied narrator—

sympathetically described, incidentally—who was presumably in a good position to 

know the truth. Since the jury had no basis to affirmatively question the accuracy of the 

statement, I see no realistic possibility of its doing so. 

Viewed another way, if a jury were to comprehend the instruction that such 

statements are ―not admitted for their truth,‖ it would presumably reason that the 

statements only had one legitimate purpose: to discredit the expert‘s opinion if and when 

they were proven false. Unfortunately the court here might be understood to preclude 

this interpretation by telling the jury that the hearsay statements recited by Sergeant 

Livingston were ―only offered, and only can be considered by you, to support the 

witness‘ opinion . . . .‖ But even in the absence of that misdirection, any juror 

perspicacious enough to arrive at the interpretative inference just described would 

immediately discern one very good reason to reject it: if the only permissible effect of 
15

the evidence is to discredit the opinion, why is it being introduced by the proponent of the 

opinion, and objected to by its opponent?

In fact no one honestly expects a jury to wholly disregard such evidence, however 

thoroughly it may be admonished. In my view, judicial protestations to the contrary 

make a mockery of our jurisprudence. (See pt. V(B), post.) If the evidence were really 

offered only to let the jury ―evaluate‖ the witness‘s opinion, and if the jury were really 

expected to rise above its incriminating effect, the proponent of the evidence would not 

bother to offer it. That such evidence is routinely introduced by the boatload, over 

defense objection, reflects the widespread belief of prosecutors and defense attorneys 

alike that it can only operate to the prejudice of its opponent. It can have no permissible 

effect. Why then admit it? 

Again, the record will rarely provide much ground for the factfinder to ―  ̳doubt[] 

the accuracy or validity‘ ‖ of the extrajudicial statement. (Williams, supra, ___ U.S. at p. 

___ [132 S.Ct. at p. 2257] (conc. opn. of Thomas, J.).) The jury will thus ordinarily 

accept the evidence, by default, as ―justif[ying]‖ the expert‘s opinion rather than casting 

doubt on it. (Ibid.) This imbalance of course might be redressed by cross-examination of 

the declarant, perhaps exposing grounds to doubt the truth of the questioned assertions. 

In the absence of such exploration, any extrajudicial assertion will naturally tend to 

reinforce the proffered opinion evidence.

I also find it highly relevant that Williams was concerned with circumstances that 

most would agree, and the plurality certainly insisted, were far removed from the 

paradigmatic confrontation clause violation. As Justice Breyer emphasized in his 

separate concurrence, that decision was only the latest of several in which the court had 

grappled—he felt inadequately—with the admissibility of extrajudicial statements 

concerning technical, scientific, or medical matters. (Williams, supra, ___ U.S. at p. ___ 

[132 S.Ct. at pp. 2244-2245]; see also Melendez–Diaz v. Massachusetts (2009) 557 U.S. 
16

305; Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705].) I think it is quite 

likely that at least one of the justices there voting to reject the confrontation clause 

challenge would view quite differently the practice in this state, where there is no need to 

postulate hypotheticals—as the dissent in Williams did—about the dangers posed to core 

confrontation concerns by prosecutorial experts armed with the not-for-truth rationale and 

mountains of incriminating testimonial hearsay. (See Williams, supra, ___ U.S. at p. ___ 

[132 S.Ct. at p. 2269] (dis. opn. of Kagan, J.).) Our courts see hundreds of examples of 

this stratagem every year. We need not speculate about the ability of an unfettered notfor-truth rationale to ―end-run the Confrontation Clause, and make a parody of its 

strictures.‖ (Id. at p. ___ [132 S.Ct. at p. 2269].) Nor need we rely on the conditional 

mood to describe the state‘s power, under such a rationale, to ―bypass the Constitution‖ 

with ―a wink and a nod.‖ (Id. at p. ___ [132 S.Ct. at p. 2270].) That is precisely what 

took place in this case, as it has in dozens if not hundreds of other gang cases around this 

state.

Nor do I think the perniciousness of this practice will fail to take on constitutional 

significance for at some of the justices who signed only the plurality opinion in Williams. 

In that opinion, Justice Alito acknowledged the risk that an uncabined not-for-truth 

rationale might permit an expert to ―express[] an opinion based on factual premises not 

supported by any admissible evidence, and . . . also reveal the out-of-court statements on 

which the expert relied.‖ (Williams, supra, ___ U.S. at p. ____ [132 S.Ct. at p. 2241] 

(plur. opn. of Alito, J.), fn. omitted.) He identified ―four safeguards to prevent such 

abuses‖ (ibid.), but I am not persuaded that any of them provides genuine protection in 

gang trials in this state. 

The first safeguard identified by Justice Alito is that ―trial courts can screen out 

experts who would act as mere conduits for hearsay by strictly enforcing the requirement 

that experts display some genuine  ̳scientific, technical, or other specialized knowledge 
17

[that] will help the trier of fact to understand the evidence or to determine a fact in issue.‘ 

Fed. Rule Evid. 702(a).‖ (Williams, supra, ___ U.S. at p. ____ [132 S.Ct. at p. 2241] 

(plur. opn. of Alito, J.).) The comparable rule in California allows expert opinion 

testimony if it is ―[r]elated to a subject that is sufficiently beyond common experience 

that the opinion of an expert would assist the trier of fact‖ (Evid. Code, § 801, subd. (a)), 

and is based upon ―matter . . . perceived by or personally known to the witness or made 

known to him at or before the hearing . . . of a type that reasonably may be relied upon by 

an expert in forming an opinion upon the subject to which his testimony relates‖(id., 

subd. (b)).7 However the rule is formulated, it can afford only so much protection as 

courts interpret it to afford. My perception is that the discretionary power to limit or 

exclude expert testimony has had precious little limiting effect on basis evidence in gang 

prosecutions. Instead, the rote application of the not-for-truth rationale to police gang 

experts has opened the gates to a veritable flood of incriminating hearsay, with appellate 

decisions providing little incentive for trial courts to restrain such testimony.8 (See 

 

7

 No one in this case has questioned the soundness of permitting police ―gang 

experts‖ to tell jurors how street gangs generally work, or even to share more specific but 

still esoteric knowledge about them. Elsewhere, however, serious questions have been 

raised about the propriety of allowing police officers, with no training in the social 

sciences, to assume a mantle of expertise that might more appropriately be reserved to 

sociologists. (See McGinnis, et al., Interrogation Is Not Ethnography: The Irrational 

Admission of Gang Cops As Experts in the Field of Sociology (2010) 7 Hastings Race & 

Poverty L. J. 111, 130 [attacking the ―incredible proposition that police officers are 

qualified to give sociological testimony‖]; id. at p. 131 [―A venerable history of police 

officers passing as sociologists does not explain why police officers are reliably able to 

provide testimony on sociological concepts.‖].)

