Filed 9/1/16 P. v. Perez CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

AGUSTIN PEREZ,

Defendant and Appellant.

 B263400

 (Los Angeles County

 Super. Ct. No. KA104290)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Juan Carlos Dominguez, Judge. Affirmed and remanded for resentencing.

Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb, 

Supervising Deputy Attorney General, Nathan Guttman and Nima Razfar, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

* * * * * *

Agustin Perez (defendant) assaulted a woman who refused to tell him where 

someone he believed to be a rival gang member was located, vandalized the rival gang 

member’s car with gang-related graffiti, and from jail directed two other people to track 

down and intimidate both victims. A jury convicted him of charges related to all three 

incidents, and he was sentenced to prison for 56 years, four months to life. On appeal, 

defendant raises a number of challenges to his convictions and to his sentence. We 

affirm his convictions, but vacate his sentence and remand for resentencing.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Robbery and assault

In December 2013, a woman and a man wearing a mask approached Angela 

Rodriguez (Rodriguez) and Santiago Grajeda (Grajeda) while they were in the backyard 

of Rodriguez’s friend’s house. The masked man stated, “This is Bassett Grande,” which 

is the name of a local gang; the man also asked whether Rodriguez or Grajeda had any 

gang affiliation. Rodriguez gave her true name, and said she did not “bang.” Grajeda did 

not give his real name, and did not admit that he was a member of Bassett Grande’s rival 

gang, the Desmadres. Both the woman and the masked man left, and Grajeda fled into 

the house. The woman returned a few minutes later to say that “Pelon” was on his way. 

Defendant is a Bassett Grande gang member who uses the moniker “Pelon.”

A few minutes later, the masked man returned to the backyard with defendant. 

Defendant was carrying a semiautomatic gun in his hand. He asked Rodriguez where 

Grajeda was. She said she did not know. Defendant then demanded her cell phone, and 

she refused. The masked man kicked her until she fell to the ground, and defendant 

grabbed her cell phone and proceeded to pistol whip her on the head until she lost 

consciousness. As a result of this beating, Rodriguez had a broken ankle, lacerations to 

her ear and cheek, and swelling in her head; she suffered temporary hearing loss and 

permanent damage to her long-term memory.
3

B. Vandalism

Just hours after assaulting Rodriguez, defendant returned to Rodriguez’s friend’s 

house and vandalized Grajeda’s car, which was parked in the driveway. On the exterior 

of the car, defendant used a small knife to etch the letters “B” and G” (the initials for 

Bassett Grande), the name “Belon” (defendant’s moniker with a “B” instead of a “P”),

and the words “pussy” and “ran like a bitch.” Defendant also slashed the car’s tires and 

the interior seats. The damage to the car exceeded $400.

C. Witness intimidation

In January and February 2014, while defendant was in jail, he made 136 calls to 

Jessica Yorba (Yorba), Josephine Martinez (Martinez) and others. During those calls, 

defendant directed various people to track down Rodriguez’s and Grajeda’s addresses, to 

“get ahold of” and “talk to” Rodriguez, and to give Desmadres gang members the police 

reports detailing Grajeda’s cooperation with police (which would prompt those gang 

members to retaliate against Grajeda).

II. Procedural History

In the operative, first amended information, the People charged defendant with six 

felonies. For the assault on Rodriguez, the People charged defendant with (1) robbery 

(Pen. Code, § 211),

1

(2) assault with a semiautomatic firearm (§ 245, subd. (b)), and 

(3) assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)). For 

damaging Grajeda’s car, the People charged defendant with vandalism (§ 594, subd. 

(a)(4)). And for the jailhouse calls, the People charged defendant with (1) conspiring to 

attempt to dissuade a witness (§ 182, subd. (a)(1)), and (2) attempting to dissuade a 

witness with malice and in furtherance of a conspiracy (§ 136.1, subd. (c)(2)).

2

As to the crimes against Rodriguez, the People alleged that defendant personally 

 

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

2 Yorba and Martinez were also charged in these two counts, as well as for 

possessing a controlled substance (Health & Saf. Code, § 11378).
4

used a semiautomatic firearm (§ 12022.53, subd. (b)) and that he personally inflicted 

great bodily injury (§ 12022.7, subd. (a)). As to all of the crimes, the People alleged that 

they were committed for the benefit of, at the direction of, or in association with a 

criminal street gang (§ 186.22, subd. (b)). The People further alleged that defendant’s 

1993 conviction for attempted murder was a “strike” within the meaning of our Three 

Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and a prior “serious” felony 

(§ 667, subd. (a)(1)), and that defendant had served prior prison terms (§ 667.5, subd. (b)) 

for the attempted murder conviction, and for each of his 2008 convictions for possessing 

a firearm (former § 12021, subd. (a)(1)) and possessing methamphetamine (Health & Saf. 

Code, § 11377, subd. (a)).

A jury convicted defendant of all six counts, and found all offense-related 

allegations true. In a bifurcated proceeding, the trial court found true the allegations 

regarding defendant’s prior convictions.

The trial court sentenced defendant to prison for a term of 56 years, four months to 

life. As to the assault on Rodriguez, the court imposed a prison sentence of 40 years on

the assault with a semiautomatic firearm count, comprised of a 12-year base sentence (six 

years, doubled because of defendant’s prior strike), plus 20 years (10 years each, for the 

personal use of the firearm and gang enhancements), plus five years for his prior 

“serious” felony conviction, plus three years because defendant inflicted great bodily 

injury. The court imposed but stayed, under section 654, a 34-year prison sentence on the 

robbery count and a 34-year prison sentence on the assault by means likely to produce 

great bodily injury count. For the vandalism to Grajeda’s car, the court imposed a 

consecutive prison sentence of two years and four months, comprised of 16 months for 

the vandalism (which was one-third of the two-year, mid-term sentence, doubled because 

of defendant’s prior strike) plus one year for the gang enhancement (which was one third 

of the three-year, mid-term sentence). For the witness intimidation crimes, the court 

imposed a consecutive prison sentence of 14 years to life on the conspiracy count, using a 

base term of seven years to life under the gang enhancement for a crime involving

“threats to victims and witnesses” (§ 186.22, subd. (b)(4)(C)), doubled because of 
5

defendant’s prior strike. The court imposed but stayed under section 654, a 14-year-tolife prison sentence on the attempted dissuasion count.

Defendant timely appeals.

DISCUSSION

I. Evidentiary Issues

A. Witness intimidation counts

The People alleged 10 overt acts in the conspiracy to attempt to dissuade a witness 

count. The related, attempted dissuasion count seemingly relies on the same overt acts. 

Eight of the 10 overt acts are based on specific telephone calls between defendant and his 

alleged coconspirators. At trial, the People did not introduce the tapes or transcripts of 

the conversations. Instead, for the overt acts involving telephone calls, the prosecutor 

called the investigating officer, Detective Liliana Jara (Detective Jara), as a witness; 

asked her to quote verbatim, paraphrase or summarize the relevant calls; and, for certain 

calls, asked her either to interpret the coded language defendant and his coconspirators 

were using or to explain the meaning of the calls using her expertise or her knowledge 

pertaining to her investigation. The following table sets forth the 10 alleged overt acts, 

how Detective Jara presented the content of the calls, and any additional testimony she 

offered with respect to each call.

No. Alleged Overt Act Detective Jara’s Testimony 

Regarding The Call’s Content

Detective Jara’s Additional 

Testimony

1 Telephone call: 

Defendant tells Yorba 

where Grajeda lives and 

instructs Yorba to have 

“Junior” contact someone 

who knows Rodriguez.

(1) Defendant tells Yorba to 

have “Junior, to work on Selena, 

Chuca, to take care of that.”

(2) Defendant says, “[T]ell her 

this in code . . . The homie 

Dopey, where he used to live, 

she’ll know on that street. Um, 

Ernie, Ernie’s old neighborhood, 

the homeboy that lives on that 

street might be . . . Dude might 

(1a) “Selena” was Rodriguez’s exgirlfriend, and Detective Jara knows 

this (i) because Yorba explained on 

another call that Yorba had “served 

time” with Rodriguez and learned 

that Selena knew where Rodriguez 

lived (Overt Act 2), and (ii) because 

of her investigation.

(1b) Based on the prior relationship 

between Selena and Rodriguez, 
6

No. Alleged Overt Act Detective Jara’s Testimony 

Regarding The Call’s Content

Detective Jara’s Additional 

Testimony

be saying something. Go talk to 

him. Um, and to have Ernie go 

talk to him.”

defendant wants Yorba to have 

Junior talk to Rodriguez.

(2) The “[d]ude” that defendant 

wants Ernie to talk to is Grajeda, and 

Detective Jara believes this is so 

because Grajeda is the only male

victim in the case.

2 Telephone call: 

Yorba tells defendant that 

she will locate Rodriguez.

Yorba tells defendant, “I know 

her. She used to call herself my 

brother

3

. . . I know her really 

good. She used to be with 

Selene [sic] . . .” Then 

defendant says, “Oh, Okay. 

Selena. Look at, well, look, 

look, get ahold of her. Tell 

Junior to get ahold of her. And 

go talk to her.”

In her “opinion,” the call reflects 

Yorba agreeing to locate Rodriguez.

3 Telephone call: Yorba 

tells defendant that 

“Junior” has made contact 

with a witness.

Defendant is concerned that 

things are not working out and 

Yorba tells him, “Junior already 

went to go to what you told him 

to do. . . . He went to where you 

said.”

None.

4 Telephone call: Yorba 

tells defendant that she 

has received the names of 

witnesses from 

defendant’s former 

defense attorney and is 

Defendant asks, “Have you 

talked to Jose . . . has he read 

into the report or anything?” 

Yorba responds, “I am on it.” 

Defendant says, “[T]ell him I 

want a copy of the report. The 

(1) “Jose” was the defendant’s 

former attorney.

(2) Yorba knows Rodriguez, and 

Detective Jara knows this because 

Yorba admitted to that fact during a

post-arrest interview (“because [I] 

 

3 The record indicates that Rodriguez described herself as “look[ing] like a male.”
7

No. Alleged Overt Act Detective Jara’s Testimony 

Regarding The Call’s Content

Detective Jara’s Additional 

Testimony

trying to find the 

witnesses.

whole report . . . because there’s 

names on there, you know.” 

Yorba responds, “There’s three 

people on the report . . . [a]nd he 

already gave me the names, and 

I have to find out where they’re 

at and stuff.” Defendant says, 

“We’ll talk about it when I get 

out. But, um, your friend is the 

one that worries me the most.”

went to prison with her.”)

(3) The “friend” defendant is 

“worrie[d] [] most” about is 

Rodriguez, and Detective Jara 

believes this because the charges 

involving Rodriguez (assault and 

robbery) carry the heaviest penalty.

5 Telephone call: “Junior” 

tells defendant that he 

received information that 

Rodriguez was at a certain 

location, and that he went 

there, but did not find her.

“Junior” tells defendant that 

(1) he got a call from “BB” and 

“Grumps,” who said that 

Rodriguez was at a party, (2) he 

rushed over to the party, but the 

lady was not Rodriguez.

“Junior” is Robert Alvarez, a Bassett 

Grande gang member, which 

Detective Jara knows because of her 

investigation.

6 On January 16, 2014, 

Yorba received copies of 

police reports from 

defendant’s former 

attorney.

Yorba tells defendant on a 

January 17, 2014 telephone call 

that she obtained the reports.

None.

7 Telephone call: 

Defendant tells Yorba to 

have Salvador Andrade 

contact two witnesses and 

to provide a copy of the 

police reports to Grajeda’s 

gang associates.