8

 Nor can I blind myself to the pressures that may be brought to bear on trial 

judges should they be deemed insufficiently accommodating to prosecutors‘ wishes. 

(See, e.g., Kaplan, Santa Clara County DA tells attorneys to boycott judge who irked 

them (Jan. 23, 2010) San Jose Mercury News, 

<http://www.mercurynews.com/search/ci_14254154> (as of Oct. 16, 2013); Payne, 

Attorneys seek edge by swapping judges (Dec. 4, 2010) The Press Democrat, 

<http://www.pressdemocrat.com/article/20101204/articles/101209729#page=3> (as of 
18

Mahoney, Houses Built on Sand: Police Expert Testimony in California Gang 

Prosecutions; Did Gardeley Go Too Far? (2004) 31 Hastings Const. L.Q. 385, 387 [―In 

Gardeley, the California Supreme Court missed a critical opportunity to reemphasize 

California‘s restrictive view of expert testimony and the importance of judicial 

gatekeeping.‖].) Whatever the degree of protection afforded in other jurisdictions by 

these limits on expert testimony, they have had little protective effect in this state.

Justice Alito‘s next safeguard is that ―experts are generally precluded from 

disclosing inadmissible evidence to a jury. See Fed. Rule Evid. 703; People v. Pasch, 

152 Ill.2d 133, 175–176, 178 Ill.Dec. 38, 604 N.E.2d 294, 310–311 (1992).‖ (Williams, 

supra, ___ U.S. at p. ____ [132 S.Ct. at p. 2241] (plur. opn. of Alito, J.).) This may be 

true in federal courts and jurisdictions applying variations on the Federal Rules of 

Evidence, but it is far from true in this state. Earlier in the opinion Justice Alito 

addressed the same point in somewhat more detail, writing that ―in jury trials, both 

Illinois and federal law generally bar an expert from disclosing such inadmissible 

evidence.‖ (Id. at p. ____ [132 S.Ct. at p. 2234], fn. omitted, emphasis in original.) 

Under the applicable rule, he noted, such evidence may be placed before the jury only ―if 

the value of disclosure  ̳substantially outweighs [any] prejudicial effect,‘ [citation], or 

―the probative value . . . outweighs the risk of unfair prejudice.‘ [Citation.]‖ (Id. at 

 

Oct. 16, 2013 [referring to blanket challenges to two Sonoma County judges in 1997 and 

2001; district attorney‘s spokesperson quoted as saying, ―  ̳There are some judges we 

may not want to send complicated gang cases to because they have had rulings that were 

adverse to the people.‘ ‖]; Moran, Judge under boycott from DA (Nov. 29, 2009) 

UTSanDiego.com <http://www.utsandiego.com/news/2009/nov/29/judge-under-boycottda/all/> (as of Oct. 16, 2013); Moran, Boycotting of judges nothing new to DA (Feb. 29, 

2009) UTSanDiego.com <http://www.utsandiego.com/news/2010/feb/28/boycotting-ofjudges-is-nothing-new-to-da/all/> (as of Oct. 16, 2013); Stewart, State’s Trial Judges 

Dodge ‘Paper’ Bullets : Law Gives District Attorneys Veto Power Over Jurists in

Criminal Cases (Dec. 15, 1985) Los Angeles Times <http://articles.latimes.com/1985-12-

15/local/me-550_1_district-attorney> (as of Oct. 16, 2013).)
19

p. ____ [132 S.Ct. at p. 2234, fn. 2.]) He emphasized that the matter there had been tried 

without a jury and that, had it been otherwise, the challenged testimony would have been 

inadmissible ―[a]bsent an evaluation of the risk of juror confusion and careful jury 

instructions.‖ (Id. at p. ____, 132 S.Ct. at p. 2236.) 

The presumptive inadmissibility thus described by Justice Alito contrasts sharply 

with the law in California, where the governing code section declares unconditionally 

that an opinion witness may ―state on direct examination the reasons for his opinion and 

the matter . . . upon which it is based . . . .‖ (Evid. Code, § 802.) There is no threshold 

requirement that the court weigh the ―value of disclosure‖ against the matter‘s 

―prejudicial effect.‖ At most the court is granted the ―discretion‖ to ―require that a 

witness testifying in the form of an opinion be first examined concerning the matter upon 

which his opinion is based.‖ (Id.)

The only substantive restraints imposed by California law on an expert‘s repetition 

of incompetent basis evidence are (1) the requirement that the evidence be of the type on 

which experts in the relevant field may reasonably rely (see Evid. Code, § 801, subd. (b)), 

and (2) the trial court‘s general power to exclude any evidence whose probative value is 

outweighed by the ―probability‖ that it will ―create substantial danger of undue prejudice, 

of confusing the issues, or of misleading the jury‖ (see id., § 352). Arguably this rule 

places the burden on the objector where the federal rule places it upon the proponent. In 

any event it cannot be said of our law, as Justice Alito said of federal and Illinois law, 

that an expert is ―generally bar[red]‖ from ―disclosing such inadmissible evidence‖ to a 

jury. (Williams, supra, ___ U.S. at p. ____ [132 S.Ct. at p. 2234] fn. omitted.) Such 

evidence is routinely disclosed to California juries with little restraint or hindrance.