Defendant tells Yorba (1) to 

“have Sal go visit” “Yolie’s 

daughter Destiny,” and (2) to 

show the “paperwork” to 

Grajeda’s “homies.”

(1) Salvador Andrade is one of 

defendant’s fellow gang members.

(2) Showing police reports indicating 

that Grajeda avoided a gang 

confrontation to Grajeda’s fellow 

gang members will prompt them to 

discipline Grajeda for his cowardice.

8 Telephone call: Martinez 

tells defendant she has 

obtained contact 

Call is summarized as Martinez 

informing defendant that she 

sent the items defendant 

None.
8

No. Alleged Overt Act Detective Jara’s Testimony 

Regarding The Call’s Content

Detective Jara’s Additional 

Testimony

information for witnesses 

and given it to defendant’s 

former attorney.

requested to the attorney, 

including addresses, and is 

waiting on finding the last 

person.

9 On February 4, 2014, 

Martinez and Yorba were 

in possession of a 

notebook containing the 

name and address of 

Rodriguez.

Detective Jara testified to the 

seizure of items from a motel 

room rented by Yorba, and 

where Yorba, Martinez, 

Salvadaor Andrade and others

were present.

N/A

10 On February 4, 2014, 

Martinez and Yorba were 

in possession of police 

reports regarding the 

assault on Rodriguez.

Detective Jara testified to the 

seizure of items from a motel 

room rented by Yorba, and 

where Yorba, Martinez, 

Salvadore Andrade and others

were present.

N/A

Defendant raises five objections to this evidence.

1. Method of introducing evidence regarding telephone calls

Defendant argues that the trial court erred in allowing the People to admit 

evidence regarding the calls through Detective Jara’s quoting, paraphrasing or 

summarizing the calls, rather than by playing the calls themselves while the jury followed 

along with written transcripts. Specifically, defendant argues that the People’s 

methodology (1) violated California Rules of Court, rule 2.1040(a), (2) violated due 

process, and (3) violated the secondary evidence rule (Evid. Code, § 1520 et seq.) The 

first two issues entail questions of law we review de novo (Sino Century Development 

Limited v. Farley (2012) 211 Cal.App.4th 688, 693; In re J.H. (2007) 158 Cal.App.4th 

174, 183), while the third involves the admission of evidence that we review for an abuse 

of discretion (People v. Hovarter (2008) 44 Cal.4th 983, 1013 (Hovarter)).
9

a. California Rules of Court, rule 2.1040(a)

California Rules of Court, rule 2.1040(a)(1) provides, in pertinent part, that 

“[b]efore a party may present or offer into evidence an electronic sound or sound-andvideo recording of deposition or other prior testimony, the party must lodge a transcript 

of the deposition or prior testimony with the court.” The People did not violate this rule 

because the jailhouse calls are not a “deposition or other prior testimony” and because the 

People never “present[ed] or offer[ed]” recordings of those calls “into evidence.”

b. Due process

As pertinent here, a criminal defendant’s constitutional right to due process 

guarantees that the People must prove every element of any crime beyond a reasonable 

doubt (In re Winship (1970) 397 U.S. 358, 363), and prohibits a court from shifting that 

burden onto the defendant (e.g., Sandstrom v. Montana (1979) 442 U.S. 510, 524). 

Defendant contends that the People impermissibly shifted the burden of proving the 

conspiracy and attempted dissuasion counts onto him by (1) not introducing the jailhouse 

calls themselves, thereby requiring defendant to do so if he wished to impeach Detective 

Jara’s quotation, paraphrasing or summary of those calls, and (2) eliciting from Detective 

Jara, during her second redirect testimony, that defendant’s attorney had been given tapes 

of the jailhouse calls and could have played them for the jury. Neither of defendant’s 

contentions has merit.

As to defendant’s first contention, the trial court instructed the jury that the People 

had to prove every element of the conspiracy and attempted dissuasion counts beyond a 

reasonable doubt, and the People introduced Detective Jara’s testimony to prove those 

crimes rather than playing all or some of the 136 jailhouse calls. What is more, the 

People disclosed the recordings of all 136 calls to the defense, along with reports 

containing Detective Jara’s transcriptions for five of the eight calls alleged as overt acts. 

Because defendant has offered no authority for the proposition that due process compels 

the People to prove their allegations with any particular evidence or in any particular 

manner, the People’s decision to use Detective Jara’s testimony rather than playing the 
10

tapes did not offend due process.

As to defendant’s second contention, the People elicited testimony regarding 

defense counsel’s possession of the jailhouse call tapes and his ability to play them for 

the jury if he so chose. This did not violate due process. Prosecutors may 

“comment[] . . . upon the failure of the defense to introduce material evidence or to call 

anticipated witnesses” (People v. Bradford (1997) 15 Cal.4th 1229, 1339), and “such 

commentary does not ordinarily . . . imply that the defendant bears a burden of proof” 

(People v. Lewis (2004) 117 Cal.App.4th 246, 257). Further, the testimony defendant 

now attacks as improper was elicited only after defendant questioned Detective Jara 

about why she did not fully transcribe all of the calls in her reports.

c. Secondary evidence rule

The secondary evidence rule generally provides that “oral testimony is not 

admissible to prove the content of a writing” (Evid. Code, § 1523, subd. (a)), and a 

“writing” includes “every other means of recording . . . any form of communication . . . , 

including . . . sounds” (Evid. Code, § 250). Defendant argues that Detective Jara’s 

quoting, paraphrasing or summarizing of the jailhouse calls offends this rule. Defendant 

has forfeited this argument because he did not object to the tapes on this basis before the 

trial court (Evid. Code, § 353), and did not raise this argument on appeal until his reply 

brief (People v. Rangel (2016) 62 Cal.4th 1192, 1218-1219 [“‘arguments made for the 

first time in a reply brief will not be entertained because of the unfairness to the other 

party’”]). Defendant’s argument is without merit in any event. The rule prohibiting oral 

testimony does not apply “if the writing consists of numerous accounts or other writings 

that cannot be examined in court without great loss of time, and the evidence sought from 

them is only the general result of the whole.” (Evid. Code, § 1523, subd. (d).) Here, the 

prosecutor informed the trial court that playing each of the jailhouse tapes would add 

days to the length of the trial, and defendant’s criminal liability on both the conspiracy 

and attempted dissuasion counts turned on the totality of his conduct and not any 

individual call. Moreover, because defendant’s appeal focuses chiefly on Detective 

Jara’s testimony explaining the jailhouse calls rather than challenges to the accuracy of 
11

her testimony quoting, paraphrasing or summarizing the calls, he has made no showing 

that a different result is reasonably probable had the tapes themselves been played for the 

jury. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)

2. Detective Jara’s testimony as an expert witness

Defendant next asserts that the trial court erred in allowing Detective Jara to offer 

her opinion on the meaning of jailhouse calls and on the conduct of gang members 

generally because she was not an expert witness and because her testimony was in any 

event “unnecessary” because “the jury could have drawn its own inferences and 

conclusions” about the calls. We review challenges to expert testimony for an abuse of 

discretion. (People v. Montes (2014) 58 Cal.4th 809, 861.)

To begin, we reject defendant’s assertion that Detective Jara did not testify in part 

as an expert witness. Although at times she testified as a lay witness to matters she 

personally perceived (Evid. Code, § 800), she also offered opinions on matters not 

personally perceived by her on a variety of topics, including how and why gang members 

declare their gang affiliation, how gangs do not allow non-members to claim gang 

membership or permit their members to have the same moniker, how gang members are 

expected to “stand up” to and confront members of a rival gang, how gangs will beat up 

their own members who cooperate with police, that “paperwork” refers to police reports 

and the like, and that various terms used on the jailhouse calls had certain meanings. 

These are topics reserved for expert witnesses. (E.g., People v. Gonzalez (2006) 

38 Cal.4th 932, 945-946 [gang expert testimony on gang culture].) Indeed, defendant 

also treated Detective Jara as an expert, asking her to explain gang culture and define 

gang terminology, and once going so far as to ask her a hypothetical question.

Further, the trial court did not abuse its discretion in concluding that Detective 

Jara’s expert testimony on these matters was appropriate. A expert may offer her opinion 

if: (1) she “has special knowledge, skill, experience, training, or education sufficient to 

qualify [her] as an expert on the subject to which [her] testimony relates” (Evid. Code, 

§ 720, subd. (a)); (2) her opinion is “[r]elated to a subject that is sufficiently beyond 

common experience that the opinion of an expert would assist the trier of fact”
12

(Evid. Code, § 801, subd. (a)); and (3) her opinion is “[b]ased on matter . . . perceived by 

or personally known to the witness or made known to him at or before the hearing, 

whether or not admissible, that is of a type that reasonably may be relied upon by an 

expert in forming an opinion upon the subject to which [her] testimony relates” (id., subd. 

(b)). Detective Jara testified that she spent years investigating gang crimes, and this 

experience qualified her to offer testimony on gang culture. Courts have repeatedly held 

that the elements of gang culture, including the slang they use, are beyond the ken of 

most jurors and thus an appropriate topic for expert testimony. (People v. Lindberg

(2008) 45 Cal.4th 1, 46-47 [gang terminology]; People v. Champion (1995) 9 Cal.4th 

879, 924-925 [same]; see generally People v. Albillar (2010) 51 Cal.4th 47, 60-64, 68 

[gang culture generally].) Indeed, defendant himself seems to acknowledge the need for 

expert testimony when he elsewhere characterizes the jailhouse calls as “enigmatic” and 

“ambiguous” due to their “vague, cryptic statements.”

3. Hearsay and confrontation clause

Defendant also asserts that Jara’s testimony regarding the content of the jailhouse 

calls as well as her additional testimony interpreting or explaining those calls violated the 

hearsay rule or the confrontation clause. As noted above, we review evidentiary 

questions for an abuse of discretion (Hovarter, supra, 44 Cal.4th at p. 1013); we 

independently review the application of the confrontation clause to the facts in a 

particular case (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 964).

The hearsay rule declares inadmissible any statement made out-of-court if that 

statement is offered for its truth. (Evid. Code, § 1200, subds. (a) & (b).) Since Crawford 

v. Washington (2004) 541 U.S. 36, 68-69 (2004) (Crawford), the confrontation clause has 

rendered inadmissible any out-of-court statement that is “testimonial” within the meaning 

of Crawford unless the person who made that statement is available for crossexamination at trial or was available for cross-examination at a prior proceeding.

a. Jailhouse calls

Defendant argues that the trial court violated the hearsay rule in allowing 

Detective Jara to testify about the content of the jailhouse calls because the statements of 
13

defendant, Yorba, Martinez and others contained on those tapes do not fit within the 

coconspirator exception to the hearsay rule. The coconspirator exception empowers a 

court to admit an out-of-court statement for its truth if: (1) “[t]he statement was 

made . . . while participating in a conspiracy to commit a crime . . . and in furtherance of 

the objective of that conspiracy”; (2) “[t]he statement was made prior to or during the 

time that the party was participating in that conspiracy”; and (3) there is “independent 

evidence” of the conspiracy aside from the out-of-court statement itself. (Evid. Code, 

§ 1223; In re Hardy (2007) 41 Cal.4th 977, 995-996.) These requirements are met here. 