Justice Alito‘s third safeguard is that ―if such evidence is disclosed, the trial judges

may and, under most circumstances, must, instruct the jury that out-of-court statements 

cannot be accepted for their truth, and that an expert‘s opinion is only as good as the 
20

independent evidence that establishes its underlying premises. See Fed. Rules Evid. 105, 

703; People v. Scott, 148 Ill.2d 479, 527–528, 171 Ill.Dec. 365, 594 N.E.2d 217, 236–237 

(1992).‖ (Williams, supra, ___ U.S. at p. ____ [132 S.Ct. at p. 2241]; italics added.) 

While California law recognizes a similar principle (see Gardeley, supra, 14 Cal.4th at 

p. 618), it does not appear that the jury in this case was ever intelligibly instructed on this 

point, and indeed the relevant pattern instruction, which was given here (see pt. V(B), 

post), is grossly inadequate to convey it. The instruction states in pertinent part, ―In 

evaluating the believability of an expert witness, follow the instructions about the 

believability of witnesses generally. In addition, consider the expert‘s knowledge, skill, 

experience, training, and education, the reasons the expert gave for any opinion, and the 

facts or information on which the expert relied in reaching that opinion. You must decide 

whether information on which the expert relied was true and accurate. You may 

disregard any opinion that you find unbelievable, unreasonable, or unsupported by the 

evidence.‖ (CALCRIM No. 332, italics added.) This language omits critical legal 

principles, apparently in the interest of comprehensibility. It fails entirely to tell the jury 

that facts relied upon by the expert must be disregarded, and operate in derogation of his 

opinion, unless proven by independent, competent evidence. Indeed, the directive to 

―decide whether information on which the expert relied was true and accurate‖ creates a 

grave risk of obliterating whatever protective effect earlier limiting instructions might 

have had on a jury‘s consideration of basis evidence. Apparently the drafters‘ intent was 

to avoid using the concept, which is actually critical to any proper evaluation of expert 

testimony, of what Justice Alito called ―underlying premises.‖ The question is not 

whether the expert‘s ―information‖ is ―true,‖ as the instruction tells the jury, but whether 

the factual premises on which his opinion depends have been proven by competent 

evidence. By inviting the jury to consider the truth of his ―information,‖ without so much 

as mentioning the requirement of independent, competent corroboration, the pattern 
21

instruction not only fails to afford the protection cited by Justice Alito but affirmatively 

conveys the highly prejudicial message that the jury ―must‖ decide whether each 

inflammatory hearsay statement the expert may have repeated is in fact true.

Justice Alito‘s fourth safeguard is closely related to the third: ―[I]f the prosecution 

cannot muster any independent admissible evidence to prove the foundational facts that 

are essential to the relevance of the expert‘s testimony, then the expert‘s testimony cannot 

be given any weight by the trier of fact.‖ (Williams, supra, ___ U.S. at p. ____ [132 S.Ct. 

at p. 2241], fn. omitted, italics added.) As just noted, however, the jury here—and 

California juries generally—are left completely in the dark about the necessity of 

―independent admissible evidence‖ to support an expert‘s factual suppositions, and the 

effect of its absence on the weight to be given his opinion.9 

I thus find that under current California law, the safeguards cited by Justice Alito 

are weak to nonexistent. As I have noted, Justice Breyer joined in the plurality opinion 

but wrote separately to emphasize policy considerations which favored the result there 

but which apply chiefly, it not uniquely, to ―the panoply of crime laboratory reports and 

underlying technical statements written by (or otherwise made by) laboratory 

technicians.‖ (Williams, supra, ___ U.S. at p. ____ [132 S.Ct. at p. 2244].) This, in his 

view, was the central question in the case: ―how, after Crawford, Confrontation Clause 

 

9

 The older pattern instructions at least attempted to convey these points to the 

jury, instructing in part, ―An expert witness is permitted to consider statements made to 

the witness or a third person that have not been made under oath in court. Statements 

considered by an expert witness which were made to the witness or a third person do not 

prove that what was said was true. The truth of those statements may come from other 

evidence. You should consider the failure to prove in court that it was made or is true in 

determining what weight to give to the opinion of the expert.‖ (CALJIC No. 2.80.) They 

also recited the critical point noted in the above passage by Justice Alito: ―An opinion is 

only as good as the facts and reasons on which it is based. If you find that any fact has 

not been proved, or has been disproved, you must consider that in determining the value 

of the opinion.‖ (Ibid.)
22

 ̳testimonial statement‘ requirements apply to crime laboratory reports.‖ (Id. at p. 2248 

[132 S.Ct. at p. 2246].) He did not object to the dissent‘s logic; indeed he was ―willing to 

accept the dissent‘s characterization‖ that the not-for-truth rationale for admitting 

extrajudicial statements in support of opinion testimony was ―artificial.‖ (Ibid.) But he 

faulted the dissent for failing to ―produce[] a workable alternative‖ in the context of 

scientific evidence. (Ibid.) ―The reality of the matter is that the introduction of a 

laboratory report involves layer upon layer of technical statements (express or implied) 

made by one expert and relied upon by another.‖ (Ibid.) He feared that under the 

dissent‘s view, the prosecution would be ―require[d] . . . to call all of the laboratory 

experts‖ whose labors contributed to a reported test result. (Ibid.) 

Critically, Justice Breyer believed that placing burdensome restrictions on the kind 

of scientific evidence at issue there ―could undermine, not fortify, the accuracy of 

factfinding at a criminal trial.‖ (Williams, supra, ___ U.S. at p. ____ [132 S.Ct. at 

p. 2251].) He noted, as an example, that autopsy results might become impossible to 

prove if the examining pathologist died. (Ibid.) Moreover, such restrictions could 

―increase the risk of convicting the innocent‖ by increasing the cost of presenting 

laboratory tests and thus reducing the willingness or ability of prosecuting authorities to 

rely on them. (Ibid.) Without such evidence, states might be forced to rely on less 

reliable means of identification, such as eyewitness testimony. (Ibid.) Concerns such as 

these led Justice Breyer to ―consider reports such as the DNA report before us 

presumptively to lie outside the perimeter of the Clause as established by the Court‘s 

precedents.‖ (Ibid.)