All of the statements on the jailhouse calls are between charged and uncharged 

coconspirators, and involve tracking down and speaking to the victims of defendant’s 

earlier crimes; the statements all occurred while the conspiracy was ongoing; and the 

prosecutor adduced sufficient evidence of the conspiracy’s existence apart from the calls 

when he introduced evidence that Yorba, Martinez and Salvador Andrade (whom the 

calls indicate was enlisted in the effort to dissuade witnesses) were arrested in a hotel 

room with the police reports from defendant’s case, a notebook containing Rodriguez’s 

address, and multiple firearms.

b. Detective Jara’s additional testimony

Defendant next argues that Detective Jara’s additional testimony contained in the 

far right column of the table (ante, at pp. 6-9), is both inadmissible hearsay and is based 

upon inadmissible, “testimonial” statements under Crawford.

Until recently, an expert could testify about out-of-court statements that formed 

the basis for her opinion, even if the statements would have otherwise been inadmissible 

under the hearsay rule. (E.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620.) 

These earlier cases rested on the notion that the out-of-court statements were not being 

admitted for their truth, but instead for their effect on the hearer (namely, the expert). 

(People v. Montiel (1993) 5 Cal.4th 877, 919 [“matters admitted through an expert go 

only to the basis of his opinion and should not be considered for their truth.”].)

However, in People v. Sanchez (2016) 63 Cal.4th 665, 678 (Sanchez), our 

Supreme Court overruled this earlier precedent and reinstituted a distinction earlier cases 
14

had “blurred.” Under Sanchez, an expert witness may testify about “background 

information regarding [her] knowledge and expertise” as well as “premises generally 

accepted in [her] field,” even if that knowledge, expertise, or premises are based on what 

the expert has learned from out-of-court statements. (Id. at p. 685; see also id. at pp. 676, 

684.) However, an expert may no longer testify to “case-specific out-of-court statements 

to explain the bases for [her] opinion” unless they fit within an exception to the hearsay 

rule; the relevance of the expert’s opinion hinges on the truth of such statements, the 

court reasoned, so they are “necessarily considered by the jury for their truth.” (Id. at pp. 

684, 686.) What is more, because a statement may be “testimonial” within the meaning 

of Crawford if it is admitted for its truth (Crawford, supra, 541 U.S. at p. 59, fn. 9), 

Sanchez’s new rule means that courts must also analyze an expert witness’s testimony 

relaying “case-specific out-of-court statements” to assess its compliance with both the 

hearsay rule and with Crawford. (Sanchez, at pp. 686-687.)

The additional testimony Detective Jara offered in interpreting or explaining the 

jailhouse calls falls into four general categories, and we will assess the propriety of each 

separately.

First, at least one of Detective Jara’s explanations relied upon “background 

information” or other “general knowledge in [her] field of expertise” falling outside of 

Sanchez’s rule and which is still not deemed to be admitted for its truth. This testimony 

consequently presents no hearsay or Crawford issues. (Sanchez, supra, 63 Cal.4th at 

p. 676.) Sanchez’s testimony about the effect of giving “paperwork” about Grajeda’s 

cooperation to Grajeda’s fellow gang members falls into this category.

Second, Detective Jara offered testimony that constitutes her opinion as to the 

meaning of certain statements. Sanchez held that “[a]n expert is . . . allowed to give an 

opinion about what [case-specific] facts may mean” in order to “help jurors understand

the significance of those [] facts” as long as those facts are properly admitted through 

other evidence. (Sanchez, supra, 63 Cal.4th at p. 676.) Thus, Sanchez does not bar 

Detective Jara from testifying to her opinion that the “dude” referred to in Overt Act 1 

was Grajeda, her opinion that defendant was trying to get Yorba to have “Junior” speak 
15

with Rodriguez in Overt Act 1, her opinion that Yorba in the call underlying Overt Act 2 

was agreeing to meet Rodriguez, or her opinion that the “friend” defendant was most 

worried about in Overt Act 4 was Rodriguez. That is because those opinions were based 

upon the language in the calls themselves, her personal knowledge about the 

investigation, and/or her opinion. (Sanchez, at p. 31 [an “expert’s own knowledge and 

investigation” are “admissible as personal knowledge”].) Those opinions were not based 

on and did not relay any case-specific, out-of-court statements made by others, and thus 

present no hearsay or Crawford issues. Further, the trial court instructed the jury that it 

could accept or reject an expert’s opinion.

Third, Detective Jara on a few occasions testified to facts based on case-specific, 

out-of-court statements, but those statements were properly admitted elsewhere. 

Detective Jara testified that “Selena” was Rodriguez’s ex-girlfriend and that Yorba and 

Rodriguez knew each other, but Yorba admitted both of these facts in the call underlying 

Overt Act 2. Because Overt Act 2 involved a call between coconspirators, Yorba’s 

statements on that call fall within the coconspirator exception to the hearsay rule and are 

not “testimonial” under Crawford. (People v. Blacksher (2011) 52 Cal.4th 769, 816-817 

[out-of-court statements not “testimonial” if not made to “law enforcement” or otherwise 

“to create an out-of-court substitute for trial testimony”].) Detective Jara’s testimony that 

she also learned of Yorba’s contacts with Rodriguez through Yorba’s post-arrest 

statement accordingly is of no consequence.

Lastly, Detective Jara testified to several case-specific facts that may have been

based on her personal knowledge or based on case-specific, out-of-court statements—

namely, that “Jose” was defendant’s former attorney (in Overt Act 4), that “Junior” is 

Bassett Grande gang member Robert Alvarez (in Overt Act 5), that Salvador Andrade is a 

Bassett Grande gang member (in Overt Act 7), that statements on jailhouse calls not 

alleged as overt acts had particular meanings, and that Grajeda belonged to the rival 

Desmadres gang. We need not decide whether introduction of this additional testimony 

violated the hearsay rule or Crawford because any error was harmless beyond a 

reasonable doubt. (People v. Trujeque (2015) 61 Cal.4th 227, 275 [Crawford error 
16

assessed to see whether it is harmless beyond a reasonable doubt]; People v. Seumanu