Justice Breyer‘s concerns have no parallels where a police department‘s ―gang 

expert‖ freely recapitulates incriminating extrajudicial statements, gleaned by himself and 

his fellow officers through the questioning of gang members and others, in support of 

opinions that the defendant is a member of a gang or that the charged offense was 
23

committed for a gang‘s benefit. Nor is there any risk that excluding such evidence will 

reduce the ―accuracy of factfinding‖ with respect to the defendant‘s gang membership or 

the gang-relatedness of a crime. Typically the most reliable evidence of these matters 

will be the defendant‘s own words and conduct, including gang-related tattoos or other 

regalia, and direct admissions. The opinions of third parties—such as a girlfriend‘s 

mother—are simply piling on.10

I conclude the use made of basis evidence in this case would be held by a majority 

of the Supreme Court to violate the confrontation clause, provided the evidence at issue 

were testimonial. I turn now to that question.

IV.Testimonial Character

For an extrajudicial statement to offend the confrontation clause under Crawford it 

must not only be offered for its truth but must also be ―testimonial‖ in character. 

(Crawford, supra, 541 U.S. at pp. 53-54.) In Williams, five justices concluded that the 

statements there at issue were not testimonial. Four of them did so on the ground that, to 

be found testimonial, a statement‘s ―primary purpose‖ must be to ―accus[e] a targeted 

individual of engaging in criminal conduct.‖ (Williams, supra, ___ U.S. at p. ____ [132 

S.Ct. at p. 2242]; see id. at p. ___ [132 S.Ct. at p. 2244].) Justice Alito concluded that 

―the use at trial of a DNA report prepared by a modern, accredited laboratory  ̳bears little 

if any resemblance to the historical practices that the Confrontation Clause aimed to 

eliminate.‘ ‖ (Id. at p. ____ [132 S.Ct. at p. 2244], quoting Michigan v. Bryant (2011) 

562 U.S.___, ___ [131 S.Ct. 1143, 1167] (conc. opn. of Thomas, J.).)

The foregoing rationale cannot be applied to the present case. In ostensible 

support of his opinions, Sergeant Livingston cited numerous statements made to him and 

 

10

 Indeed, it is difficult to know why the statement from the girlfriend‘s mother 

was introduced unless it was to conjure in jurors‘ minds the highly prejudicial image of a 

distraught parent whose child had fallen into the clutches of a vicious miscreant.
24

other officers by declarants, often unidentified, concerning defendants‘ supposed 

membership and role in gangs and their activities in association with those gangs. There 

was no suggestion that any of these statements were taken by police to meet an ongoing 

emergency. (See Michigan v. Bryant, supra, 562 U.S. ___ [131 S.Ct. 1143].) They were 

manifestly gathered by police in anticipation of future gang prosecutions of precisely the 

type now before us. Indeed some of them were gathered in investigating this very case. 

Thus Sergeant Livingston testified that defendants Zavala and Rodriguez were not only 

―influential members of the Shalu Garden gang‖ but were ―the two primary people 

planning the crime.‖ (Maj. opn. at p. 25, ante.) This information, he said, was ―based 

upon  ̳prior contacts, speaking with other people, reviewing police reports.‘ ‖ (Maj. opn. 

at p. 25, ante.) It is obvious that at least some of this information must have come from 

interrogations relating specifically to the present offense.11 

The trial court recognized that some of the material cited by Sergeant Livingston 

might be ―testimonial‖ in character, but apparently concluded that it did not matter 

 

11

 Again my colleagues describe me as ―assum[ing]‖ that many of the 

extrajudicial gang-related statements conveyed by Sergeant Livingston were testimonial. 

(Maj. Opn., ante at p. 83, ante.) Again this is not an ―assumption‖ but an inference 

drawn from the nature of the statements related and such other circumstances as can be 

gleaned from the record. And again, any deficiencies in the record in this regard appear 

at least partly attributable to the manner in which the trial court conducted the trial, and in 

particular its insistence that all objections be made off the record, which made it much 

more difficult than it would otherwise have been for counsel to conduct foundational voir 

dire to determine the precise source and character of the statements recited. In a perfect 

world, counsel would have approached the bench and demanded such voir dire with 

respect to every extrajudicial statement the witness mentioned. I am confident that the 

trial court would quickly have tired of that exercise in light of its manifest view—which 

the majority apparently shares—that the question whether the statements were testimonial 

was academic, since they were admissible in any event for a nonhearsay purpose. Given 

these circumstances, the majority‘s reliance on counsel‘s failure to conclusively establish 

the testimonial character of the statements would compel me to write separately even if I 

agreed with its treatment of the case in other respects.
25

because basis evidence was categorically exempt from the constraints imposed by the 

confrontation clause. In this I believe the court erred. I would therefore reverse unless I 

could say that the admission of this evidence was harmless. 

V. Prejudice

A. Insubstantiality of Evidence of Gang-Relatedness

Where evidence has been admitted in violation of the confrontation clause, the 

judgment must be reversed unless we can say that the error was harmless beyond a 

reasonable doubt. (People v. Geier (2007) 41 Cal.4th 555, 608, citing Chapman v. 

California (1967) 386 U.S. 18, 24 (Chapman), Delaware v. Van Arsdall (1986) 475 U.S. 

673, 681, and Neder v. United States (1999) 527 U.S. 1, 18.)

I assume there was sufficient competent evidence to establish that defendants 

robbed Mitchell French on July 23, 2008. The expert testimony was principally 

addressed to prove two elements of the gang enhancement, i.e., that the crime was 

―committed for the benefit of, at the direction of, or in association with a[] criminal street 

gang, [and] with the specific intent to promote, further, or assist in . . . criminal conduct 

by gang members.‖ (Pen. Code, § 186.22, subd. (b)(1).) Broadly read, this language 

could operate any time the defendant aided and abetted in the perpetration of a crime by 

persons he knows are members of a street gang. Courts have recognized, however, that 

―Not every crime committed by gang members is related to a gang.‖ (People v. Albillar

(2010) 51 Cal.4th 47, 60; see id. at p. 62, italics in original [finding ―substantial evidence 

that defendants came together as gang members to attack Amanda M. and, thus, that they 

committed these crimes in association with the gang‖]; see People v. Ochoa (2009) 179 

Cal.App.4th 650, 663 [gang enhancement ―cannot be sustained based solely on 

defendant‘s status as a member of the gang and his subsequent commission of crimes‖]; 

People v. Albarran (2007) 149 Cal.App.4th 214, 227 (Albarran) [judgment reversed 
26

where only evidence supporting gang-related motive for shooting was ―the fact of 

Albarran‘s gang affiliation‖].)

It may also be that even if all of the proscribed hearsay had been excluded, the 

evidence would have been sufficient to sustain the gang enhancement. (But see People v. 

Ramon (2009) 175 Cal.App.4th 843, 850-853 [expert testimony alone is not sufficient to 

sustain a gang enhancement, and facts cited by expert in support of opinion did not make

it substantial evidence]; In re Frank S.(2006) 141 Cal.App.4th 1192, 1199 [to similar 

effect]; People v. Ferraez (2003) 112 Cal.App.4th 925, 931 [enhancement was sustained 

by circumstances in conjunction with expert opinion, but opinion alone would not have 

been sufficient].) The pertinent inquiry is not whether the jury could have sustained the 

enhancement without the objectionable evidence, but whether it would have done so—or 

more precisely, whether it appears beyond a reasonable doubt that it would have done so. 

I find the evidence of gang-relatedness so vague and equivocal that I cannot help but 

doubt that the jury would have found that element had it not been exposed to the 

inflammatory hearsay recited by the gang expert in violation of the defendants‘ right to 

confrontation. 

The first factor cited by the expert in favor of a finding of gang-relatedness was 

that the crime was planned by ―two influential members of Shalu Gardens.‖ This fact is 

simply the logical result of two subsidiary factual propositions: the crime was planned 

before it was perpetrated, and two of the planner/perpetrators were gang members. In 

other words, this factor is little more than a restatement of the fact of gang membership. 

Sergeant Livingston‘s testimony was pervaded by this reliance on logical corollaries or 

rhetorical restatements of the same fact to create an illusion of additional substance, along 

with references to abstract generalities that did not appear, or were not shown to be, 

applicable to the facts at bar. 
27

He next alluded to the fact that, as he put it, the robbers ―gather[ed] resources‖ 

from gang members, in that they ―need[ed] transportation to go commit the robbery so 

members of San Jose Unidos [we]re called to provide transportation.‖ This was 

apparently based on statements to police by the witness R.B., who was present when the 

robbery was planned, that Zavala and Rodriguez—whom he called Mark and J-Dog—

talked about needing ―stolen cars‖ to perpetrate the robbery, and raised the possibility of 

getting them from Hensley (Peanut) who was asserted to belong to an allied gang. This 

testimony seems extraordinarily weak for a number of reasons. First, it only describes 

the planning discussions, not the crime as actually perpetrated. The statute does not 

penalize a defendant for planning a gang-related crime. It penalizes him for committing a 

crime in association with or for the benefit of a gang. Moreover the only gangrelatedness this testimony points to directly is Hensley‘s supposed membership in a gang. 

If the planners‘ own gang membership did not make the crime gang-related, it is difficult 

to see how someone else‘s membership in a different gang—someone who might furnish 

cars—could make it gang-related.

Sergeant Livingston suggested that these facts fitted within a larger generalization, 

i.e., that gangs will often cooperate with one another in committing crimes ―especially 

when it relates to—by Nuestra Familia,‖ a prison gang he described as a kind of umbrella 

or parent organization to all of the Norteño gangs. But I can find no hint in the record 

that Nuestra Familia had anything to do with this case, and no evidence of any 

cooperation between the planners‘ gang and Peanut‘s, or any other, gang—or indeed, of 

involvement by any gang, as a gang—in this offense. Sergeant Livingston testified that 

gang members may sometimes procure ―resources, like weapons, vehicles‖ from ―another 

gang that you may associate with or have friends with,‖ but there is no evidence that this 

happened here. All the evidence showed was that the planners contemplated procuring 

stolen vehicles from a supposed member of another gang. The specification that the cars 
28

be stolen might suggest that their procurement would involve concerted activity—though 

even this seems speculative—but so what? The only car shown to have been actually 

procured for the crime as executed was borrowed by Hensley from a female friend. 

Unless she was a gang member—and for that matter, even if she was—it is difficult to 

see how his borrowing a car from her constituted ―gathering resources‖ from an 

associated gang. Once again the only gang connection was membership—in this case, 

Hensley‘s. 

From there Sergeant Livingston‘s testimony descended into flights of illogic that I 

find both chilling and absurd. Thus he cited, in support of a finding of gang-relatedness, 

evidence that one of the planners had said he would not be afraid to use a gun during the 

robbery.12 This supported a finding of gang-relatedness, he claimed, because ―[i]f you‘re 

squeamish about using a gun, you‘re not going to garner much respect in the gang 

community but if you tell them ahead of time,  ̳I have no problem shooting somebody if I 

need to,‘ then, you know, you‘re basically making that statement. [¶] And if you‘re 

called on it and you need to shoot somebody during the course of that crime, you‘re 

basically expected to do that because you said that you would do that. And if you don‘t 

do it, you‘re not going to gain as much respect within that gang ‘cause you‘re basically

kind of showing you‘re a coward and not following through with what you said.‖ 

In other words, Sergeant Livingston opined that a professed willingness to use a 

gun, as well as its actual use, supported a finding of gang-relatedness because these 

things would enhance one‘s reputation in a gang. But young men hardly have to belong 

to a gang to feel that they enlarge themselves by talking and acting tough. One would 

expect this behavior to be especially prevalent among the class of young men willing to 

seriously contemplate the commission of violent felonies. Willingness to boast of such 

 

12

 R.B. testified that Zavala, whom the witness knew as Little Savage or Mark, 

said that ―if he had to shoot somebody to do this robbery, he‘d do it.‖ 
29

matters hardly points to gang involvement. The Brave Little Tailor of the Brothers 

Grimm famously boasted of killing ―seven at one blow.‖ Was that evidence that his 

subsequent exploits were performed with or for a gang? The inference proposed by the 

sergeant embodies something akin to that most fundamental of logical errors, affirming 

the consequent. It may very well be that gang members like to boast of their willingness 

to do violence because it will enhance their reputations in the gang. It does not follow 

that everyone boasting of such willingness is thereby acting for, with, or on behalf of any 

gang to which he may belong.