(2015) 61 Cal.4th 1293, 1308 [error under hearsay rule assessed to see whether there is a 

reasonable probability of a different result].) The admission of evidence regarding the 

identities of Jose and “Junior” as well as Salvador Andrade’s gang affiliation are 

harmless beyond a reasonable doubt because what matters to the charged offenses was 

defendant’s efforts to locate and persuade the victims of his crimes, not the real names or 

affiliations of the people he used to do it. The admission of Detective Jara’s 

interpretations of statements made on other calls are harmless for the same reason; those 

calls were not charged as overt acts and were not necessary to explain the charged overt 

acts. Grajeda’s actual gang affiliation is also irrelevant; what matters for purposes of the 

charged offenses is whether defendant believed Grajeda belonged to a rival gang, and his 

acts in vandalizing Grajeda’s car and in asking Yorba to see that “paperwork” with 

Grajeda’s name was given to Grajeda’s “homies” (in Overt Act 7) overwhelmingly 

establish defendant’s belief.

4. Usurping the jury’s function

Defendant contends that the trial court erred in admitting Detective Jara’s 

additional testimony because that testimony usurped the jury’s function. Experts may 

offer opinions that “embrace[] the ultimate issue to be decided” (Evid. Code, § 805), but 

may not “express[] a general belief as to how the jury should decide the case” (People 

v. Lowe (2012) 211 Cal.App.4th 678, 684). If they do the latter, they have impermissibly 

“invade[d] the province of the jury to decide a case.” (Ibid.) Detective Jara’s additional 

testimony did not cross this line. Defendant focuses on that portion of Detective Jara’s 

testimony where she provided her opinion as to what she believed participants on three of 

the calls really meant when they intentionally used coded language. But her opinion did 

not “express a general belief as to how the jury should decide the case”; rather, she

provided her opinion as to what the parties to the call meant when their words were 

placed in the broader context of what she had learned from her investigation. Contrary to 

what defendant asserts in his brief, defendant could have proffered a contrary explanation 

either by choosing to testify himself or by calling an expert witness of his own. 
17

Defendant cites two federal Second Circuit cases barring expert witnesses from testifying 

to the “‘meaning of conversations in general, beyond the interpretation of code words.’ 

[Citation.]” (United States v. Mejia (2d Cir. 2008) 545 F.3d 179, 192-193; United States 

v. Dukagjini (2d Cir. 2002) 326 F.3d 45, 54.) These cases are irrelevant because

California allows experts to “give an opinion about what [case-specific] facts may mean.” 

(Sanchez, supra, 63 Cal.4th at p. 676.)

5. Sufficiency of the evidence

Defendant contends that the conspiracy and attempted dissuasion convictions are 

not supported by substantial evidence if the jailhouse calls or Detective Jara’s additional 

testimony regarding those calls are excluded. Because we have concluded that both the 

calls and Detective Jara’s additional testimony were either properly admitted or that their 

erroneous admission was harmless beyond a reasonable doubt, we necessarily reject 

defendant’s related sufficiency-of-the-evidence challenge.

B. Gang enhancement

As part of their case-in-chief, the People called a gang expert who testified that 

defendant’s assault on Rodriguez, his vandalism to Grajeda’s car, and his conspiracy and 

attempts to dissuade Rodriguez and Grajeda from testifying were for the benefit of, at the 

direction of, or in association with the Bassett Grande gang. Defendant called his own 

gang expert, who testified that an assault upon a woman could “never” benefit a gang 

because gangs categorically condemn “violence against women and children.” In 

rebuttal, the People called a Los Angeles County prosecutor who testified that he had 

prosecuted two cases in which the People’s theory was that gang members had murdered 

a woman to benefit the gang. The prosecutor did not testify to the jury’s verdicts in those 

cases during his direct testimony, but he testified to the resulting guilty verdicts during

cross-examination.

Defendant argues that the trial court erred in allowing the prosecutor to testify 

(1) under Evidence Code section 352, and (2) under Crawford, supra, 541 U.S. 36. As 

noted above, we review the first question for an abuse of discretion and the second de 

novo.
18

We agree with defendant that the trial court may have erred in admitting the 

testimony. On direct examination, the prosecutor testified solely about his prosecutorial 

theory in the two prior cases. In so doing, he was testifying as a lay witness to that theory 

based on his personal knowledge, and in that respect, did not run afoul of Crawford as 

recently interpreted in Sanchez, because he was not testifying to any “case-specific, outof-court statements.” However, the simple fact that the gang members in the prior cases 

were alleged to have murdered women to benefit their gangs does not rebut the defense’s 

expert witness’s testimony that gang members do not harm women; the defense expert’s

testimony is rebutted only if the allegations in the prior cases are true and only if those 

gang members did, in fact, murder women to benefit their gangs. Because the allegations 

themselves had little or no probative value, the court likely abused its discretion in 

admitting the prosecutor’s testimony under section 352. (Evid. Code, § 352 [requiring 

court to exclude evidence when its “probative value” is “substantially outweighed by the 

probability that its admission will . . . create substantial danger of undue prejudice, of 

confusing the issues, or of misleading the jury”].) However, the prosecutor’s testimony 

on direct examination became relevant once the prosecutor, during cross-examination, 

testified that the juries in those two cases returned guilty verdicts; those verdicts 

established the truth of the allegations in the prior cases that gang members had assaulted 

women. The verdicts themselves are ostensibly the case-specific, out-of-court statements 

of the juries. (Sanchez, supra, 63 Cal.4th at p. 684.)