Presenting a somewhat more complex picture was Sergeant Livingston‘s attempt 

to justify an inference of gang-relatedness from the fact that the victim was engaged in 

selling marijuana. He testified, ―[W]hat will happen is if gang members know of specific 

targets, and in this case I‘ll reference what we call drug rips, gangs are involved with the 

sales of controlled substances so they oftentimes know who are holding quantities of 

controlled substances so if they don‘t want to be involved in buying their own or selling 

their own and they want to come up on money quick, they will just go rob a drug dealer. 

[¶] So oftentimes, what will happen is somebody within the gang may already know of a 

drug dealer, they‘ll identify that person, and then they‘ll plan to do the robbery from 

there. And it‘s—they target drug dealers specifically because more often than not, they 

won’t contact the police because the person‘s committing a felony themselves selling 

drugs so they know that the person most likely isn‘t going to call the police, and even if 

they do, they probably won’t cooperate with the police, much less take the stand and be 

truthful on the stand. They know that they‘re probably going to try to cover up what they 

were actually doing. [¶] And then also, if the fear‘s instilled into them that they‘re

dealing with a gang member, now they have to, you know, dealing—deal with the fact 

they’re going to have to sell drugs in the same area or same county as active gang 
30

members who robbed them so the chances of them actually testifying against them is 

pretty slim.‖ (Italics added.)

The sergeant thus offered three reasons the robbery of a drug dealer supports a 

finding of gang-relatedness: (1) gangs have superior intelligence regarding who is 

engaged in drug dealing; (2) drug dealers are unlikely to report crimes or cooperate with 

authorities because of the inevitable disclosure of their own criminal conduct; and 

(3) drug dealers are afraid to cooperate because they must continue to do business in or 

near the gang‘s territory. These are interesting propositions but they had scarcely any 

factual connection to this case. First, there was no suggestion that the victim was 

targeted as the result of gang intelligence. On the contrary, while R.B. professed at trial 

not to remember who came up with the idea of robbing French, he acknowledged that he 

himself knew French was a dealer because he had bought marijuana from him—and that 

he declined to be involved in the robbery because he hoped to preserve that relationship, 

in addition to avoiding the risk that French could identify him. He acknowledged that 

Kyle Moneyhun, who was also present during the planning of the robbery, knew that 

French was a dealer. He thought he recalled accompanying Michelle Stojkovic to 

purchase marijuana from French, but denied any recollection that it was she who 

nominated French as a robbery victim. He thought it was probably Moneyhun who did 

so ― ̳cause only him and I knew him.‖ The record thus strongly suggests, if it does not 

conclusively prove, that the information on which the robbery was based had nothing to 

do with any gang intelligence but was derived from the personal knowledge of one or 

more persons at the planning meeting.

I readily see the logic in expecting that a drug dealer will be reluctant to report a 

robbery for fear of himself becoming a target of unwanted official attention. But that 

logic is completely divorced from any gang affiliation of the perpetrator. Anyone else 

might readily target a drug dealer for the same reason. The fact that a gang member 
31

decides to rob someone whom a friend has identified as a drug dealer has virtually no 

logical tendency to show that the ensuing robbery was done in association with or for the 

benefit of the gang to which he belongs. 

Of the victim-related factors cited by Sergeant Livingston, the only one having 

any genuine gang relationship is the idea that a drug dealer, or any other victim of a crime 

by persons known to be gang members, may be afraid to report the crime, or cooperate in 

its investigation and prosecution, because of the perceived risk that other gang members 

may retaliate. But had the robbers here intended to rely on their gang association to 

intimidate the victim in this manner, they might at least have taken the trouble to inform 

the victim that they were, or knew, gang members. The closest they came to doing so 

was the cryptic cliché ―You don‘t know who you‘re [messing or] fucking with,‖ 

apparently uttered not by any of the defendants, or any obvious gang member, but by a 

―girl‖ who accompanied them when they cased the victim‘s premises. The extent to 

which this hackneyed utterance served to intimidate French is perhaps best reflected in 

the fact he not only testified against defendants but exhibited such open hostility and 

defiance toward them in court as to trigger a motion for mistrial. 

The perpetrators‘ failure to openly brand the robbery as a gang undertaking 

contrasts sharply with cases in which gang members have vociferously announced their 

gang affiliations, thereby explicitly identifying a crime as a gang venture. (See, e.g., 

People v. Miranda (2011) 192 Cal.App.4th 398, 404 [before shooting victim, defendant‘s 

companion asked victim‘s gang affiliation and identified self as ―  ̳San Fer‘ ‖]; id. at 

p. 412 [Expert testified that ―[w]hen a gang member announces his gang affiliation 

during commission of a crime, the entire gang is benefited by an enhanced reputation.‖]; 

People v. Valdez (1997) 58 Cal.App.4th 494, 499 [participants in gang caravan got out of 

vehicles ―yell[ing]  ̳norte,‘  ̳fourteen,‘ and gang names‖].) Here it never seemed to occur 

to the robbers to announce their gang affiliations. If anything, the intimidation factor 
32

cited by Sergeant Livingston—depending as it necessarily does on the victim‘s 

knowledge that the perpetrator is a gang member—supports an inference in this case that 

the robbery was not committed in association with a gang, but was carried out for the sole 

personal benefit of its participants. (See Albarran, supra,. 149 Cal.App.4th at p. 227 