However, we need not decide whether the elicitation of the juries’ verdicts on 

cross-examination violated Sanchez or if their elicitation in response to questions from 

defense counsel amounts to ineffective assistance of counsel. (See People v. Harrison

(2005) 35 Cal.4th 208, 235.) That is because the admission of the prior juries’ verdicts, 

and, indeed, the prosecutor’s testimony as a whole, was harmless beyond a reasonable 

doubt. The evidence that the assault on Rodriguez was gang related is overwhelming: 

The masked man told Rodriguez, “This is Bassett Grande” and asked for her gang 

affiliation; the woman with him told her defendant was coming and referred to him by his 
19

gang moniker; defendant arrived a few minutes later and did not beat Rodriguez until she 

refused to disclose Grajeda’s whereabouts; and defendant etched gang-related graffiti on 

Grajeda’s car just hours later. Consequently, even if defense counsel had provided 

deficient performance, it is not reasonably probable that admission of this evidence 

would have lead to a different outcome and any claim of ineffective assistance is without 

merit. (Strickland v. Washington (1984) 466 U.S. 668, 694.)

II. Instructional Errors

We review jury instructions de novo. (People v. Vega (2015) 236 Cal.App.4th 

484, 495.)

A. Attempted dissuasion jury instructions

If a person “[k]nowingly and maliciously attempts to prevent or dissuade a witness 

or victim from attending or giving testimony at any trial, proceeding, or inquiry 

authorized by law,” he is guilty of a misdemeanor. (§ 136.1, subd. (a)(2).) If he does so

“knowingly and maliciously” and “in furtherance of a conspiracy,” he is guilty of a 

felony. (Id., subd. (c)(2).) To be convicted of this felony, the People must prove that 

(1) the defendant tried to prevent or discourage a victim or witness from attending or 

giving testimony at a trial, proceeding, or inquiry, (2) the defendant acted maliciously,

and (3) the defendant acted with the intent to assist a conspiracy to intimidate the victim 

or witness. (CALCRIM Nos. 2622, 2623; accord, Harris v. Garcia (N.D.Cal. 2010) 

734 F.Supp.2d 973, 1004.) Defendant contends that the trial court’s jury instructions on 

this offense suffer from two defects.

4

First, defendant asserts that the trial court erred in not giving a unanimity 

instruction. Where a defendant commits several acts, each of which might constitute a 

discrete crime, a trial court is required to instruct the jury that it must unanimously agree 

on which of the defendant’s acts constitute the crime, even if a unanimity instruction is 

not requested. (People v. Hernandez (2013) 217 Cal.App.4th 559, 569.) However, this 

 

4 Defendant also argues that the trial court incorrectly referred to the attempted 

dissuasion count as a “conspiracy” count. This mistake had no impact on the jury’s 

verdict, and thus provides no basis for disturbing its verdict.
20

requirement of jury unanimity does not apply to the legal basis or theory upon which the 

defendant is found guilty. (People v. Morelos (2008) 168 Cal.App.4th 758, 765-766; 

People v. Griffin (2001) 90 Cal.App.4th 741, 750 [“jurors are not required to 

unanimously agree upon the mode of commission”].) Thus, whether some jurors thought 

that a defendant tried to “prevent” a witness from testifying, while others thought he tried 

to “dissuade” them, is of no consequence. The unanimity requirement also does not 

apply to crimes that “contemplate[] a continuous course of conduct of a series of acts

over a period of time” rather than a discrete act. (People v. Thompson (1984) 

160 Cal.App.3d 220, 224.) Section 136.1 is just such a crime because, as the Court of 

Appeal held in People v. Salvato (1991) 234 Cal.App.3d 872, 883, its essence is “the 

cumulative outcome of any number of acts.” Defendant nonetheless contends that the 

jury should have been instructed to agree unanimously upon which victim—Rodriguez or 

Grajeda—he attempted to dissuade as part of a conspiracy. We disagree. If a jury need 

not unanimously agree on which specific acts the defendant commits, it need not 

unanimously agree against whom those specific acts were committed. This is particularly 

poignant for the crime of attempted dissuasion, where what matters is the defendant’s 

efforts rather than his success as to any particular victim.

Second, defendant argues that attempted dissuasion is, at bottom, an “attempt” 

crime and that the trial court was accordingly obligated to instruct the jury on the general 

principles of attempt crimes, including the requirement that he committed “‘“an act that 

[went] beyond mere preparation.”’” (People v. Foster (2007) 155 Cal.App.4th 331, 335; 

§ 21a [“[a]n attempt to commit a crime consists of two elements: a specific intent to 

commit the crime, and a direct but ineffectual act done toward its commission”]; 

CALCRIM No. 460 [requiring “a direct step towards committing the crime”].) A court is 

required to instruct a jury on general principles of law relevant to the issues raised by the 

evidence. (People v. Townsel (2016) 63 Cal.4th 25, 58 (Townsel).) Here, the court 

instructed the jury that it must find that the defendant “tried to prevent or discourage” a 

victim or witness from testifying, but did not explicitly state that whatever the defendant 

did to “try” must go “beyond mere preparation.” We need not decide whether the pattern 
21

CALCRIM No. 2622 instruction is defective because the omission of this additional 

explication is harmless beyond a reasonable doubt. (See Neder v. United States (1999) 

527 U.S. 1, 15-18 [omission of an element of a crime is not structural error, and may be 

harmless beyond a reasonable doubt].) In this case, the jury unanimously found that 

defendant committed at least one overt act in support of the conspiracy to dissuade a 

witness; because each overt act alleged in the conspiracy count went “beyond mere 

preparation” and accomplished “‘“some appreciable fragment of the crime”’” (Foster, at 

p. 336), the jury’s findings on the conspiracy count render harmless beyond a reasonable 

doubt any instructional error on the attempted dissuasion count.