[expert testified that gang member ―gains such respect if his identity (or the identity of 

his gang) becomes known to the victim(s), within the gang community and/or the 

neighborhood,‖ but record contained ―no signs of gang member‘s efforts in that regard—

there was no evidence the shooters announced their presence or purpose—before, during 

or after the shooting‖]; In re Daniel C. (2011) 195 Cal.App.4th 1350, 1363 [crime could 

not enhance gang‘s reputation, as posited by police expert, where ―nothing in the record 

indicate[d] that appellant or his companions did anything while in the supermarket to 

identify themselves with any gang, other than wearing clothing with red on it,‖ and ―there 

was no evidence that Chamblee or any of the other persons who witnessed the crime 

knew that gang members or affiliates were involved‖].).

Next the sergeant asserted that robbing a drug dealer was a good way for gang 

members to ―come up on money quick.‖ He may as well have cited the robbers‘ beer 

drinking as evidence of gang relatedness, since I have no doubt that drinking a beer is a 

good way for gang members to quench a thirst, quick. Testimony so easily ridiculed 

should be recognized for what it is: ridiculous. Evidence that money was being stolen 

for the gang, or that the robbers would contribute a tithe to gang coffers, would support 

the proffered inference. But the mere fact that gang members committed robberies to get 

cash does not distinguish them or their robberies in any way from non-gang robbers or 

robberies. Here again, the actual evidence showed no gang connection beyond 

membership. Indeed Sergeant Livingston described the planners as ―talking about doing 

a robbery because they need[ed] money.‖ (Italics added.) This motive has no more 

relation to gang membership or association than it does to eye color.
33

The facts properly adduced to establish a gang-related purpose here appear weaker 

than those found insufficient in Albarran, supra, 149 Cal.App.4th at pages 227-228. The 

defendant there was charged with crimes and a gang enhancement on evidence that he 

and another young man fired a volley of shots at a house where a party was taking place. 

The prosecutor had no percipient witnesses concerning any gang-related purpose for the 

crime, instead relying entirely on the testimony of a police gang expert. In support of his 

opinion he cited three factors: ―(1) the shooting occurred in Palmdale; (2) it occurred at a 

party and gang members often commit crimes during parties; and (3) more than one 

shooter was involved.‖ (Id. at p. 221.) He also testified that the defendant‘s gang was 

involved in ―an active gang war‖ and that an occupant of the targeted house belonged to 

another gang, though he was unfamiliar with the latter and unaware of any rivalry 

between it and the defendant‘s gang. (Ibid.) After the prosecutor referred extensively to 

the defendant‘s gang involvement, the jury sustained the gang enhancement. The trial 

court, however, set the enhancement aside for want of substantial evidence. On appeal, 

the defendant contended that the court should have granted a new trial on the underlying 

charge because of the prejudicial effect of the gang evidence introduced in support of the 

enhancement. 

The Court of Appeal found the introduction of the gang evidence so prejudicial 

that it rendered the trial fundamentally unfair in violation of the federal guarantee of due 

process. In discussing the rationale on which the evidence had been admitted, the court 

rejected the prosecutor‘s claim that ―the motive for the shooting was to gain respect and 

enhance the shooter‘s reputation.‖ (Albarran, supra, 149 Cal.App.4th at p. 227.) ―On 

the contrary,‖ the court continued, ―the motive for the underlying crimes . . . was not 

apparent from the circumstances of the crime. The shooting occurred at a private 

birthday party . . . . [T]here was no evidence the shooters announced their presence or 

purpose—before, during or after the shooting. There was no evidence presented that any 
34

gang members had  ̳bragged‘ about their involvement or created graffiti and took credit 

for it. In fact, at the [Evidence Code] section 402 hearing Deputy Gillis conceded he did 

not know the reason for the shooting, though he had  ̳heard‘ that gang members were 

present at the party. There is nothing inherent in the facts of the shooting to suggest any 

specific gang motive. In the final analysis, the only evidence to support the respect 

motive is the fact of Albarran‘s gang affiliation.‖ (Ibid.; fn. omitted.) Given these facts, 

the tendency of the expert‘s testimony to inflame the jury against the defendant rendered 

the trial of the underlying charges fundamentally unfair. 

B. Ineffectuality of Limiting Instruction

Nor do I think the prejudicial effect of this evidence was reduced to any 

appreciable degree by the limiting instruction the trial court gave to the jury at the time of 

Sergeant Livingston‘s testimony.13 

There is an oft-repeated judicial shibboleth to the effect that limiting instructions 

of this kind are presumed to be effective. (See, e.g., People v. Waidla (2000) 22 Cal.4th 

690, 725 [―The presumption is that limiting instructions are followed by the jury.‖]; 

People v. Coffman (2004) 34 Cal.4th 1, 43-44; People v. Osorio (2008) 165 Cal.App.4th 

603, 618 [―In the absence of evidence to the contrary, we presume the jury followed the 

 

13

 The court instructed: ―Ladies and Gentlemen, during the course of this witness‘ 

testimony, you either have heard or may hear that he relies on statements by others. To 

the extent that you hear what those statements are, those statements are only offered to 

form the basis of his opinion as things that he relied upon in forming his opinion.

―Those statements are not offered for the truth of the matter that is said to him or 

said that he relies upon, and they cannot be considered by you for their truth. You can 

only consider the statement insofar as it makes sense to you that he relies upon it and 

forms the basis of his opinion. ―Okay?