B. Instruction on the requirements of the Criminal Discovery Act

In the midst of Detective Jara’s testimony that she seized police reports containing 

Rodriguez’s address from the hotel room where Yorba, Martinez and others were staying, 

the prosecutor asked the trial court to take judicial notice of section 1054.2. That section 

is part of the Criminal Discovery Act (§ 1054 et seq.), and specifies who may possess 

“the address or telephone number of a victim or witness” disclosed to the defense by the 

prosecution under section 1054.1. The court subsequently informed the jury that section 

1054.2 provides that “other than attorneys and investigators, no one else is allowed to 

have” the “addresses and telephone numbers of victims or witnesses” and that their 

possession is a “crime.” The court then read subdivision (a)(1) of section 1054.2 to the 

jury. After Detective Jara testified that no one—not even a defense attorney—may 

lawfully possess a police report containing the victims’ or witnesses’ unredacted 

addresses, the court instructed the jury to “disregard[] totally” its earlier “summary of 

what 1054 is” and ultimately admitted a copy of the entire statute as an exhibit. The 

court did not instruct the jury on the meaning of section 1054.2.

Defendant argues that the trial court’s decision to admit the statute as an exhibit 

rather than instruct the jury on the statute’s meaning contravened the court’s duties to 

instruct on general legal principles (Townsel, supra, 63 Cal.4th at p. 58) and to decide all 

questions of law arising during trial (§ 1124). We need not decide whether the court’s 

treatment of the issue was correct because the issue presented by the statute—that is, 
22

whether it was lawful or unlawful for Yorba, Martinez and the others to possess the 

unredacted police reports—is irrelevant. Their possession of the police report is pertinent 

to this case only because it is charged as Overt Act 10. Because an overt act need not

involve unlawful or illegal conduct (People v. Marquez (1994) 28 Cal.App.4th 1315, 

1325-1326 [an overt act “‘need not be criminal in itself’”]), the question whether section 

1054.2 renders possession of the police report a crime has no impact on this case, and any 

error is by definition harmless beyond a reasonable doubt.

III. Sentencing Errors

A. Duplicative offenses

Defendant argues that he cannot stand convicted of both conspiracy to attempt to 

dissuade a witness and attempted dissuasion of a witness. This is a question of law, and 

thus one we review de novo. (People v. Walker (2014) 231 Cal.App.4th 1270, 1275.)

Under California law, “it is generally permissible to convict a defendant of 

multiple charges arising from a single act or course of conduct.” (People v. Sanders

(2012) 55 Cal.4th 731, 736; § 954.)

5

 The sole exception to this general rule is that a

defendant may not stand convicted of both a crime and any of its lesser-included 

offenses. (Ibid.) The rationale for this exception is straight-forward: “Convictions of a 

greater and a lesser included offense are barred because the defendant cannot commit the 

greater offense without also committing the lesser. Conviction on both counts would 

effectively permit two convictions for the lesser offense. [Citation.]” (People v. Ceja

(2010) 49 Cal.4th 1, 6.) Where two crimes each have an element the other does not, they 

are not lesser included offenses (e.g., Rutledge v. United States (1996) 517 U.S. 292, 

297), and the fact that “the same evidence is required to support all elements of both 

offenses” does not change their relationship (People v. Robinson (2016) 63 Cal.4th 200, 

207).

Despite their similarities, conspiracy to attempt to dissuade a witness and 

 

5 Section 654 assures that the defendant is not punished multiple times for a single 

act or course of conduct.
23

attempted dissuasion with malice and as part of a conspiracy are not lesser-included 

offenses. The crime of conspiracy requires proof of two specific intents—the “specific 

intent to agree to commit the target offense, and a specific intent to commit that offense.” 

(People v. Jurado (2006) 38 Cal.4th 72, 123.) The crime of attempted dissuasion 

requires proof that the defendant acted “maliciously”—that is, with the intent to “annoy, 

harm, or injure someone else in any way, or . . . to interfere in any way with the orderly 

administration of justice.” (CALCRIM No. 2623.) Because each crime has a different 

and non-overlapping intent requirement, the general rule allowing multiple convictions 

applies.

B. Enhancements for personal use of a firearm

The trial court added a 10-year enhancement for defendant’s personal use of a 

firearm under section 12022.53, subdivision (b) for both the assault with a semiautomatic 

firearm count and the assault by means of force likely to cause great bodily injury count. 

As the People concede, this was error. The 10-year enhancement under section 

12022.53, subdivision (b) can only be applied to certain, enumerated offenses. Robbery 

is one of them; the two assault crimes of which defendant stands convicted are not. 

(§ 12022.53, subd. (a).) Thus, the enhancement as to both assault counts must be 

vacated. Upon resentencing, this may shift the principal count from assault with a 

semiautomatic firearm to robbery.

C. Base sentence for conspiracy and attempted dissuasion counts

The trial court imposed a base sentence of seven years to life for the conspiracy 

and attempted dissuasion counts, citing section 186.22, subdivision (b)(4)(C). A jury’s 

finding that a gang allegation is true usually results in the imposition of a consecutive 

sentence of two, three or four years (id., subd. (b)(1)(A)), but the allegation can increase 

the base sentence to seven years to life if, among other reasons, the underlying felony 

involves ‘threats to victims and witnesses, as defined in Section 136.1” (id., subd. 

(b)(4)(C)). As the People concede, defendant’s conviction under section 136.1 did not 

involve “threats to victims [or] witnesses.” As a result, the court erred in imposing the 

enhanced base term.
24

D. Probation report

The probation report in defendant’s case erroneously lists his 1993 conviction for 

attempted murder as a conviction for murder. As the People concede, this is a mistake 

and should be corrected on remand. (In re Candelario (1970) 3 Cal.3d 702, 705.)

6

DISPOSITION

The matter is remanded to the trial court for resentencing consistent with this 

opinion. The trial court is also directed to correct the probation report to reflect that 

defendant suffered a 1993 attempted murder conviction in case number KA014509. In 

all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

HOFFSTADT

We concur:

_______________________, P. J.

BOREN

_______________________, J.

CHAVEZ

 

6 Because we resolve each of defendant’s claims on their merits or determine any 

error to be harmless, we have no occasion to consider defendant’s alternative claims that 

his trial counsel was constitutionally ineffective for not preserving the claims he raises on 

appeal.