―I know that that‘s a little bit complex to some, for lack of a better word, but that 

is the reason that those statements are permitted into court. They‘re not offered for the 

truth; they‘re only offered, and only can be considered by you, to support the witness‘ 

opinion, and you‘ll get more instructions about that at the end of the case.‖ 
35

court‘s instructions.‖].)14 As discussed below, I believe this presumption has been 

applied far more freely than can be justified by the competing concerns at stake. But 

whatever its proper scope, it can hardly apply here, because the trial quite explicitly told 

jurors, in its concluding instructions, that they must determine the truth or falsity of any 

―information‖ on which the gang expert had relied. The court instructed that ―[i]n 

evaluating the believability of an expert witness,‖ the jury must ―consider the expert‘s 

knowledge, skill, experience, training, and education, the reasons the expert gave for any 

opinion, and the facts or information on which the expert relied in reaching that 

opinion.‖ (Italics added.) Worse, the court went on immediately to tell the jury that it 

―must decide whether information on which the expert relied was true and accurate.‖ 

(Italics added.) No attempt was made to qualify this statement as it applied to basis 

evidence. Taken literally—and the jurors had no reason to take it otherwise—this 

instruction told them to decide not only whether the hearsay report of a defendant‘s 

girlfriend‘s mother was something on which the expert could reasonably rely, but 

whether that report was true. 

This logically obliterated whatever curative effect the limiting instruction during 

trial might otherwise have had. At best jurors were forced to choose between two 

 

14

 I find it rather disingenuous to suggest that in a proper case a defendant might 

be able to present ―evidence to the contrary.‖ I am unable to imagine how a record could 

ever be realistically expected to contain evidence that an admonition had failed to cure 

prejudice, given that the most probable forms of prejudice consist of psychological 

effects of which jurors themselves are likely to be unconscious. Even if one or more 

jurors self-consciously chose to disregard such an instruction, how would such defiance 

ever become a matter of record? (See Evid. Code, § 1150, subd. (a) [prohibiting 

admission of evidence ―concerning the mental processes by which [the verdict] was 

determined‖]; People v. Morris (1991) 53 Cal.3d 152, 231 [―  ̳[A] verdict may not be 

impeached by inquiry into the juror‘s mental or subjective reasoning processes, and 

evidence of what the juror  ̳felt‘ or how he understood the trial court's instructions is not 

competent.‘ ‖], disapproved on another point in People v. Stansbury (1995) 9 Cal.4th 

824, 830, fn. 1.)
36

conflicting directives. One, given nearly two weeks before they retired to deliberate, 

rested on the challenging concept—―a little bit complex to some,‖ as the trial court 

acknowledged—that basis evidence was not offered for ―the truth,‖ but only ―to form the 

basis of [the expert‘s] opinion as things that he relied upon in forming his opinion.‖ (See 

fn. 13, ante.) Then, as part of their final, formal instructions immediately before retiring, 

they received the far simpler instruction to ―decide whether information on which the 

expert relied was true and accurate.‖ Can anyone doubt which of these directives the jury 

was more likely to follow? At a very minimum, the later instruction created a conflict in 

the treatment of basis evidence which is more than sufficient to dispel any presumed 

curative effect that the earlier instruction might otherwise have had.

As a more general matter, I believe we have gone overboard in our reliance on the 

presumption of cure to insulate from substantive judicial review rulings that expose jurors 

to prejudicial matter. Indeed I find a curious discrepancy between our rote reliance on 

that presumption as a basis for rejecting claims of error, and the recognition, in a different 

appellate context, that the actual benefits of such an instruction may be so ―questionable‖ 

that a defendant may quite reasonably elect to forego them. (People v. Hernandez (2004) 

33 Cal.4th 1040, 1053 [finding that counsel did not render ineffective assistance by 

failing to request an instruction limiting jury‘s use of gang evidence].) Our Supreme 

Court has repeatedly stated that a defense attorney may reasonably elect not to request a 

limiting instruction because it would only ―  ̳emphasize the evidence‘ ‖ it supposedly 

neutralizes. (Ibid., quoting People v. Freeman (1994) 8 Cal.4th 450, 495; see People v. 

Maury (2003) 30 Cal.4th 342, 394; People v. Hawkins (1995) 10 Cal.4th 920, 942, 

overruled on another point in People v. Lasko (2000) 23 Cal.4th 101, 110.)

If counsel can reasonably believe that an admonition would be ineffectual—even 

counterproductive—perhaps the facility with which courts have ―presumed‖ otherwise 

should be reconsidered. Certainly the presumption should be cautiously applied where 
37

federal constitutional interests are at stake. The United States Supreme Court has not 

shown an inclination to entrust cherished constitutional rights to such legal fictions. (See 

Williams, supra, ___ U.S. at p. ____ [132 S.Ct. at p. 2256] (conc. opn. of Thomas, J.), 

citing Bruton v. United States (1968) 391 U.S. 123 [―we have held that limiting 

instructions may be insufficient in some circumstances to protect against violations of the 

Confrontation Clause‖].) Here the fictive presumption that a limiting instruction ―cures‖ 

any improper incrimination otherwise flowing from inadmissible evidence coincides with 

the logical fiction that extrajudicial statements offered solely to explain an expert‘s 

opinion are, for that reason, not offered for the truth of the matter asserted. If both of 

these fictions are given free play in applying the rule of Crawford, then the protections 

afforded by the confrontation clause are puny indeed.

It seems to me that the bucket-loads of incriminating hearsay introduced here in 

violation of defendants‘ right to confront witnesses must have had an inflammatory effect 

upon the jury. I believe that the staggering illogic of much of Sergeant Livingston‘s 

testimony would have been more readily perceived by a jury that had not been prejudiced 

against the defendants in this manner. I certainly cannot pronounce the evidence 

harmless beyond a reasonable doubt. I must therefore conclude that the judgment is 

marred by reversible error.

CONCLUSION

I am relieved at the prospect that confrontation clause jurisprudence, as 

reconfigured and revitalized in Chapman and its progeny, may at last put a stop to 

practices I have long viewed as antithetical to our most fundamental precepts of criminal 

justice. I would not wait for the United States Supreme Court to condemn these 

practices; I would seize this opportunity to step back from the precipice and restore the 

right of criminal defendants—even the most feared and despised—to face their accusers. 

______________________________________

RUSHING, P.J.